Welcome to the seventh meeting of the Communities Committee in 2006. We have received apologies from Tricia Marwick. Sandra White, who is the substitute member for Tricia Marwick, might join us today, but we are unsure about that.
There has undoubtedly been far-reaching consultation. I think—having taken an interest in that and read reports of the various meetings that have been held—that the question is how that information and the concerns and comments of the various parties can be brought together to influence the new planning system. We are perfectly satisfied with our ability to provide comments and make observations.
The Executive has issued a commendable number of white papers and other preceding documents that, from a planning consultancy point of view, are easy to follow, well laid out and thorough. One of the key comments would be that it has taken many years to get to this point in relation to pre-consultation. In the industry, there is a full understanding of the issues and the chief planner and his team have engaged in a good level of explanation in order to take the information to the private sector.
The Scottish Executive should be commended on the way in which it has engaged with stakeholders in this process, from the early consultation period up to the introduction of the bill. It has engaged fully with Homes for Scotland, as a body that represents the housebuilding industry, and it has left us with the impression that everything that we have been saying to it has been carefully considered before proposals have been brought forward. It has set a good example of the way in which the public sector should engage with the private sector.
It has been especially helpful to have had the opportunity to attend in Victoria Quay seminars at which there is a hands-on approach and clear decisions are made after debate.
Do you believe that the bill will allow for a change of culture with regard to development, and ensure that the culture allows appropriate development and encourages economic growth in Scotland?
There is nothing in the proposals that would be a barrier to cultural change, but I do not think that, in themselves, the proposals will bring about that cultural change. It is difficult to change the culture in any industry or group. A significant problem that we encounter the length and breadth of the country when we speak to local authorities is that they struggle to recruit and retain planners, particularly in the more rural areas. Authorities may also struggle to give planners a clear career path in their organisations.
The bill will create an opportunity for us. I suspect that all of us want Parliament to enact the bill quickly, after which we will move on to seeing how we make the planning system operate.
I will add a comment about culture and development. In my submission, I suggested that perhaps through the bill, and certainly through further work by the committee and through secondary legislation, closer examination could be made of the good effect that development can have on the economy, on growing the population and on achieving a smart, successful Scotland—on meeting the Parliament's overall aims. I do not say simply that all development should be allowed, but that we should consider more carefully a presumption that good development is good for the economy, the population and the country's social development.
Several witnesses have highlighted the need to change the culture of local authority engagement. We will touch on that later in our questions. As developers and stakeholders in the planning process, are you under any obligations to be part of the culture change? If so, what obligations should be placed on you?
Architects are fixated on or obsessed with the quality of design and would like design to be highlighted and given more prominence in the creation of places. A progression of documents has helped with that aspiration.
As a developer, I can give the committee the inside track on the culture change that we are expected to deliver. It is important that developers be seen to be part of the process; there is an obligation on us to make our half of the system work. I have no doubt that a number of developers have in the past effectively played the system, so it is incumbent on us to help to make the proposals in the bill work.
We can look at the planning system as a distortion in the market. The market responds and adjusts to such distortions, which condition the way in which the development industry reacts. At the moment, the planning system is probably characterised as being confrontational and adversarial, and the market responds to it in that way—that is the game that must be embraced. If the bill suggests that a different approach is required, the market will respond to that. Colin Graham is right to say that there is already evidence that that is happening. The development industry is expected to deliver the approach that he describes; we will do so.
As I said earlier, we will return to the issue of resources. My final question is not about resources. If we put that matter to one side and accept for the moment that the resources will be available—later we will explore with you whether there are enough planners to deliver the bill—will the proposals deliver a planning system that is generally fit for purpose? Is the direction of travel correct?
The previous question was about the obligation on developers. In my view, they are obliged to provide clear, concise and accurate information. Recently, a friend of mine came to me for advice because he had received a neighbourhood notification for a significant development—a primary school. The information that has been provided by the local authority in question is, to be frank, very poor and misleading. There are differences between the information that the neighbours have received, the information that is in the planning office and the information that is in the local library. Although we are talking about basic elevations and plans, there are inaccuracies in them. As a construction professional, I understand why the errors have come about, but a member of the public would not.
