European Document
The document has been circulated to members of the committee. It is about promoting non-governmental organisations that are active in environmental protection. The document has been referred to the Transport and the Environment Committee by the European Committee. All matters are laid out in the report for members' information.
We are asked to consider the document and to provide the European Committee with any comments that we think should be taken into account when that committee consults Scottish NGOs.
I seek clarification on the cost of the policy. The proposal is to extend the programme from a four-year period to a five-year period. The cost appears to go up from €10.6 million to €32 million. Although the geographical spread is to be widened, from what I have read—I might not have read as much as I should have done—I cannot see why there should be a threefold increase in cost. To go from a four-year period to a five-year period implies an increase of 25 per cent, which would be €2.5 million. I do not think that widening the geographical spread should require the remainder of that money. Can you advise me why the increase is so big?
I cannot advise you on that. It will form part of our observations and comments to the European Committee. We will seek that clarification when the European Committee discusses the matter in detail.
It seems to be a huge increase in public expenditure and, from what I have read, I cannot see that a case has been made for that increase.
That is a relevant point and we will seek clarification on it from the European Committee.
The European Committee intends to consult a number of environmental NGOs. I would like to know what form that consultation will take and when it will take place. If the European Committee is going to call witnesses, could this committee be informed so that some of us could attend that meeting? If the consultation involves written submissions, could they be copied to this committee?
In response to what John Scott said, I argue that the programme has to grow because it has been so successful. That is the whole point. Something that worked is to be continued in future.
If we do not have an opportunity to speak to the environmental NGOs through the European Committee, I would like that committee to find out whether the fact that the NGOs must be active at a European level in at least three countries would hinder Scottish NGOs in applying for the money. As an additional point, do the four UK countries count as more than three European countries?
I surmise that the answer to that question is no. You know the answer to that one yourself.
I reinforce all the points that Fiona McLeod has made. The NGOs have not lobbied me at all on the subject, so I am hesitant to comment on the document at the moment. However, I believe that it would be useful for the committee to listen to the NGOs when they come to the European Committee.
For the avoidance of doubt, I am not against the NGOs. I am seeking clarification of why the budget has undergone a threefold increase.
Paragraph 13 of the covering note states that the increase
"is necessary to allow for the extended length and geographical scope of the programme."
You are right to say that that seems odd. Fiona McLeod is correct that the scheme has been successful and requires to grow. However, the explanation of the increase is specific; it is to allow for the extended length and geographical scope.
I have read the parts about geographical scope but they do not make the issue clear.
That is a relevant point and we should make further inquiries about it. We will report back to the committee in due course. The points that members have raised will be forwarded to the European Committee for consideration.
I now crave the committee's further indulgence. Those members who said that they would be coming today are already here. We have another document to discuss, but the problem is that members of the public are expecting the committee to deal with the Caledonian MacBrayne issue at a certain time. We might inhibit their ability to be present for that discussion if we consider the document now.
We have two choices. We can take a break until 10.30 am, when the Deputy Minister for Transport and Planning will arrive to deal with the annulment motion, or we could continue with the items on the agenda.
I suggest that we consider item 7 in private now.
I therefore crave the indulgence of the members of the public who are present. We will go into a short private session to consider our report under item 7. I apologise for all the confusion, but this is the best management of our time and your time.
Meeting continued in private.
Meeting continued in public.
I thank the minister and his officials for agreeing to attend this morning's meeting at fairly short notice.
Members will be aware that, last week, we agreed to defer consideration of the Town and Country Planning (General Permitted Development) (Scotland) Amendment (No 2) Order 2001 (SSI 2001/266) and to write to the Scottish Executive to seek clarification of a phrase in the instrument relating to the completion of a telecommunication development.
I have written to the Deputy Minister for Transport and Planning and members have been issued with copies of the response that I received. Members will be aware that a motion to annul the instrument has been lodged by Fiona McLeod. A paper was circulated on Monday setting out the procedure for a debate on a motion to annul.
