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We move now to item 4 on our agenda. The committee will take evidence from the Royal Town Planning Institute in Scotland. Our witnesses are Roger Kelly, who is the convener of the institute, and Alistair Stark, who is the immediate past convener. I welcome them to the committee.
I welcome the fact that representatives of the Trump Organization have agreed to meet the committee. We look forward to their answers to members' questions.
We concur with Mr McLetchie's remarks, which are welcome, as is the attendance of the Trump Organization next week.
I am the convener of the Royal Town Planning Institute in Scotland for the present year, and my colleague Alistair Stark was convener last year. Our director, Veronica Burbridge, hoped to be here this morning but is unable to attend, so we are here to answer your questions and will do so from our perspective as a professional body.
Have recent events raised any concerns for you as town planners? What is your view of recent events such as the one involving Trump or the one at Aviemore?
Concerns have been raised as a result of public discussion of the issues. We have stated our concern that clear guidance and clear procedures should be available for all to see. The recent reform of the planning system in Scotland has yet to work itself through, but there will have to be a clear system for decision making that is known about and clearly understood. Our concern is for the longer term: we have to get things right and ensure that we have an accountable and transparent system.
Your submission to the Public Petitions Committee has been sent to us. Do you have any specific concerns about the role of politicians in live planning applications?
The planning service and planning decisions are often political. That will always be true, and it is right that planning decisions should be part of the political life of communities up and down Scotland. It is not surprising that planning decisions can be political. The important thing is to ensure that the system is transparent and accountable, so that people can see how decisions are made and can learn lessons from those decisions that will throw light on future decisions. We must learn and we must ensure that the rules are clear and understood by all concerned.
Do you see a departure from past practice? So far, the First Minister, Nicola Sturgeon, Bruce Crawford and Richard Lochhead, who are all Cabinet members, and Fergus Ewing and Mike Russell, who are ministers, have all been drawn into commenting on live planning applications. A new culture in the new Government of involvement in the planning process is a worry.
As I said, involvement is a given, in the sense that people and their political representatives are bound to be concerned about things that happen in their communities throughout Scotland—that is not surprising. All that we should be sure of is that we have a clear and accountable system for dealing with that. In Scotland, we have done very well in the past, but perhaps we have not been quite as clear as we could have been in laying down the ground rules. Such rules should be simple and straightforward: guidance with a light touch. We do not need to tie everything up with regulation, particularly as, working in planning, we have to be open to ideas and to new proposals. That is what our system aims to do.
Should there be a review of the guidelines or of the ministerial code that covers the involvement of ministers?
It is an excellent moment for that to take place because we are reforming the planning system.
You mention—or rather Dr Burbridge, the national director of the institute, mentions—in a letter to Mr Swinney on 12 December that the institute does not comment on individual planning cases. Will you confirm that that is the case?
Yes.
So, talking about golf courses in Aberdeenshire is not part of your remit here today.
Certainly not.
The letter goes on to talk about issues of principle but, as far as I can see, it clearly refers to the Menie estate. Are you clear about the remit of the letter, and are you in full agreement with it?
Indeed. I was present at the executive committee of the RTPI in Scotland the day before the letter was sent, as was my colleague, Alistair Stark.
The letter talks about
We are talking about issues that were raised by members. Many points about planning were being raised in the media and by the public and, naturally enough, many questions were put to our institute in Scotland. The letter was sent to reflect that level of interest and concern, and to set out the institute's position. That is part of our mode of working—communication is important.
Just to clarify, when you talk about concerns that were raised by RTPI members, which members—without naming them—are we talking about? Did the membership get in touch with you?
We are talking about a number of members being in touch with us, yes.
Good morning, Mr Kelly and Mr Stark. How common is it that when your members who work as local government planning officers recommend acceptance of a planning proposal to the relevant planning committee, that committee takes a contrary view and refuses the application?
It is not unusual—I cannot put a number on it for you, as those are not data that I would expect a professional planner to collect. I would expect the members of any committee that is charged with taking a planning decision to listen carefully to the advice that they are given by officers and then reach their own decision. However, it is not unusual for a recommendation not to be accepted, although it happens in only a minority of cases. That is the nature of democracy, and I would not have it any other way.
