Transport and the Environment Committee, 27 Feb 2002

Meeting date: Wednesday, February 27, 2002

Official Report 145KB pdf

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Subordinate Legislation

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Town and Country Planning (Fees for Applications and Deemed Applications) (Scotland) Amendment Regulations 2002

Item 2 is consideration of an affirmative instrument. Members will have received a covering note on the regulations. They are laid under affirmative procedure, which means that Parliament must approve them before their provisions come into force. With that in mind, the sponsoring minister, Iain Gray, has lodged a motion that asks the Transport and the Environment Committee to recommend approval of the regulations. Margaret Curran is a supporter of the motion and is here to speak to it.

The Subordinate Legislation Committee considered the regulations at its meeting on 29 January and determined that the attention of Parliament need not be drawn to them. As we are required to report on the regulations by 9 March, we will follow the usual procedure for handling affirmative instruments. First, I will give members the opportunity to ask the minister and her official any questions that they might have about the regulations. I should point out that the questions should be genuine questions of clarification and should not stray into a substantive debate about policy.

After we have done that, I will ask the minister to move the motion. Other members will then have the opportunity to contribute to a formal debate on the motion, which must last no longer than 90 minutes. As Mr Scott—the Executive official, not the MSP—will not be able to participate at that stage, I ask members to raise any questions that he could assist with during the question-and-answer session.

I believe that John Scott seeks some clarification.

That is right. Actually, I have already intimated my question to the minister. Are the size of the fee increases outlined in the regulations in line with inflation and the retail price index? Furthermore, when were the fees last reviewed? That information would give us some indication of whether the increases are in line with inflation.

I am sorry, minister. I meant to give you the chance to say a few brief words about the regulations before we started. I now invite you to make some introductory remarks. Perhaps you could also take Mr Scott's question into account, if you feel that that would be appropriate.

Thank you very much. I am very pleased to be here this morning. This is my first appearance before the Transport and the Environment Committee, and I am sure that I will be back for more. Depending on how I get on today, I might or might not be looking forward to that prospect.

The regulations introduce new levels of planning fees which, if approved by the committee, will come into effect on 1 April 2002. I should make it clear that fees are not intended to address the full costs of development control as such costs include pre-application discussions, appeals and other non-qualifying activities. They are designed to cover only the costs of processing planning applications.

The Scottish ministers consider that the increase strikes the right balance between full recovery and the likely impact on the potential developer. Fees remain a very small part—considerably less than 1 per cent—of developers' costs and there is no evidence that they act as a deterrent to development. At the domestic property end of the scale, very few householders pay any fee at all as most minor development in this area does not require a planning application.

I want to highlight some indicative figures. The minimum fee for a factory or office development would rise from the current level of £210 to £220 on 1 April while the maximum for the same categories would increase by £500 to £11,000 for a building of 3,750 sq m or more. An application to build a new house will attract a fee of £220, whereas substantial alterations to a domestic property would be charged at £110.

The Scottish ministers believe that users and potential beneficiaries of the development control system should meet the costs incurred in determining planning applications which otherwise would fall to be met by payers of council tax and business rates generally. Even after taking into account the increase in fees proposed in the regulations, I feel that planning application fee levels continue to be modest and represent a very small proportion of developers' overall costs.

On John Scott's specific questions, planning fees were previously increased in June 2000. Local authorities have provided financial data which, when adjusted to remove inadmissible costs, demonstrate that recovery stands at 95 per cent against the policy target of full recovery. Although I acknowledge John Scott's point that that figure is slightly above the level of inflation, we must remember that fee levels were previously reviewed more than 18 months ago. Furthermore, the information on which the calculations are founded is based on data that relate to local authorities' past performances uprated to reflect current trends. As a result, it has been clearly demonstrated that we need to bridge a gap between actual and target objectives. The increase in fees not only addresses the recognised shortfall, but takes into account an element for inflation.

Thank you. Do any other members have questions?

I want to ask the minister about the maximums that local authorities are allowed to charge in relation to planning applications. For example, in the Milngavie area, a large and very controversial application has been submitted for a water treatment plant, which will cover a substantial amount of land. The cost to the local authority of processing that application will vastly exceed the maximum that the authority can charge the applicant.

When major public investments raise a series of planning issues on which the local authority is more or less forced to seek and pay for expert advice, is it reasonable that there should be a flat maximum charge of the kind that exists at present? Should the legislation be amended to allow for special circumstances—such as the nature of the application or the degree of controversy over it—that involve local authorities in costs that are in excess of those in other circumstances?

Many serious points about the way in which the planning system works were embedded in Des McNulty's question. We will give serious consideration to the matter in terms of his constituency interests and other related interests. I will let Mike Scott come in on some of the specific issues. The Scottish Executive development department has given considerable consideration to the operation of planning instruments and to the levers that we might use to address some of the serious issues that Des McNulty mentioned.