We had a substantial discussion with the minister of the instrument's provisions at a previous meeting, but members might want to clarify some technical points or raise other issues with the minister and his officials in advance of the debate on the motion. I remind members that the officials cannot contribute once we move to a formal debate on the motion.
I invite the minister to make any opening remarks that he feels are appropriate.
I will confine my opening remarks to thanking the committee for the invitation to discuss the matter.
I am here with John Gunstone, whom the committee has met before, and Flora Campbell.
I apologise for the fact that we gave you such short notice that we would like you to attend today's meeting, but we received your letter only on Saturday morning, which meant that Monday was the first opportunity we had to invite you.
Before we come to the formal debate, I would like some information on a few specific items. The debate is not merely a political process; it is to do with helping communities that have doubts, local authorities and companies. One of the major areas of doubt relates to the definition of an installation that has been completed within 14 days. Even after our discussion a fortnight ago and the letter that you sent, I am still unclear about the matter. I will take a forensic approach and highlight the areas that I think are causing problems.
In your letter, you talk about what would constitute development under the Town and Country Planning (Scotland) Act 1997. The penultimate paragraph says that the attachment of a cable to the leg of a mast may not constitute development in all cases. Annexe A of the Scottish Executive development department circular 5/2001 deals with definitions—I feel like a lawyer now; it is a pity that I am not paid like one. It says that section 4(1)(d) of the Telecommunications Act 1984 defines as a telecommunications system a system for the conveyance of
"signals serving for the actuation or control of machinery or apparatus".
I would say that that is in contention with your statement that the attachment of a cable may not constitute development.
Section 4(3) of the act defines as a piece of telecommunications apparatus any apparatus
"which is designed or adapted for use in connection with the running of a telecommunications system".
A couple of the on-going disputes between local authorities and power companies relate to the laying of power cables or fibre optic cables that send the information that makes the mast work.
I put it to you that, given the terms of the 1984 act, unless a development was totally completed—built, powered and supplied with data—within 14 days of 23 July, which would be 6 August, the companies could not continue to operate the development. I would appreciate guidance on that matter.
We have been careful not to say that that need not be the case—I hope that you do not mind my use of the double negative. The question of what may or may not constitute development in that context is not one that is absolutely firmly defined in the legislation. At any point in the planning system, what constitutes a development is open to interpretation. The obvious area for debate on the interpretation of the area that we are discussing is how far a cable that is there for the supply of electric power, for example, is part of the telecommunications system, as distinct from the cables that are there for the broadcasting of radio frequency emissions. I can see that there is perhaps room for dispute in that regard. That is why we have not attempted to provide an absolute definition of what constitutes development in this context.
The general principle involved in this matter is that it is for Parliament to make law and it is for the Executive, in proposing law, to explain its intention. At the end of the day, the interpretation of law is always a matter for the legal process and the courts. As far as we can, we have explained the intention and have drawn up the legislation to deliver on that intention, but we cannot offer a 100 per cent definition of how the situation should be interpreted in law.
When there are disputes of this kind, we want authorities and operators to seek a positive way forward, rather than try to find infinitesimal legal differences. Those on both sides of a dispute who are unwilling to compromise will, soon afterwards, have to sit down and talk to the same people about another project and might regret not having taken a more positive approach in the first place.
I feel that we have entered an area that would be better dealt with during the formal debate. I hoped that we could use this informal session to seek greater clarification of, for example, the parts of the Telecommunications Act 1984 that I have quoted. If you do not feel able to provide such clarification, we will reach a stalemate and I will have to wait until we enter the formal debate.
Minister, would you like to respond to that or move on?
If we move on, I will return to the matter at a later date. Unless I have misunderstood Fiona McLeod, the fundamental question she is asking is to do with the precise interpretation of the law. The answer to that is that, although we may have views, the law is for the courts to interpret.
What would be the impact of Parliament annulling the order? Would it address Fiona McLeod's concerns with regard to improving the ability of communities to object to particular developments that took place around the 14-day transitional period or would it produce less clarity for the courts to interpret?
I think that it would reduce the clarity for reasons that I will explain in the course of the debate.