Let us say that a planning official recommended acceptance of an application but the planning committee rejected it, for a reason. If the applicant appealed to the Scottish ministers against that decision, would your members, as professionals, have difficulty preparing an appropriate position paper or submission for the appeal process, in connection with the Scottish ministers' consideration of the application?
None of our members should put forward as their own an opinion that they do not hold as professionals. That is where the line would be drawn. However, it is open to one of our members, speaking as a professional, to explain the position of the council that took the decision. If a member feels so compromised that they are unable to support a decision by their authority, they must withdraw from giving evidence at the inquiry. If they offered as their own an opinion that was not their professional judgment, they would be in breach of the code of professional conduct.
However, your members are entitled to assist in the preparation of a submission that sets out the authority's opinion, as long as they do not represent that opinion as their own.
That is correct.
Is it not their professional responsibility as employees of the authority to submit and state the authority's position, regardless of whether they agree with it?
That is correct.
In the case of the application that we are discussing, how would the professional integrity of those of your members who work for Aberdeenshire Council be compromised if, as professionals, they simply represented to an inquiry or in a submission to ministers the council's position?
Again, this is a matter of fact and degree. Many complex issues are embedded in the Trump application, as is the case with most complex applications. Our members may have no difficulty presenting an opinion on the vast majority of issues. However, an application may include some elements on which the professional opinion must be different from the employer's opinion. That issue must simply be faced at the time.
However, the duty of the professional, as an employee, is to represent the authority's view. If an authority turns down an application, for a number of reasons, is it not the professional responsibility of that authority's employee to prepare the appropriate papers and submissions that set out the formal reasons for the refusal?
That is correct. We must remember that members of other professions, as well as professional planners, may be involved. Legal support staff have a slightly different code of conduct in relation to these matters.
In the situation that I have outlined, the professional integrity of your members could not be compromised if they simply represented professionally the authority's views and its reasons for rejecting the application.
There might be some angst surrounding the issue, which would have to be thought through carefully and responsibly, but there are means of addressing any difficulty that might arise. We would hope to find a resolution in due course.
It is understood that the Trump development proposal contravened at least nine local plan and three structure plan policies—you might accept that as a fact for the purposes of my question. Notwithstanding the recommendation that planning officials made to Aberdeenshire Council's infrastructure services committee, those contraventions obviously weighed heavily with it, and it thought that they justified refusing the application, albeit on a casting vote. If a committee cites the contravention of at least nine local plan policies and three structure plan policies as the reason for taking a decision, would there be any difficulty in members of the Royal Town Planning Institute in Scotland as planning professionals making a submission in an appeal process to the Scottish ministers that says that they favoured rejection of the application because it contravened those policies?
I do not wish to comment on the application per se.
No, but I am giving a scenario.
I see no great difficulty in principle in members of the institute doing as you suggest in that scenario, but individual issues and the views of individual officers have to be—and would be—carefully considered.
I want to move on to appeals that have been upheld and the awarding of expenses to appellants. If an authority can justify a decision that it has taken by referring to a proposal's contravention of nine local plan and three structure plan policies, in your professional experience, how likely do you think it would be that an award of expenses would be made against that authority?
We should start by considering section 25 of the Town and Country Planning (Scotland) Act 1997, which obliges an authority to consider the provisions of the development plan, which you have mentioned, and any other material considerations. Development plans are not blessed with prescience. Development will always come up that was not anticipated when the development plan was prepared, and in such instances—I understand that this happened in the case to which you are referring—the development plan is not a perfect guide. Other material considerations must be taken into account. Sometimes a difficult balancing act must be performed. We are talking about such a balancing act in this case.
I accept that a balancing act is involved, but it is not unreasonable to refuse an application because it contravenes nine local plan and three structure plan policies, although there may be things in its favour. If it is reasonable to reach such a view on balance, surely it cannot be reasonable for the Scottish ministers, once they have considered an appeal, to award expenses against an authority that has made such a reasonable judgment. Is that fair comment?
Reasonableness can be judged only in individual instances. What may be reasonable in one set of circumstances may be unreasonable in another set of circumstances. The principal issue that anyone who considers a claim for expenses would look at would be whether procedure had been properly followed. If it had not been, that would be deemed to have been unreasonable, and a claim for expenses would be open.
There is no question about the processes in this case.
