Subordinate Legislation Committee, 28 Mar 2006

Meeting date: Tuesday, March 28, 2006

Official Report 165KB pdf

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Delegated Powers Scrutiny

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Planning etc (Scotland) Bill: Stage 1

I welcome members to the 11th meeting in 2006 of the Subordinate Legislation Committee. Gordon Jackson plans to attend the meeting, but he will arrive a little late. I remind members to switch off all mobile phones.

Under item 1, we continue our delegated powers scrutiny of the Planning etc (Scotland) Bill at stage 1. When we considered the bill at our meeting of 14 March, we agreed to raise a number of points with the Scottish Executive. We have now received its response.

Section 2 of the bill inserts new section 4(1) into the Town and Country Planning (Scotland) Act 1997. New section 4(1) confers a power to designate a group of planning authorities to prepare a strategic development plan. Members will remember that, although we were broadly content with the power, we asked the Executive about its consultation on such orders and why the bill does not include a statutory requirement to consult.

The Executive has confirmed that it will consult planning authorities on the proposed strategic development plan areas. It cited a couple of consultation papers from 2001 and 2004 where proposed geographical areas were set out and comments received. Are we content with the Executive's response and also that the power is subject to the negative procedure?

Members indicated agreement.

On new sections 7(1) and 7(2), "Form and content of strategic development plan", we were concerned that the first regulations made under the power, which set out the framework for development plans, may merit the use of the affirmative procedure, although subsequent regulations will probably be suitable for the annulment procedure.

As members will see from the response, the Executive says that the negative procedure is appropriate because the provisions in such regulations

"are likely to be focused more on matters of form than on the substance of plans".

Does any member have a comment on the response?

I agree that the new section is more about the process than it is about the substance and content of plans. Some quite significant issues are wrapped up in the regulations, however. For example, our legal adviser has observed that the drafting of the power in proposed new section 7(1)(d) leaves it open to the Executive to prescribe more substantive matters for inclusion in strategic development plans.

I am not sure of the exact point in the process at which the Executive will produce the draft regulations, but I think that it has committed to producing some of them before stage 3. When we see the draft regulations, I am sure that we will find little of concern. However, at the moment, the powers seem to be significant. I propose that we keep on the table the notion of pressing for the use of the affirmative procedure for the first set of regulations. Given that any changes thereafter are likely to be fine tuning, I accept that the Executive should have the flexibility to introduce subsequent regulations by way of the annulment procedure.

Would you also like us to ask the Executive when the draft regulations will be made available?

Yes. I think that I have that information in an answer to a parliamentary question, but that is not a reason why we should not ask to be made aware of that as a committee. That would be appropriate.

We will ask the Executive when the draft regulations will be made available; say that we are looking for the first set of regulations to be made under the affirmative procedure and that we are content for the negative procedure to be used for later regulations. Is that agreed?

Members indicated agreement.

We move to the points that we raised on proposed new section 12 of the 1997 act, "Examination of proposed strategic development plan". We sought clarification of what is to be set out in regulations and what is to be left to the examiner's discretion. The Executive has said that regulations will be used to set out the procedures for examinations. It has also confirmed that the examiner will have a choice over the form that the examination will take. Again, much will depend on the content of the regulations; the Executive's response gives only an outline of what we might expect them to include.

Nonetheless, the Executive's response has made the position much clearer and we can be less concerned about what is proposed. That said, if the Executive can clarify the situation in response to our questions, perhaps it could have drafted the bill more clearly. In the interests of clarity, the Executive might care to reconsider some of the wording in the bill to clarify the precise difference between the two measures. At present, it appears that it is both prescribing the form of hearings and leaving it to the reporter's discretion—I use "reporter" as shorthand for all those who may be asked to preside over such hearings—to decide how the procedure will work in practice. That is what gives rise to uncertainty. The Executive could clarify the situation on the face of the bill, without changing in any way the substance of the provision.

We will write to the Executive, suggesting that that change would give the bill more clarity. We will also put that in our report.

It is not necessary for us to tell the Executive what should be done. The very fact that we have had these exchanges indicates our uncertainty over the drafting. In effect, we are inviting the Executive to do the work by means of a stage 2 amendment.

Yes. The final point that we raised concerned the use of the negative procedure. Are we content with the response?

Yes; I think that we are. At this stage, the issue is more one of seeking clarification of how the procedure will work than any concern about what may be in the regulations.