The question of what constitutes development is quite separate from that of the transitional arrangements introduced under the order. Had we not introduced a transitional arrangement, the question of what constitutes a completed development would have arisen at another stage. The example that has been used—whether an electrical power cable is part of the telecommunications development—would have had to be dealt with regardless of whether there was a transitional arrangement.
It seems that the minister is telling us that, where there is confusion, communities might have to go to court.
Does the minister's team have examples of legal judgments in other planning contexts that might reassure communities that going to court could be productive?
I will defer to my colleagues on that question. For clarification and to assist them, are you asking whether there are other cases of a community or a planning authority wishing to dispute the definition of a permitted development?
In other planning contexts.
If you mean in any planning context in which the development has gone ahead, no case occurs to me.
Flora Campbell (Scottish Executive Finance and Central Services Department):
I cannot think of any specific cases, although much has been written about what is development.
Development is defined in the legislation. Thereafter it is a matter for the planning authority to assess whether development has occurred in the particular circumstances.
Another aspect is the authority's enforcement of the planning system, which is a matter for planning authorities. Off the top of my head, I can say that there have been other cases in which enforcement action has been taken successfully when there has been a dispute about whether something was permissible under the terms of planning permission or the conditions attached to it.
If there are no further questions, we will move to the debate on motion S1M-2246, in the name of Fiona McLeod.
I want to put on record that it is unhelpful that the only wording that I could use in the motion was that "nothing further be done" because nothing could be further from my intention. I hope that if the committee agrees with my reasoning and votes accordingly, the minister will go away, pick up the points that need clarification and produce a new guideline swiftly, which will negate all the current problems. I feel that it is important to record that in the Official Report and that we should also produce a new set of words for the rest of the Parliament.
The main reason that I lodged the motion for annulment is that SSI 2001/266 is deficient. We should not be surprised that it is defective and deficient as it was rushed in at the end of last term and breached the 21-day rule. A letter had to be sent to the Presiding Officer to explain why that had happened and to make the argument for doing it. We already know that the legislation is defective and deficient because just days before it was due to come into force, the original order had to be withdrawn and replaced with the one that we are discussing now. There have been problems with the guidelines since June.
I have already quoted the example that causes most concern at the moment and I will repeat it in this part of the debate. One of the biggest problems is that the order was introduced within two days, to allow the 14-day period of grace. Therefore, installations had to be completed by 6 August. Much of the order's deficiency hinges on the fact that the legislation was rushed in within two days. It was not thought through and we did not have a definition of "completed". The letter that we received from the minister last Friday contradicts circular 5/2001, national planning policy guideline 19 and planning advice note 62. I have already quoted the parts from circular 5/2001 that give cause for concern. Those are the definitions of what an installation is, contained in the Telecommunications Act 1984—mainly in section 4(1)(d) and in section 4(3), which I have already quoted.
It is important that we take that on board because, as of yesterday, I know of at least four local authorities in Scotland that are facing a lot of pressure from different telecommunications companies. They may eventually have to resolve those problems by going to court and I do not think that it is appropriate that local authorities should have to spend taxpayers' money testing a deficient and defective guideline in the courts.
The issues that the four councils that I have contacted and have information about are facing are not all based on the power and cable supply problems that I brought to the committee's attention. There is talk of one mast for which no fence was erected, although it is clear from the guidelines, the circular and the Telecommunications Act 1984 that a fence is part of an installation. Without a fence, therefore, an installation cannot be complete. In another case, an antenna is missing. Again, the NPPG circular states that an antenna is an intrinsic part of a telecoms mast. If it was not there by 6 August, I would say that that mast had not been completed. Councils face wide-ranging problems relating to interpretation of the guidelines.
Lewis Macdonald said in his opening remarks that not everything can be firmly defined in legislation, that there is room for dispute and that he wants that. He also said that the Government may have views but that interpretation lies with the courts.
I contest that view on a number of points. I bring to the minister's attention the introduction to the planning series, which says that NPPGs
"provide statements of Government policy"
and that
"Circulars … also provide statements of Government policy".