Well, that is the first instance that would be considered. The second one is whether any reasonable authority could have reached the same decision. If the answer to that question is yes, there is no claim for expenses.
Would it be reasonable for an authority to reject an application that contravened its local plan in nine instances and its structure plan in three?
It would not be if it had not considered other material considerations.
Yes, but those are things that could be weighed on both sides of the reasonableness balance.
Yes, the application would have to be examined in that light.
Gentlemen, thank you for agreeing to come along this morning so promptly. It helps the committee in its consideration of the issue.
The first point to make is that the case is unusual for a number of reasons, but that does not make it an irregular case. It is an unusual case, from which lessons can be learned, and—as with any unusual case—it is particularly important that it is handled in a way that is clear and transparent to all. Our members are concerned not that something should not be done or has not been done but that something should be clearly seen to be done. They are also concerned that the steps that are taken and the accountability should be clear and transparent to all, not only in this case but in other future cases that may raise unusual issues, so that people can understand how decisions are arrived at and how procedures work.
The submission that Dr Burbridge made to the committee on the institute's behalf says, quite rightly, that the Scottish ministers may intervene and gives a number of examples of when they may intervene, one of which is if the application is of national importance. Is it the institute's finding that the application is of national importance? If so, would it not have been reasonable to call it in even before it went to the Aberdeenshire Council planning committees?
There are a number of times and places at which call-ins can be made. The powers are there to be used and the institute's concern is that they be used clearly and transparently, that everyone be clear about the reasons for their use and that everyone be clear about the reasons for the decisions that are made. That concern is raised by an unusual case; it is our determination to learn lessons from the case and others at this critical time, when we are hoping to move to a system that delivers more rapidly and develops trust on all sides of the development industry.
Good morning, gentlemen, and thank you for coming. I refer to the letter of 12 December that your national director, Veronica Burbridge, wrote to John Swinney. The start of that letter says:
I am afraid that I do not know the answer to that. The inquiries went direct to our office in Melville Street in Edinburgh and would have been handled by Dr Burbridge and her staff. It was not an enormous proportion of our membership, but it is highly unusual for any of our members to feel such concern that they raise such an issue with our office. We are talking about a small number of instances.
Do you mean five or six?
I really cannot tell you. I do not know.
I apologise for cutting you off, but I asked that question because the executive committee decided to write to Mr Swinney because of those representations. Is either of you gentlemen on the executive committee? If the executive committee made that decision, then surely the national director would have said that you had four, five, six or seven representations—or however many representations were made.
I chaired the meeting of the executive committee, as I was convener at the time. We did not ask that specific question; we did not think that it was necessary to do so, I am afraid. We were concerned that any of our members should have felt it necessary to voice their concerns, which were for the future integrity of the entire planning system at a crucial time. Around the table were members of the institute who are charged with the orderly running of the profession in Scotland, and they were concerned. I, too, was concerned, mainly because I was seeing newspaper headlines that tended to suggest that a planning decision had been taken against the wishes of the populace at large and so on. There were all sorts of scare stories. The crucial point is that those headlines were not taking a balanced view of all the planning issues.
It is interesting that you should mention newspaper headlines. Some people would find it odd that, in the letter that you sent to the cabinet secretary, you specifically mentioned representations that were made to the executive committee, but when the executive committee discussed the issue, you had no idea of the number of representations, although it was obviously a tiny amount. You have gone on the record here today and said that one representation could have been enough to solicit such a decision.
The letter was not written as an open letter per se. The committee's decision was to write to Mr Swinney and advise him that we had certain concerns based on the views that were voiced by our members and the executive committee, and on our reading of what was appearing in the newspapers. We also agreed that, should events take such a turn that further inquiries would be made, the letter could be relied on to form the basis of a further response.
Would it not have been more appropriate for the RTPI to make official representations to ministers? You said that you were influenced by a tiny minority of your members—although you cannot tell us how many—and that you were directly influenced by perceptions that were placed in the media. Rather than write privately to a minister to raise your concerns, you decided to fuel media speculation by releasing such a letter to the media.
Last one, Bob.
In the letter, Veronica Burbridge says,
I see no tension there. The institute was commenting on and seeking to put down a marker on the way in which things were handled—which should be transparent. That goes without saying, and it of course applies to all cases. The institute has made representations in that way when dealing with planning reform legislation, and it does so all the time.