Broadly speaking, it is appropriate to keep the fee system as straightforward as possible and not to overcomplicate matters, which might happen if we had to vary the system according to local circumstances or to individual planning applications. I am sure that some people and local authorities would suggest that special circumstances pertained to all applications, which would lead to a complex and over-bureaucratic system of fees for applications. The development department has considered the matter. Mike Scott might want to colour in the details.

It must be remembered that the planning fee system is a balancing act. The policy objective of 100 per cent recovery of costs applies Scotland-wide, not to each of the 32 councils. Under the regulations, the type of application that Mr McNulty mentioned will cost £11,000, which will probably be balanced out over the piece by other applications that do not take up the full fee.

As it happens, East Dunbartonshire Council is faced with two similar major applications: the prospective £80 million to £100 million water treatment plant in Milngavie and the substantial application for the extension of the quarry at Douglas Muir, which is in my constituency. Those applications will cost East Dunbartonshire Council considerably more than £11,000. There are time implications for the planning staff and the cost of meetings, getting advice and support and producing maps. I have no idea what the total cost will be, but I am certain that it will be well in excess of £11,000 for each of the applications.

In that context, it seems unreasonable that a local authority should suddenly have to find substantial additional resources for its planning budget because of applications. With substantial planning matters, there should be an exceptionality provision under which the applicant would have to make a contribution that is more than the £11,000 fee. That cut-off point is not reasonable when in some cases the costs of processing applications are substantially higher. I understand that it is difficult to define exceptionality, but I want to highlight the issue.

We are straying towards a debate on that issue. I think that the minister understands the point.

I will try not to debate the issue. I take on board what Des McNulty says—it has a clear logic. Our minds are never closed to examining and trying to improve the system so that it works more effectively and in the interests of local people and local authorities. We have not received representation from local authorities on those points. If the occurrence of serious incidents throughout Scotland was making the system too onerous on local authorities, we would certainly look at the situation, but we have not yet received evidence to that effect. Our minds are not closed to the points that Des McNulty raised, but I reassure him that we will continue to consider the issue.

I have a genuine question.

I suspect that this will be hard to answer.

My question concerns the difference between paragraphs 3 and 4 of the schedule. The charges for glasshouses seem to be quite punitive in comparison to those for other buildings. What is the explanation for that?

I will refer that to the official.

The higher charges stem from legislation that was introduced in 1995, when there was a tremendous influx in the number of agricultural tenants switching to using glasshouses for production. That is the reason for the punitive charge, as you called it. However, such glasshouses can cover a tremendous area of ground. The charges reflect the basic tenet behind the planning fees, which is that the charges are based on the area of ground that will be taken up by the development.

The fees are not based on the expense of processing the planning application?

The two things are tied together. One needs a measurable and identifiable basis on which to base a planning application fee. For a housing development, it is easy to say that the maximum should be based on the number of houses but, for every other development, the fee must be based on the land that will be occupied by the development. Depending on the application type, the unit of measurement is either 0.1 hectare or 75 sq m.

As members have no other questions, the minister may move the motion.

Motion moved,

That the Transport and the Environment Committee recommends that the draft Town and Country Planning (Fees for Applications and Deemed Applications) (Scotland) Amendment Regulations 2002 be approved.—[Ms Margaret Curran.]

As no members wish to speak to the motion, does the minister wish to waive her right to respond?

I am happy to do so.

Motion agreed to.

I thank the minister and her officials for their attendance.

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Local Authorities' Traffic Orders (Procedure) (Scotland) Amendment Regulations 2002 (SSI 2002/31)

Item 3 deals with two further pieces of subordinate legislation, both of which are negative instruments and so do not require parliamentary approval. To date, no motion to annul the regulations has been lodged.

SSI 2002/31 was laid on 29 January 2002 and comes into force on 1 March 2002. The time limit for parliamentary action expires on 14 March. The committee is required to report on the instrument by 11 March. At its meeting on 5 February, the Subordinate Legislation Committee considered the instrument and raised some points about it with the Executive. The relevant extract from the Subordinate Legislation Committee report is attached to the covering note. Is the committee content with the instrument?

Taking into account the points that were made by the Subordinate Legislation Committee, I cannot say that I am entirely content with the instrument. There is obviously some doubt as to whether the amendment to the regulations introduces an element of retrospection. The issue boils down to whether one believes the Executive's interpretation or the Subordinate Legislation Committee's interpretation.

I am not happy that a piece of legislation that has been drawn up specifically to amend other legislation and to clear up a particular point should, in fact, introduce an element of increased doubt. We have to take the Subordinate Legislation Committee's views seriously. I know, convener, that you are a member of that committee. Perhaps you can clarify the situation for us. I am far from convinced that things have been done well.