If it is a statement of Government policy, it should be clearly defined and definitive; it should not be up to the courts to interpret it. My understanding is that the courts will not interpret a defective instrument, but will simply dismiss it. If they did that, we would be back where we are, with the guidelines needing to be clarified and replaced.
It is completely inappropriate that local authorities and communities should have to take on the financial penalty of tackling incompetent legislation through the courts when they are dealing with a brand new piece of legislation that is accompanied by an enormous amount of guidelines, guidance and explanatory notes.
Members will not be surprised to hear me say that, had the Executive accepted the SNP's position on full retrospective planning permission for all masts, we would not be in the position of interpreting what the 14-day grace period means, or what a completed or uncompleted installation is. I hope that the minister and the committee will agree that the legislation is defective and deficient. Rather than put local authorities and communities on the rack, as they are at the moment, and through the courts, with all that expense, the minister should withdraw the order and come back quickly with legislation that is fixed and ready to be implemented throughout the country.
I move,
That the Transport and the Environment Committee recommends that nothing further be done under the Town and Country Planning (General Permitted Development) (Scotland) Amendment (No.2) Order 2001, (SSI 2001/266).
First of all, I want to take on Fiona McLeod's allegation that the legislation is in some way defective and deficient. We have discussed the reasons for introducing the legislation when we did. It is worth reminding ourselves of the work that was done by the Transport and the Environment Committee, the Executive and the many others who contributed to the consultation, to achieve the outcome that the order that we are considering today implements in law—the introduction of planning controls to the telecommunications industry.
Having reached that point, we were right to press on and implement the order at the earliest date. We did that in June and, as Fiona McLeod said, we explained to the Presiding Officer our reason for doing so—it was because we were particularly committed to implementation at the earliest date. I therefore make no apology for the timetable. As with all matters legislative, we wished to proceed as quickly as we could. That is what we did, and we have produced the legislation that is before us today.
On the question of completed development—with which we began—there are issues of definition in relation not only to this legislation but to the whole spectrum of development decisions that lie before planning authorities and on which planning authorities have to make judgments. In introducing the legislation, we were mindful of what we regard as a fundamental principle of the planning system, which is that we leave as much discretion and latitude as possible to planning authorities as the representatives of local communities. Having said that, it is true to say that the NPPGs and the accompanying documents are statements of Government policy. Members will be aware from our discussion on the review of strategic planning a couple of weeks ago that we are keen to give the NPPGs even greater force in that regard. However, all policy, like all law, is subject to the interpretation of the courts. The fact that the legislation is Government policy gives it force and is one of the considerations that would come into play in a judgment on a particular case. It is for planning authorities to make planning judgments with regard to carrying out enforcement action.
The Executive's general position is that we should not discourage planning authorities from carrying out enforcement when it is believed that developers have ignored conditions or the terms of any permission granted. As I said, the issues that we are discussing would apply regardless of whether transitional arrangements were in force.
With regard to Fiona McLeod's motion, we must be aware of the consequences of annulment. I want to address the transitional arrangements and the need for the introduction of the second order during the summer.
Having introduced the initial order in June, it was clear that it raised a number of legal possibilities. As I said, legal interpretation must always be a factor, which is why we wanted to reduce the scope for legal uncertainty. That is why we introduced the transitional arrangements when we did. Because there was no previous case of permitted development rights being withdrawn and replaced with a requirement to seek planning permission, there was no existing case law. That meant that differing views might be held by various people. It quickly became clear to us that among planning authorities and developers there were at least two and perhaps three differing views about how the withdrawal of permitted development rights would work in practice. The industry expressed a view that any development that had commenced before 23 July, under permitted development rights, would continue to be permitted. That meant that a construction that began on 22 July 2001 and was completed by 22 July 2002 would benefit from the permitted development rights.
An extreme version of that view was that, as long as a development had been notified under permitted development rights—for example, if it had been on a list of 20 developments that was submitted to a local authority—it would be permitted even if it had not begun by 22 July. Another view was that the withdrawal of the permitted development rights took effect at midnight on 23 July, after which no further development would be allowed.