So you were making general points.
We were making general points. We were not making points about the Menie estate case. However, concern had been raised in the public's mind by that case.
Bob Doris has raised a point about the letter to the cabinet secretary. You said that the Menie estate case prompted discussion at your executive committee, that an unusual number of your members expressed concern and that you believed that you needed to write to the minister responsible about the future of the planning system. In your recollection of your membership of the Royal Town Planning Institute, has there ever been any other type of correspondence over the past eight years—in the history of the Parliament—in which your members have raised such serious concerns with a planning minister?
It is probably unfair to use the words "such serious concerns". Concerns were raised with the minister. Perhaps those kinds of concerns were not raised in the past merely because we had a different way of working in the system in Scotland in the past. Under the new arrangements, there is much closer contact between the institute in Scotland and Scottish ministers and between the profession and the Parliament. There is a closer individual link.
It was after serious consideration, discussion and press reports about the Menie estate that you decided to send a letter to the planning minister, outlining the concerns. In your memory, has the institute ever had such a discussion and sent a formal letter to the planning minister outlining its concerns about the future of the planning process?
I would regard such a letter as unusual. I am not aware of previous such occasions, but there might have been many, for all I know.
Mr Stark, do you remember the institute ever acting in a similar way?
I have been a member of the Scottish executive committee only since 2001. In my time, we have not commented in this way on an individual case. We have, on many occasions, commented on the operation of the planning system as a whole. We appeared several times before the Communities Committee in the previous session and gave evidence on many occasions, which is completely consistent with what we are now saying applies to an individual case.
But it is very unusual that you would write to the planning minister about such circumstances.
It is, but it is not at all unusual for us to be concerned with the operation of the planning system as a whole.
Absolutely, but you would expect the minister responsible for planning to take such a letter very seriously and, indeed, you would expect his officials to tell him that it was important and significant.
We would expect the minister to take our position for granted but to have in front of him a reminder of what our position is. That is what we were doing—making a timely reminder.
You sent the letter on 12 December. Has the minister responded to your correspondence?
There has been no direct response.
A yes or no will suffice.
No. That is it.
There has been no response.
There has been no response.
Thank you.
I should also say that we would not necessarily expect a response because we were putting down a marker.
So you would not expect a letter from the RTPI to receive the courtesy of a response.
We might have expected a response, but in the circumstances we are not surprised that we have not received anything. As I have said, we were putting down a marker and making a note to the minister.
The RTPI certainly played an important role in my past working life during the passage of the Planning etc (Scotland) Bill. It had positive engagement not just with ministers but, more important, with members who were wrestling with the implications of that legislation.
No, not to my recollection.
In your submission to the committee, you list the circumstances in which you would expect an application to be called in. As I understand from the list, an application would be called in on only one occasion other than when a local authority had decided in favour of it. Normally, a local authority would accept the application and ministers would decide to reconsider it because, for example, there were concerns about the development's implications or it was felt that the developer had not taken proper account of development plans. In all of those cases, there is call-in after an acceptance rather than a refusal. The only exception is when the proposal raises issues of national importance. Is it right that in the vast majority of cases, if not all, applications are called in as a consequence of a local authority's decision to agree to, rather than refuse, a development?
That is the case in the vast majority.
A call-in is highly unusual, but a call-in after a refusal is even more unusual. According to my understanding of planning legislation, the proposal in Aberdeenshire might be big but it is not one of national significance. What would make a development of such national significance that it would be called in?
The powers exist, and they exist to be used, for the benefit of the planning system as a whole—nationally and locally. There may be rare cases when the powers are used in a way that is not precisely defined in advance. However, they still exist to be used. The important point from our institute's point of view is that their use should be justified and that the clarity of decisions should ultimately be there for all to see.
So the vast majority of call-ins happen when the Government is concerned about how a local authority agreed to a proposal, and the circumstances in which a project is of such national significance that it has to be called in are rare—so rare that we cannot yet envisage them. It would be hard to imagine that a golf course, no matter how grand, would be captured by those circumstances. It is certainly not part of the national planning framework.
The powers are there to be used and to be justified in any particular circumstance; it is up to those who make the decisions to justify them. Of course, a case such as this is unusual, as you have said, because things have not happened in this way before. However, that does not mean that they should not or could not have happened—they might have done.
But they never have.