The Subordinate Legislation Committee regularly raises questions with the Executive on pieces of legislation and the Executive responds to those questions. Individual members must decide for themselves whether they are satisfied with those responses. In many cases, debates or disputes will arise, because many of the issues raised are on points of law. As I am sure you are aware, many different opinions will be expressed on points of law.

The Subordinate Legislation Committee has raised its questions, and we have received the Executive's answers. It is for you to decide whether you accept those answers. If any member is dissatisfied, they have the right to move a motion to annul the order. However, no motion to annul the order has been lodged.

When does such a motion have to be lodged?

It would have to have been lodged in advance of today's meeting.

I see. I was unaware of that. I will let the matter rest, but I feel that it should be noted that a piece of amending legislation should not introduce a further unnecessary element of doubt into the legislation that it seeks to amend.

Any legislation can be subject to challenge. However, we could not proceed on the basis that, if anyone raised a doubt over a piece of legislation, nothing could happen until there was unanimity. If we took that approach, the Parliament would not pass any legislation, whether primary or subordinate. I therefore do not accept your point.

The clerk advises me that, if the committee wishes to defer consideration of the instrument, it can do so within the permitted time scale. The committee may defer for a further week. I am not in favour of that approach. I would prefer that we considered the instrument today, because I feel that members have had adequate time to read the papers and to lodge a motion of annulment if they so wish.

I share some of John Scott's reservations, but although we may be disappointed by some of the shortcomings of the instrument, none of those shortcomings are major enough to warrant sending it back for further consideration. I understand that we have to pass the instrument in full or else it gets jumped and we have to start again from scratch. Such a course of action seems to me to be disproportionate to the shortcomings that have been listed in our papers. On balance, it seems pragmatic to accept the instrument and let it go through.

This is a negative instrument, so it will come into force unless it is annulled by the Parliament. Annulment would require a motion to annul to be agreed to in this committee. The matter would then be referred to the full Parliament. If members wish, they may lodge a motion to annul. I do not feel that we should take that approach in this case. However, as I say, it is for members to decide.

The role of the policy committee is different from that of the Subordinate Legislation Committee, which considers the dots and commas of legislation. Our committee's job is to consider policy implications. The case for the defects that the Subordinate Legislation Committee claims exist is not strong and does not have policy implications for us. I am a bit dubious about going too far into those issues.

It would help members to have a cover note for such negative instruments that tells members who want to launch an objection or discuss an instrument to tell the clerks before the meeting. That would be a good housekeeping rule. Such instruments are often provided in a bunch. If a front sheet said, "You must get in touch with the clerk if you want to discuss an instrument," that would have two advantages. It would prompt people to follow the correct procedure for raising an issue and allow instruments that people did not want to discuss to be taken on the nod. If the procedure had not been followed, we would not have to spend time debating an instrument. A cover note would help.

I agree that that would be useful. I recollect that the previous convener asked members to adopt that approach some time ago. It would do no harm to reiterate that on the cover note that accompanies statutory instruments that are subject to the negative procedure and to advise members of the action that they require to take to object to an instrument.

As we have no motion to annul, do we agree that we need take no action on the regulations?

I disagree. I would like to press for the matter to be deferred to next week, but if the committee overrules my suggestion, so be it.

John Scott proposes that we defer consideration to next week.

In addition to a cover note, it would occasionally be useful to question someone on instruments.

To be fair, if people had said that they wished to object to the regulations, the Executive would have made witnesses available, but no one objected before the meeting. That is why I stress that people should read the papers sufficiently in advance of the meeting that they can raise such issues.

Do members agree to John Scott's proposal that we defer consideration of the instrument to next week's meeting?

No.

There will be a division.

For

Scott, John (Ayr) (Con)

Against

MacKay, Angus (Edinburgh South) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Radcliffe, Nora (Gordon) (LD)

Abstentions

Harper, Robin (Lothians) (Green)

The result of the division is: For 1, Against 5, Abstentions 1. The proposal is disagreed to. Do we agree that we have nothing to report on the regulations?

Members indicated agreement.

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Water Services Charges (Billing and Collection) (Scotland) Order 2002<br />(SSI 2002/33)

The order was laid before Parliament on 1 February 2002 and comes into force on 1 April. The time limit for parliamentary consideration is 17 March and we require to report by 11 March. The Subordinate Legislation Committee considered the order at its meeting on 12 February and determined that Parliament's attention did not need to be drawn to the order.

The order allows local authorities to continue to collect water charges on behalf of Scottish Water. Given that no motion to annul has been lodged, does the committee agree that it has nothing to report on the order?

Members indicated agreement.