We were keen to remove such ambiguities, which is why we introduced the order, which made it clear that no development could begin after 23 July and benefit from rights that were withdrawn on that date and that any development that was in progress on that date could benefit from permitted development rights only if it were completed within the 14-day period of grace, which has long since expired. Because that period has long since expired, the annulment of the order would not have any impact on the additional elements introduced by the order.
In answer to Bristow Muldoon's earlier question, it is worth making it clear that anything that was done under the order in that 14-day period would not be affected by the annulment of the order. Therefore, in material terms, the removal of the transition period—the annulment of the order—would not delegitimise or take away the rights under which any development was completed during those 14 days. The annulment has no impact on development on the ground. The legal position is pretty clear from the statutory instruments that govern the work of Parliament—rights acquired under legislation are not removed by the later repeal of that legislation. The fact that acquired rights are not affected is an important point.
Equally, although there is room for conflicting legal opinions, the revocation of the present order would not—in our view—revive the initial order. Again, it is important to be clear that the order, like statutory instruments in general, comes as a whole and includes the entire planning control system that we introduced for other problems, as well as the transitional arrangements that we added. It is our opinion that the revocation of the order would lead us where no one wants to go—into an area of great legal uncertainty. To me, the one certainty is that the planning system that we introduced under the order would cease to apply.
We have talked before about the fact that many people in the industry recognise the change in circumstances that the planning system has imposed on them and are increasingly willing to talk to planning authorities about how to proceed with the roll-out of their programmes. We do not want to offer any temptation to those in the industry who might take a different view and regard the repeal of the legislation as an opportunity to go out and resume the erection of masts under the former regime.
We do not want to go down that road. The proposed annulment of the order would plunge us all into great uncertainty and would do nothing to assist local communities in making their views known. On that basis, I hope that Fiona McLeod will reconsider and withdraw her motion.
Thank you very much.
On the wording of the motion to annul, chamber office and standing orders practice are employed. I am advised that at Westminster they pray against such instruments. The Scottish Parliament's system of conducting its business is much more understandable and orderly.
The position that Fiona McLeod is coming from is clear: she believes that the legislation should have been tougher. I recognise that that has consistently been her position, but we must analyse what effect the annulment she proposes would have. As the minister clearly laid out, the impact would be to throw the system that has been introduced into disarray. Fiona McLeod's argument is bizarre. She states that she seeks to improve the rights of communities, but annulment would reduce the rights communities currently have to influence the developments that concern them.
It also seems bizarre to argue that the courts should not have a role to play in adjudicating in disputes between planning authorities and developers. I would be interested to hear from others who might support annulment an explanation of what other system of adjudicating on such disputes about legality they would propose to introduce.
The minister has laid out clearly why the revised statutory instrument was produced: to define clearly the transitional period so that if any disputes could not be resolved by discussion between the planning authority and the telecommunications industry, the Executive's intent would be clear and the courts would therefore have information on which to base their decisions.
All that is being rerun is the SNP's loss of the argument about introducing retrospective legislation. It wants to make that argument again and again. Given that the SNP says that it does not want communities or planning authorities to use up time and money in court, it seems bizarre that it is arguing again for retrospective legislation that would have no effect other than regularly to put planning authorities in court with telecommunications companies. We should reject the motion that Fiona McLeod has lodged and allow the statutory instrument to proceed.
I have much sympathy with the arguments that Fiona McLeod made and particularly with her reiteration of the committee's original stance that all masts should require full planning control. I regret the fact that the Executive did not take that recommendation on board.
The way in which the committee deals with statutory instruments rarely gives us enough time to discuss them in the detail that we would like. Today's situation is a good example of that problem. We have had only two days in which to consider Fiona McLeod's motion and we are in danger of committing the same mistake as Fiona laid at the Executive's door—rushing in legislation to cover a gap too quickly.