Yes, but an unusual case is not necessarily an irregular case. The point is that the way in which matters are handled must be clear. My colleague may have something to add to that.
I was an employee of Grampian Regional Council in the days when regional councils had the power to call in planning applications that were before district councils. In one instance, concern was expressed that a committee of a district council had agreed to approve an application that was considered to be of regional significance. I was instrumental in the administrative process of calling in that application to the regional council between the time of the committee's decision and the decision letter being issued.
But that would be because, once the decision letter had been issued, nobody could do anything.
That is correct.
However, you are talking about an application that had been agreed to. We are talking about circumstances in which an application has been refused and the defence position for the developer is the right to appeal. Would you say, from your experience as a planning professional, that there is no example of the definition of when a decision is made being relied on in those circumstances? When does call-in happen? Is there anything anywhere that you can point us to that says that an authority should be mindful of the fact that, in the circumstances of a refusal, even if a committee has made a decision, the definition of a decision is when the letter has been issued?
I am not a planning lawyer and I do not claim to be one, but my understanding is that the decision does not exist in law until the letter effecting it has been issued.
Is that more to do with how we define the clock ticking in relation to an appeal?
It is.
I have a final question. You will agree that the issue with the planning legislation is about how you build partnerships with developers and local communities, which is a matter of trust—it is not about being dictated to by anybody in the planning process. However, there are concerns about one being elided into the other—that, if you refuse a development, it is because you are anti-development as opposed to not being particularly happy with that specific development. Can you think of any examples of developers being perceived to have caused damage to their reputation because they have exercised their first-party right of appeal? People have expressed concern that a party with the first-party right of appeal may have more rights than others in the system. Have you ever heard it argued by those who have the first-party right of appeal—or by anybody in planning—that they would not exercise that right because, if they did so, it would somehow damage their reputation?
I have not personally come across that view except in the past month.
I have heard that suggestion made in the past, although I do not know how much credence to give it.
Do you have a figure for how many first parties appeal against local decisions without worrying about reputational damage?
The number is very small.
Thank you.
Hello, gentlemen. Your letter of 12 December says:
I am of the view that it has not been. We have to wait and make sure that, when the decision comes, it is clearly justified. Scrutiny is useful at all times, which is why we are sitting here today.
I will amplify that a little. On 11 December, we were faced with a situation widely reported in the press and on the television in which a council had properly reached a decision by its own procedures at that time. That was immediately followed by statements made outside the planning process that appeared to contradict the properly made view of the council's planning committee. That was a political decision with a small p.
Do you feel that you were being pressured to produce a letter? If so, was that because you were being contacted by media outlets or was it simply because the members of your organisation were pressing you to make some kind of comment?
There was a raft of emotions in the committee that day. We were conscious that for about five or six years we had been trying to design an improved, more efficient and more inclusive planning system. We felt that, as a profession, we had been constructive and had a good relationship with the Scottish Government at all levels and that a certain degree of progress had been made in those directions. Then we saw in the press something that, at times, looked almost like mob rule by comparison. That was a concern. We felt that if it were to become the norm that planning decisions were overturned on—as I described it—small-p political grounds, that would undermine the public's confidence in the planning system as a whole.
Did you contact any planning officials in the Scottish Government to discuss the matter with them before you decided to send out the letter?
No, we did not. There was a minor contact with the chief planner, Mr Mackinnon, to the effect that the Scottish executive committee of the RTPI felt that it wanted to send a letter to the minister and left the door open to Mr Mackinnon to respond. Just to be absolutely clear, the response from Mr Mackinnon was that the RTPI in Scotland must do as it felt it ought to do.
Mr Mackinnon is a member of your organisation, is he not?
He is indeed.
Then it is almost an internal issue for the RTPI in Scotland.
Yes. I will make it absolutely clear why we felt that it was important and worth while to contact Mr Mackinnon in that way: we did not want Mr Mackinnon to be taken totally by surprise that we had written to the minister. A copy of the letter to Mr Swinney was sent to Mr Mackinnon for information.
You said that the letter was a take-note letter to remind the minister of your position. Why did you feel that you had to do that? Did you feel that what your role was had slipped his mind? Is it your view that the issue was mishandled?