Right. So, we will seek clarification of how the procedure will work; say that we are looking for an Executive amendment at stage 2 to achieve clarity in the drafting; and confirm that the use of the negative procedure is sufficient. Are we agreed?

Members indicated agreement.

We move to proposed new section 19 of the 1997 act, "Examination of proposed local development plan". We sought clarification from the Executive on two powers under this section. Our first point was on the power at section 19(5). It mirrors our earlier point on proposed new section 12(3); the response from the Executive is also the same. I propose that we reply, using the same comment that we agreed to make on proposed new section 12(3).

I am slightly more concerned about this power than I was about the previous one. I am concerned that a local authority can depart from a reporter's recommendations.

Does that not relate to the next point on proposed new section 19(10)(a)(i)?

It does. Our first point is on the same procedural point that we raised on proposed new section 12(3).

I apologise, convener.

The substance of the comment is fine, convener.

Our comment on the power in proposed new section 19(5) mirrors that which we agreed to make on the power under section 12(3). Shall we repeat the comment?

Members indicated agreement.

We move to our second point on proposed new section 19. We said that the significant change of policy that is brought about by the power at section 19(10)(a)(i) is not reflected in sufficient detail on the face of the bill. Stewart Maxwell has a comment to make.

Given the importance of the provision, annulment is not the correct procedure to use. The ability of a local authority to depart from a reporter's recommendation is of crucial importance to individuals in our communities. I am not comfortable with the power being subject only to annulment.

Is that the general feeling?

I agree with Stewart Maxwell. The legal brief makes a useful point about the Executive's response. Some specified criteria have been offered and the brief asks why those criteria will not be in the bill. That is a good question because, later in this meeting, we will see the Executive's response to a fairly similar question on business improvement districts in relation to section 39 of the bill. That response says that the Executive will consider including some of the relevant criteria in the bill. That seems sensible, so I wonder why the Executive has not given the same response on this issue.

As normally happens, not all the criteria would necessarily be defined in the bill, but the most significant and obvious ones would be. It would then be possible to amend them by regulation.

Some fairly significant restrictions could be placed on the independence of local authorities, so, as well as the currently specified criteria being included in the bill, any subsequent amendments to those criteria should be made under the affirmative procedure.

Do we agree? Did you want to say something Adam?

No—Murray made my point when he said that there appears to be no reason why the criteria should not be in the bill.

So we will say that the criteria should appear in the bill and that any subsequent amendments should be subject to the affirmative procedure.

Members indicated agreement.

The Executive has explained the purpose of new section 22 of the 1997 act, "Supplementary guidance", and how statutory supplementary guidance will differ from non-statutory guidance. The Executive is reconsidering the drafting of the section—in particular, it is reconsidering the balance between planning authority discretion and ministerial regulation. We can keep an eye on this provision, and we are likely to have another opportunity to consider it at stage 2.

Do members have any comments?

No.

Are we content that the Executive will reconsider the provision and that we will come back to it at stage 2?

Members indicated agreement.

On new section 23D, "Meaning of ‘key agency'", the committee had concerns about the power to specify the meaning of "key agency". We sought clarification of which bodies were likely to be covered and whether it would be possible to identify any characteristics of such agencies in the bill.

We have received a very helpful response from the Executive, listing the bodies that it intends to include in any list of key agencies. However, the Executive would not consider it "helpful or meaningful" to include a description of key agencies in the bill, although it does give some general indications.

I note that the Executive does not consider it "helpful or meaningful" to include a description of key agencies in the bill, but that it clearly did find it helpful and meaningful to advise us that it considers key agencies to be bodies

"that hold information or provide services that are essential to preparation or delivery of development plans".

That sort of advice is precisely what we were asking for. So, if we have an adequate working definition, why is it not in the bill? The definition would make it clear what sort of bodies could be added to or taken away from any list of key agencies. The definition would clarify the whole of new section 23D and would give the Executive sufficient flexibility.

This issue is similar to the one that arose earlier. Is it okay that any future changes should be subject only to the negative procedure?

I do not think that there is a problem with that. The issue of whether the affirmative procedure was more appropriate only arose because of the total lack of certainty about what was to be included. Now that the Executive has clarified that, all that we would want is for the Executive to share that clarification with the rest of the world by putting it in the bill. If that happened, we could accept that the annulment procedure was appropriate.

Are we all agreed?

Members indicated agreement.