I listened carefully to the minister's explanation of the problems that would ensue if we annulled the order and to what he said about acquired rights not being affected by the order's revocation. At present, I shall continue to listen to the arguments. I offer no consolation to the SNP or the Executive. I am minded to abstain on the motion, because we have had insufficient time to give the instrument the consideration it deserves.
I appreciate that the Executive's instrument will leave some questions about what constitutes a completed development, but most cases could be sorted out with common sense from the planning authority and the telecommunications company involved. Making a list of everything that is allowed and not allowed is inflexible and puts a straitjacket round a planning authority, which may want to suit its local area. We cannot have the inflexibility of everything being cut and dried. Local authorities must have some flexibility in planning.
I appreciate what the minister said. If we annul the instrument, the transitional arrangements will fall and no one will know what is and is not permitted. We could descend into a chaotic system. I do not agree with the SNP on retrospective legislation, which would be a recipe for disaster. As Bristow Muldoon said, people could be in the courts for years on that.
The telecommunications industry is extremely important to us. We all need our mobile phones. As a Highlands and Islands MSP, I need my mobile phone for communication. Another Highlands and Islands MSP—Mr Duncan Hamilton—has said, "Right enough, as a Highlands and Islands MSP, there are times when I need to know the party line fast and I cannot get through to SNP headquarters on my mobile."
That is because the SNP has no policies.
That may have been uncalled for.
We must take a sensible decision about whether we want telecommunications to progress in a regulated way, whether we want to allow local authorities flexibility or whether we want to put a straitjacket on them. We do not want to descend into chaos—[Interruption.]
That mobile phone ringing is an irony. Perhaps it is Duncan Hamilton phoning the Press Association.
This is about achieving a balance. I am trying to reconcile in my mind what the minister said about the need to leave latitude for planning authorities with his desire to reduce legal uncertainty. The two seem to conflict slightly, but the balance is probably right—when there is legal uncertainty it is for the courts to decide.
Perhaps I am naive, but it is unfair to Fiona McLeod to say that the SNP is trying to introduce retrospective planning: that is not what she is trying to do. Nonetheless, I will vote to approve the instrument.
Transitional arrangements are inevitably messy because it is difficult to introduce a new regime and to replace an old one. I am not sure that the mechanism that was introduced was a particularly happy arrangement. In Baljaffray, which is in the area that I represent, people were concerned about the transitional arrangements and the fact that they had to fight a second battle with one of the mobile phone companies. I am concerned that Fiona McLeod's proposal might result in the people of Baljaffray being in the same situation for a third time—they would have to defend their area against an inappropriate development that would be close to a primary school and a nursery. For that reason, I strongly oppose Fiona McLeod's proposal.
One point that was central to the committee's initial discussion has been missed in the debate—of the members present, only Robin Harper, the convener and I were committee members during the lengthy sessions on the matter. We argued strongly that there needed to be continuing dialogue between local authorities and the telecommunications companies that are involved with implementing development plans. We felt that such dialogue was a way of avoiding in the medium term unsuitable new sites and of dealing with some of the existing unsuitable sites. Given that planning controls are with local authorities, I cannot see why it is in the interests of telephone companies to be engaged in a long process of litigation over transitional arrangements because there is a longer-term game. Because of the legislation, those companies must engage with local authorities.
I am not concerned about the legal issues, but it is essential to promote dialogue. Fiona McLeod's motion to annul the instrument is the wrong mechanism to make a political point and it is not well matched.
I agree with Robin Harper and John Scott's point about the lack of time for consideration. I have just joined the committee and the volume of material on the telecommunications industry is large.
The gist of Fiona McLeod's argument is to point out the inconsistencies between the circulars—or policy documents—that were produced by the Executive, and the instrument. That is an important point and the minister admitted that one of his goals is to reduce the scope for legal argument and interpretation. The committee and the minister have a duty to produce sound legislation. The allegations that Fiona McLeod's proposal is a party political exercise are unfortunate to say the least.
I have learned something from the debate. If I were to be cruel and party political, I would say that the department has not exactly covered itself in glory with its competent handling of the production of material and policy documents—or even the administrative process—but I will not do that. Fiona McLeod has raised the issue in a valid manner and I will certainly support her.