We had first to clarify our own thinking. We had to clarify in our own minds exactly what the position of the institute should be in the circumstances that faced us that day and what our position might be in the mêlée that was apparently erupting around the planning system as a whole. The future was unpredictable.
Indeed, it is certainly the collective view of the institute's executive committee. We talked earlier about the media. What media outlets tried to contact you for a comment from the RTPI?
I have not collated the series of inquiries. I personally was contacted on several occasions by the BBC—radio and television—and offered interviews to them. There were a number of newspaper inquiries, some to me and mostly from local Aberdeen newspapers, looking for background information on procedures rather than an opinion on the merits of the application. There were also a number of inquiries from the national press, some through our London office to our press officer, Andrew Kliman, and others to Dr Burbridge, of which you already know.
So you were in effect trying to defuse the situation—or would "clarify" be a better word?
Yes, clarify is a better word.
I have one other question. On 8 December, it was reported in the Financial Times that you
I do not recall that that was my personal comment. However, I think that planners have to stand firm for the integrity of the planning system as a whole. It is our professional duty to do so. As Mr Kelly explained, we are a charity responsible to the public for the sound operation of a good planning system in the United Kingdom and beyond. If professional standards are to mean anything, we must stand firmly behind them.
You mentioned that Jim Mackinnon was a member of the RTPI. As a courtesy, and as he was a member and involved, he was given a copy of the letter that the RTPI sent the minister. Did he have sight of just the final copy? Were earlier draft copies discussed with him? What was the extent of the discussion with him before the final letter was sent to the minister?
I am not aware that Mr Mackinnon was shown a draft of the letter. The first time that Mr Mackinnon would have seen the content of the letter was when it arrived on his desk. If I may correct you, convener, it was sent to him in his capacity not as a member of the institute but as chief planner and therefore adviser to the minister.
I may have misunderstood. I got the impression that there was some sensitivity around the executive committee sending that letter and the fact that Mr Mackinnon was also a member. Can you assure us that there was no discussion with Mr Mackinnon about the letter and that he saw no drafts of it before it arrived on his desk?
I am happy to give that assurance.
Mr Stark, remarks were attributed to you in the Financial Times on 8 December, as Kenneth Gibson said. I appreciate that you might not feel that you were accurately represented, but it was reported that you
I do not recall using those specific words. A number of press releases were prepared and, in the nature of press releases, they were collaborative efforts between press staff, staff in our Edinburgh office and me. However, I do not disagree with those words; I am quite happy with them.
The journalist was not asking about general principles but had a specific case in mind—that was the context in which the remarks were made.
No, I certainly would not wish to imply that in any sense.
I presume that the statements and the letter that you sent were produced in response to concern that mob rule should not become the norm, given the frenzy about the decision. Was it in that context that you told planning officials to stand firm and keep calm?
There was a substantial body of opinion—particularly in the written press—that the planning authority in the instance that we are talking about should have reached a decision that reflected majority opinion in the area. That is not an acceptable way to take a planning decision. One must listen to, evaluate and take into account public opinion, but public opinion can never be the sole criterion when taking a planning decision. We must stand firm on that principle.
Given statements that were made at the weekend, have you been reassured that one of the most important things that should be considered in the planning process is the number of jobs that will supposedly be delivered at the end of the process?
Of course it is important to consider the economic benefits that undoubtedly flow from many developments. That is always a planning consideration.
But it is more important to knock heads together in the planning process than to risk jobs. The planning process can be risked, but jobs cannot.
Let me try to put it this way: every development that is proposed brings benefit to the development's proposer, or it would not come forward. However, it is not unusual for a development to bring disbenefit of various sorts to the community. Sometimes the disbenefit is environmental and sometimes it is social, and sometimes there is economic disbenefit to other parties. Those factors, in so far as they relate to the use of the land, must be taken into account and balanced. It is a question of balance. The development plan is a prime source of advice on how to strike that balance, but it is not the be-all and end-all; other material considerations must be taken into account. It is a complex business and we must take account of all factors fairly, openly and clearly.
I am not as familiar with the planning process and planning legislation as some of my colleagues are. I have questions on a couple of matters and your professional expertise might help to inform my consideration. When an authority comes to a decision about a planning application, how quickly does it normally issue the decision notice? Is there an average time? Are there professional guidelines on the matter?