We move now to section 4 of the Planning etc (Scotland) Bill, "Hierarchy of developments for purposes of development management etc". We asked the Executive to clarify the scope of the meaning of "local" and "major" and, in particular, to clarify whether regulations will be made in such a way as to take account of the differing impact of developments in local and urban contexts. We also asked about consultation plans.

The Executive has said that the major projects will deal with the small number of large and complex applications in respect of which it is considered that the current two-month determination period is insufficient. The rest will be local developments. We are also told that the Executive is currently working on the thresholds for major developments and intends to consult on draft regulations setting the proposed thresholds.

Do members have any further points to raise on the matter? Try to keep away from policy issues, if possible.

This may be a policy issue, but it relates to the definition. The legal brief informs us that the Executive's response is founded on

"applications in respect of which it is considered the current 2 month determination period is insufficient."

What does that mean in practice? The Executive sets a target for local authorities to determine planning applications within two months and produces league tables that show performance, ranging from 50-ish to 80-ish per cent. An awful lot depends on whether, by that, the Executive means applications that councils should determine within two months because that is the target or applications that, in practice, councils take much longer to determine.

Virtually every housing application and industrial application will, in practice, take longer than two months to determine. If the Executive is applying the two-month period that is stated in its response as a way of measuring what it thinks will be classified as major applications, and if it envisages those applications being subject to independent appeal and all the rest of it, that does not concern me too much. However, I would be concerned if the Executive was saying that councils should try to determine those applications within two months—in which case they would be classified as local and there would be no right of appeal and all the rest of it. It is important how the determination period is applied in practice.

Ultimately, the decision of what goes in and what goes out might be a policy decision; however, for us the issue is how the Executive interprets the determination period and what status it will have. Will that be the official status, and what does the two months apply to? Is it the target, or is it the achievement in practice? If it is the target, it is an impossibly high hurdle for an awful lot of planning applications. If it is the actuality, I do not know how a hierarchy of applications will be established. It cannot be known how long a planning application will take until it is submitted and determined; therefore, one can only guess how long it will take to implement in practice. That is difficult to set out in regulations, and it is potentially worrying that the Executive would try to set that out in regulations that will be subject only to annulment.

We might ask for greater clarification of how the Executive will apply the two-month determination period in practice, and we might suggest that the regulations are potentially of such import that the first set of regulations should be subject to the affirmative procedure, accepting that any subsequent changes might represent the fine tuning of practice in the light of experience. That might be worth running past the Executive for its consideration.

Okay. We will state in our report that we need more clarity about the two-month determination and that, until we get that, it is difficult for us not to suggest that the first set of regulations should be subject to the affirmative resolution procedure. Is that a fair summary?

Members indicated agreement.

We noted that section 10, "Pre-application consultation", confers a Henry VIII power that is subject to annulment and asked why the 21-day time limit had been included in the bill.

The Executive says that it believes that that period strikes the correct balance between giving time for the planning authority to come to a view and not unduly delaying the application. The Executive is prepared to amend the period if it becomes evident in practice that some other period is appropriate. That would be done by regulations that, at the moment, would be subject to the negative resolution procedure.

I was happy with that the last time the matter was raised, and the Executive has explained why it has opted for 21 days in terms that I anticipated. The negative resolution procedure is all right for the regulation.

So, we welcome the response, which gives us clarity.

Members indicated agreement.

Section 12 is entitled "Keeping and publication of lists of applications". We were unclear about the extent to which the obligation to keep lists of applications, and proposal of application notices, departs from the current position. In its response, the Executive has explained the current and future legal position with regard to publishing lists.

Are members content with the Executive's response? Is it appropriate that amendments to the time intervals under the new statutory requirement should be made through instruments that are subject to annulment, or should the affirmative procedure be used? Are we content with what the Executive has told us?

Members indicated agreement.

We considered that the provision in section 15, "Manner in which applications for planning permission are dealt with etc", seemed to represent a significant increase in ministerial power and asked for justification of the use of the negative procedure and some indication of its intended exercise.

There are concerns about the Executive's response, because although it gives an explanation of why the Executive wants to avoid having a call-in procedure, it provides no justification for the fact that the regulations will be subject to the negative procedure and fails to explain why the prescription of classes of development will be sub-delegated to directions that are subject to no parliamentary procedure. Those are the issues that the legal advisers have flagged up.

I could not improve on the way in which the legal advisers have set out their arguments in paragraphs 51 and 52 of the legal briefing. Correspondence along those lines would express our concerns on the issue.