All members have had the opportunity to speak. Unless other members have anything pressing to say, it is my intention to ask the minister to respond to the debate and then to ask Fiona to close on her motion.
This has been a constructive exchange of views; it is clear that there are a number of views in the committee. It is important to reiterate that the policy of transitional arrangements was deliberately undertaken. Adam Ingram kindly refrained from the temptation to be critical of the process. In fact, in the past few weeks we have produced new versions of the national planning policy guideline and planning advice note, and a further circular, all of which create a clear, positive and helpful framework for planning authorities to determine how to apply the new planning regime to the telecommunications industry. Planning authorities and telecom operators have commented on the usefulness of those documents in guiding the kinds of development that will be acceptable to all sides and encouraging the kind of positive dialogue that has been mentioned by one or two members of the committee as critical to how we proceed on this matter.
Baljaffray was mentioned—I was very aware of that at the time. It is important to note that the transitional arrangement we introduced was for an extremely limited period for the completion of developments that had already been undertaken. I will not pretend to engineering expertise in the field, but I am talking about the kind of developments—in the one or two disputes that still continue—that are more or less complete. The developments that stood to benefit in any way from the transitional arrangement were those that were already well under way. It was not the planning authorities but the telecom operators who complained to us about the nature of the transitional arrangement and the fact that it did not allow them a lot of latitude in practical terms. The purpose, of course, was that no latitude should be allowed other than for the completion of projects that had genuinely already begun.
John Scott, Robin Harper, Adam Ingram and others have said that there is a need to find a balance between flexibility and local discretion on the one hand and a clear legal framework on the other. The Executive's role is not to provide a detailed guide to case-by-case disputes but to minimise the occurrences of disputes and provide a clear legal framework within which negotiations can go ahead. We have done that clearly and effectively, but we will monitor carefully the arrangements we have put in place and the ways in which telecom operators and planning authorities implement those arrangements.
It is in nobody's interests for planning authorities and telecom operators to get bogged down in detailed legal disputes over the handful of cases that have been mentioned here, where there is some doubt about whether completion was achieved by 6 August. The big picture for planning authorities and telecom operators is maintaining the authority of the planning system as the voice of local communities in dealing with the roll-out of the next generation of mobile phone telephony. If that is to happen, people will have to learn to talk to each other in a positive way and not get bogged down in legal dispute. We will keep the regulations under review and monitor their application.
Fiona McLeod's motion does not assist in any of that: it only offers more uncertainty and instability. We want to provide a period of certainty and stability that will allow negotiations to go ahead positively around the roll-out of third generation networks. Again I ask Fiona McLeod to consider withdrawing her motion. We have heard what has been said and we are keeping a close watch on how matters work out in practice. I urge members to consider the bigger picture.
I offer Fiona McLeod the opportunity to make some concluding remarks and ask her to indicate whether she wants to press her motion.
I will press the motion and I hope to outline why. The minister was with us a fortnight ago discussing this matter, which means that we have now had three debates on it. The reason for that is the ambiguity that surrounds the guidelines. I reiterate that the motion was the only mechanism available to me: we cannot amend guidelines; we can only accept or reject them. I also contend that the motion gave the minister a mechanism for clearing up the ambiguity, especially the ambiguity over the transitional arrangements.
The minister could have cleared up—a fortnight ago, earlier today or in this debate—the ambiguity about what a completed installation is. That action would have saved four local authorities and at least three telecommunications companies the cost of going to court. It would also have saved hundreds of local residents the anguish that they are going through and the pain and cost of having to go to court.
I must press the motion because, in his final statement, the minister introduced more ambiguity when he talked about a completed installation and then added: well, a more or less completed installation. The ambiguity around the 14-day period and what a completed installation is could have been sorted today, but the minister has not taken that opportunity, so I must press my motion.