Normally, that would take place as quickly as possible—within a couple of days. In rare cases, it has taken longer for decisions to go out, and that has usually been for technical, legal reasons. However, all planning decisions should go out as rapidly as possible.
I know that you do not want to deal with particular planning applications, but we can talk about a hypothetical planning application that was discussed with this committee. We were told, and I quote, that there were clearly grounds for calling in the application in question, because
I see no reason to disagree with the point that you made first of all about the reasons for call-in. Reasons can be used to justify call-in. The way in which a decision is made locally is part of that, of course—but that is not to say that, just because a decision has proceeded in a certain way locally, it should or should not be called in. It is right that national perspectives are wide.
So even when an authority has, as Mr Stark said, made a decision after properly going through its procedures, the application could still be called in for reasons that a lay member of the public might feel no longer existed because the application had been rejected.
The point that I have been trying to make is that that would be a very unusual case.
Bob Doris wants to come back in—do any other members wish to do so? I am not pleading for people, but before I invite Robert Brown to ask questions I want to be sure that all committee members have had an opportunity. I call Bob Doris, who I hope will be brief.
I am still trying to understand the RTPI's reason and motive for entering the debate. It is fair to say that you entered the debate, because you made the letter to Mr Swinney public. I am sure that you knew that you would get a political reaction; in fact, I will go further and say that I am sure that you knew that you would get a party-political reaction. You have already said in your letter of 12 December that you were very aware of press coverage. You must therefore have been aware that the planning application was becoming not so much a political issue as a party-political football. Did it surprise you that, on 16 December, after the letter had been made available to the press, the Scottish Lib Dem leader Nicol Stephen said:
Thank you, but I do not wish to comment on anything that Nicol Stephen has said.
So, but—
He said no, Bob.
Do you believe that you have been drawn into party-political shenanigans?
It was no part of the institute's role or purpose to be drawn into any such events. Our concern was with the science and art of town planning in Scotland. That is why we acted as we did. We were careful, as far as possible, not to disturb a kind of political situation. We are merely concerned, in a non-political way, with the future of town planning in Scotland, with the respect in which the profession is held and with the way in which its procedures can be clearly seen to work. That is in everybody's interest, around this table and elsewhere.
But you could have done that privately with the Government rather than publicly through the media.
We thought that it was important to send the message to the minister, and that is what we did.
Thank you.
Good morning, gentlemen, and thank you for your presence this morning. I want to raise one or two specific points. As we have heard, a call-in after a refusal was unusual, if not unprecedented. Was there any dispute in planning circles about the legality of the call-in? Is it totally clear-cut that that can be done, or is there argument about it, whatever the balance of that argument is?
There was certainly no doubt in my mind that it could be done.
I have never heard the process questioned in that particular sense.
But it had never been done before. Was there an understanding before the issues arose that call-in was a possibility in the aftermath of a refusal?
It was and is my understanding that the possibility is on the table and that if the power has to be used, it should be used according to the advice at the time. I am sure that that is the way in which the Government and the chief planner saw the matter.
It is fair to say that behind the exercise of call-in decisions lie planning and legal considerations about issues such as the threat of judicial review and the appropriateness and reasonableness of the original decision. There is a mixture of legal and planning issues, is there not? You mentioned once or twice that Aberdeenshire Council would have had legal advice. When Alistair Stark was a planning official with Grampian Regional Council, he would have had legal advice. Would it bother you if a planning minister made a call-in decision on planning advice alone, without considering legal advice?
It helps to consider the matter in this way: there are two hurdles to be negotiated or issues to be considered. The first is whether it is legal to issue a call-in direction, and the second is whether it is a proper planning procedure to do so.
Whether it is challengeable, in other words.
There are two tests to be met. As far as I can see, the legal test was met perfectly and, as we have already explored, the Scottish Government judged—and I do not disagree—that there was a national interest in the case.
Your discussions on 11 December and your letter of 12 December followed Aberdeenshire Council's decision by a week or so. By that time, the centre of the issue had moved a wee bit towards the actions of the Scottish ministers and the First Minister's position. It had become clear by that time that the infrastructure services committee's decision was, as far as Aberdeenshire Council was concerned, the end of the road, for the reasons that you expressed earlier. Is that a correct rendering of the background at that time, as far as you can recall?