Is it agreed that we include those concerns in our report?

Members indicated agreement.

Section 16 is entitled "Local developments: schemes of delegation". We were concerned about the apparent downgrading of the system of decision making that would result from decisions being made by officials rather than by planning authorities; we were careful not to stray too far into policy areas. We asked the Executive to clarify its understanding of the operation of the new system and, in particular, how compatible it would be with the European convention on human rights. In particular, we were concerned about the role of elected members in any review proceedings.

The Executive states that regulations that are made under new section 43A of the Town and Country Planning (Scotland) Act 1997 will provide a framework for a fair hearing, which, combined with the right of challenge to the courts, will provide a procedure that is compliant with article 6 of the convention. Legal advice suggests that it will be possible to asses whether the review system is ECHR compatible only when the detail of the regulations that are made under new section 43A becomes available.

Do members think that the negative procedure, which is usually used for regulations that deal with administrative matters, will provide the correct level of scrutiny, or should the affirmative procedure be used instead?

I am still inclined to think that there are aspects of the proposed system that will require careful scrutiny. We would want to see the regulations quite early on.

I am particularly concerned about the role that councillors will play in relation to their officers. Elected members will act as the appeal court for decisions that are made by officials, even though both groups are part of the same corporate body. That is where the concern about ECHR compliance arises.

It is a bit funny to say that the proposed system is all right because people will have the right to go to the Court of Session. In effect, the Executive is leaving the law to be established by legal judgments instead of getting the regulations to establish it up front. It is not clear to me that the relationship between councillors and officials will be dealt with in the regulations. From reading all the subsections of proposed new section 43A, I have worked out that that could be the case, but it is not obvious that it will be the case, and we do not have the regulations yet.

It might be that the Convention of Scottish Local Authorities, for example, will be relied on to produce codes of guidance for councillors. If we knew that the issue would be covered somehow and that someone would have responsibility for dealing with it, that would make our scrutiny more straightforward, but we simply do not have enough information. As we do not have the regulations, we do not know whether they will attach to the issue the importance that I think they should attach to it, which means that I would not feel comfortable to say that I was happy with the use of the negative procedure. We might want to come back to the issue at stage 2, if the regulations have been produced by then and we have greater clarity on how the Executive proposes to proceed.

I suggest that we say in our report that clarity is still needed on the matters that Murray Tosh outlined and that it would therefore be useful if we could see a draft of the regulations when they are available. We can say that, in the light of that, we continue to advocate the use of the affirmative and not the negative procedure. Do members agree?

Members indicated agreement.

Section 35, "BID Revenue Account", will give the Scottish ministers the power to

"make further provision in relation to the BID Revenue Account."

We asked the Executive about the width of the power. In its response, the Executive outlined the likely content of regulations made under section 35 and confirmed that they would be similar in nature to regulations in England that make provision on equivalent matters. Are members happy that the regulations would be subject to the negative procedure, as they would be technical and administrative?

The Executive's response clarified all the issues.

Section 39 is on the power of veto. The committee asked why the criteria for veto were not set out in the bill. We were worried that section 39 contains a Henry VIII provision. The Executive explained that it has not yet finished consulting on the scope of the criteria, but indicated the likely nature of the criteria and expressed willingness to amend the bill to reflect the stated criteria. The Executive also indicated that it wants to retain a delegated power to amend and add to the criteria. We welcome that response, but we might have to revisit the matter at stage 2.

By all means. We can be satisfied if the Executive amends the bill along those lines. The issue relates to the committee's discussion about key agencies; a similar approach would have added a degree of clarity in that regard.

We do not take issue with the Executive's having the power to amend or add to the criteria through delegated powers, which is reasonable.

Do members agree that the negative procedure would be sufficient?

No. We should wait to see the amendment that the Executive lodges at stage 2 before we take a view on that.

As an incentive to the Executive, we can say that it is distinctly possible that we will be satisfied if the amendment makes matters sufficiently clear. As we form an overall impression of the bill we will probably evaluate how certain sections are handled differently from others. If the Executive creates the appropriate climate by providing greater clarity, it might get more agreement from us.

Can the Executive be tempted?

The committee has always shown a practical and intellectual flexibility—

We should stop there.

The committee has always extended a welcome to the Executive to engage on that basis.

Quite so. That concludes consideration of the Executive's responses to our questions on the Planning etc (Scotland) Bill.