The minister talked about leaving discretion and latitude to local authorities. Perhaps it is only in the West of Scotland that we have telecom companies coming in and trying to throw things up in 14 days, but I do not believe that I am the only MSP who has suffered what I have suffered in the past six weeks. The discretion and latitude that the minister talked about leaving to local authorities' planning departments has just resulted in loopholes that have been seized upon by telecommunications companies.
The minister said that he wants compromise and dialogue, but where are the telecoms companies going in the future? It does not bode well for the future that telecoms companies are virtually saying to local authorities, "Take us to court. We're going ahead. We're doing it." A telecoms company has billions behind it. A local authority does not have the money to go to court. Again, those are reasons why I feel that I have to press the motion.
The Convention of Scottish Local Authorities told the Executive, after July, that there were problems. It anticipated the problems. COSLA has now been back to the Executive to say, "We've got these problems. Will you just define it? Will you advise us? Will you tell us what to do?" It is utterly deficient of the Executive to say, "There's your guidelines. Take them or leave them. We leave it up to you." I hope that the committee agrees with me that we say to the minister today, "Please. Go away and come back with no ambiguity, but with a clearly defined guideline that everybody knows how to put into place."
Members ask what would happen if my motion were successful. They say that it would throw everything wide open. Well, the telecoms companies are already in there like sharks. I do not think that we would be making any difference. I remind the committee that it is barely two weeks since this same department brought to the Parliament a piece of legislation that was applied retrospectively. Can we not ask the minister today to go away and produce new guidelines on the same level as he had to do with the Erskine Bridge Tolls Act 2001? Retrospective legislation is possible. We have done it.
I now move to the formal bit of our proceedings, which is to put the question. The question is, that motion S1M-2246, in the name of Fiona McLeod, be agreed to. Are we agreed?
No.
There will be a division.
For
Fiona McLeod (West of Scotland) (SNP)
Mr Adam Ingram (South of Scotland) (SNP)
Against
Mr Andy Kerr (East Kilbride) (Lab)
Des McNulty (Clydebank and Milngavie) (Lab)
Bristow Muldoon (Livingston) (Lab)
Maureen Macmillan (Highlands and Islands) (Lab)
John Scott (Ayr) (Con)
Abstentions
Robin Harper (Lothians) (Green)
The result of the division is: For 2, Against 5, Abstentions 1.
Motion disagreed to.
The committee has decided not to recommend annulment. That means that there will be no debate in the chamber, but the committee must still report to Parliament. I therefore suggest that we simply report the results of the committee's debate on Fiona McLeod's motion in the usual manner. We can confirm that we had a discussion and that annulment was not agreed to. Are members agreed?
Members indicated agreement.
I did not take part in the discussion—leaving it to members was useful.
The committee has almost come to the end of a long process, which has been enjoyable for those of us who have survived it over the months and years. We should not forget that we started from a position of general permitted development rights and progressed to full planning controls over ground-based masts. There are now fairly strict limitations on what can be done in respect of non-ground-based masts. Communities are now much more heavily involved in the process.
We did not get everything we requested, but the arguments have been well rehearsed—health is a material consideration in telecommunications planning—and we have moved forward significantly in involving communities in the process. Significant developments have taken place in the past couple of years, which are a good advert for the Parliament's committee system.
It is ironic that statements have been made about the plethora of documentation—we asked for that documentation. We also demanded that the Executive act quickly. I would argue that the process has been fairly quick and that we have maintained accountability throughout.
It is clear that we need to work with the industry. The message must go out loud and clear that telecommunications are essential—they are part of our social inclusion and economic development strategies—but that we felt that the balance was wrong in respect of involving communities. We have tried to correct the imbalance and the Executive has come a long way towards correcting it. We appreciate the efforts that have been made. Perhaps we did not get everything we wanted, but we got a heck of a lot.
I did not want to involve myself in the debate on the motion, but the committee's significant achievement should be recognised. The Executive came with us on many issues that we raised.
We will close our discussion on telecommunications for the time being, but I am sure that we will return to it in the future. I thank the Deputy Minister for Transport and Planning and his officials for attending the meeting, which I hope they enjoyed. We will see them again.
Meeting adjourned.
On resuming—