I can sum up the matter by saying that we were in desperate need of a clear statement of what procedure would be used from then on. I do not think that the public—remember that, ultimately, we are responsible to the public—were clear about what procedure would be followed from then on. Indeed, decisions are still to be made in that respect.
I confess that, even after all the questions, I am still a little unclear about the concerns that led you to stress in your letter the need for the procedure to be
In one sense, we were stating the blindingly obvious to ourselves: if the system is to survive, planning decisions must be open and in the public eye. The minute that we find that decisions are taken for obscure reasons and behind closed doors, we lose the public's confidence in the system. As I said, we were simply stating the obvious, reminding the minister of the importance of that and, subsequently, making a public statement to that effect, because we felt that it was important that the public should realise that.
The blindingly obvious was that there were issues about things happening behind closed doors, whether the process was transparent and exactly how the First Minister might or might not have been involved. Are those the kind of issues about which your members expressed concerns to you?
I am not aware of any of our members expressing a concern relating to anything that was said or done by an individual minister, including the First Minister. The concerns were about where the issue could lead and where it could leave public confidence in how planning decisions will be made in future.
Was the possible involvement of Scottish ministers in the decision-making process the background, or a significant part of the background, to the concerns that were expressed?
Because the application now lies with Scottish ministers, it is inevitable that the way in which they approach their decision will be the focus of attention. However, that is by no means the whole point.
We have heard many times in the course of the inquiry the use of the term "quasi-judicial" to characterise the planning system, both at council level and at the level of Scottish ministers. You will accept that that is the way in which the system is normally described, but can you clarify what it means? Is it a fair observation that transparency and the perception of fairness, impartiality and an open mind by decision makers at the appropriate time are key elements of the system?
I agree that they are.
Did you and your colleagues have concerns about transparency and the perception of the system as fair and impartial?
The issue was one of perception. In certain quarters of the press, there was clearly a perception that was starting to undermine confidence in the system.
There is a concern that the actions of Government ministers, rather than of Aberdeenshire Council, may open the decision on the application to legal challenge by discontented objectors in the area. Is it important that the legal and procedural decisions of Scottish ministers are both right in essence and seen to be right in essence, if we are to avoid creating significant potential for legal challenge to their planning decisions?
That is true not only of Scottish ministers but of anyone who takes a planning decision.
In this case, the call-in was a reaction to the decision to reject the application—it was not a decision made on appeal or a call-in preceding a decision. Concerns that the application breached the authority's structure plan and would affect sites of special scientific interest could not be considerations for Scottish ministers at that point, because the rejection of the application had taken them out of the picture. Do you follow the point that I am making? Ministers could not take quite the same impartial approach to the matter that they take when they receive an appeal as of new or call in an application before a council has made a determination.
There remained the issue of the application's economic significance, which could be argued to be of more than simply local importance.
My point relates to the perception of the situation, which was one of the issues that bothered you and your colleagues when you considered the matter and led the institute to write its letter.
The issue would have been in people's minds—any planner would have considered it—but I do not think that it was a major consideration. We were much more concerned about the future and reputation of the planning system as a whole.
You may want to say something about the matter, given the controversy and excitement that surrounded your previous executive meeting. Earlier I alluded to the fact that ministers have been drawn into commenting on at least three major live planning applications. Are you reassured that the situation is changing, or is there something that we could do to improve the current climate? There is a great deal of commentary on and criticism of the planning process, and ministers have commented on individual planning applications. Is there something that we need to do as a consequence of that? Given the comments and criticisms that ministers have made, it is fair to say that the Government—which says that it is a can-do Government—is unhappy with the current planning process. If the Government is unhappy, would it not be better for it to be up front about that and bring forward changes to the planning system? If so, what would those changes be?
Changes to the planning system are in hand. Following the passing of the Planning etc (Scotland) Act 2006, the Government has a whole raft of consultations on secondary legislation and procedures at the moment. The process is under way—to some degree. We hope that there will be a full and fair debate on the issues throughout Scotland. I do not fear for the process.
As a profession, we are working with the Scottish Government and communities around Scotland towards a clearer system. We intend to go on doing that. If we see ways in which we can help to thrash out some of the procedures and find softer ways of doing things that go beyond the hard bones of the legislation that has been enacted, we will try to use them.
Thank you for your time this morning. Your evidence was helpful and informative.
Meeting suspended.
On resuming—
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