It is fair to say that my evidence comes mainly from working on major developments in urban areas. Mr Levack's comments are vital, particularly in terms of smaller-scale developments.
We have to avoid thinking that we have risen to a particular plateau and that, from that vantage point, we have a system that is fit for purpose. The process is dynamic—I have watched it progress over many years. We are now at a particular point of review and improvement, but we will carry on until other influences make it necessary for us to appraise the system again. The bill is as good as we will achieve at this point. The aim of constantly trying to produce a system that is fit for purpose is a worthy one.
The best answer that I can give to the question whether the bill will give us a planning system that is fit for purpose is, "Probably yes." There are a number of provisions in the bill that developers such as Miller welcome. My concern is that we do not yet have enough detail on some elements. Without them, it is difficult to see whether the system will be workable on a day-to-day basis.
I am sure that we shall return to some of those issues.
Somebody mentioned the national planning framework—I would like to ask some more questions about that. Given that, under the new proposals, the national planning framework may include specific developments, what impact do the witnesses feel the proposals will have on the development industry in Scotland?
We have been able to see the NPF in embryonic form since the first draft came out two or three years ago. It was a helpful lead for us to see an open statement of the Executive's—and, in the future, the Parliament's—views on development at national level. I think that a lot more can be done in that document and that more healthy debate could be had about it to select the national projects that might be fast-tracked or debated at the highest level. We must also weave some targets into that document, and the statute should also say how often that document would be prepared. Simply saying that it should be done from time to time is not good enough if the same legislation says that development plans have to be done every five years.
Assuming that we can get a definition, would you support applying it to the NPF and not just to the local development plans?
Yes, and I think that what is said in the definition will cascade through the strategic development plans and the local development plans.
Does anyone else want to comment?
One of the problems that we constantly have to deal with is the lack of infrastructure and community facilities to support the developments that we are promoting. The national planning framework provides an opportunity to send powerful signals about the geography of investment, where we should be investing in our roads and transportation systems and our water and sewerage systems, and where there should be major investment in schools or other community facilities. The framework adds geography to investment proposals, and on the back of that it sends clear signals to the development industry about where public investment will be given and will suggest that that is where they should look to bring out their development proposals. Equally, there are places where it is less likely that developers will get support for certain development proposals.
I would like to ask another question, to expand on those issues. Other members of the panel are welcome to comment.
The proposed 40-day period is nowhere near long enough for Parliament to assess the NPF fully. The development industry would like certainty that once the NPF has been finalised it will be delivered. That means front loading as much of the consultation as possible. We do not want to skimp on the consultation, discussion and assessment as the NPF is prepared, only to find that we have problems further down the line in delivering major schemes. I would endorse as wide and as long a consultation process as will be necessary to ensure that what goes into the NPF is not delayed when we get to the point of planning applications.
My understanding is that the intention is to publish the second NPF in 2008. When I read the proposals, my concern was that it is stated that there will be more emphasis on implementation in the second NPF than in the first one but, equally, there are notes regarding extensive consultation. My concern would be how we can accommodate both. The timescale may be unrealistic to have the second NPF published on time. I do not know whether it has already been prepared as we speak, but bearing in mind some of the tough decisions and consultation that will be required, I would hope that it has been started.
One would hope that somebody is thinking about it at some level.
What is possibly important is the preliminary and the peripheral discussion of the document if it is in draft for many months beforehand. We are all aware that many planning applications end up being decided on in a 20-minute planning committee meeting, which is often healthy and well-informed debate because the matter might have run for two years on its route to that point. I am not as familiar with the parliamentary process as committee members are, but there may be scope for a much more thorough pre-process as an NPF works its way to the final parliamentary debate. In local government, there is quite often a pre-briefing and pre-discussion. It may be that this committee has a function in that. An examination in public is effectively what a robust parliamentary discussion might give the NPF. I would probably be against that kind of more inquisitorial formal forum for that document.
I have some difficulty with the notion that Parliament should arrive at a conclusion that should be subject to an inquiry before—
It could be the other way round.
I would feel much more comfortable about that. If the nature of the way in which the Parliament considers, examines and takes evidence on the NPF leads it down a similar path to an EIP, then fine. I am extremely nervous about trying to give advice on the relationship between Parliament and the Executive in respect of how the NPF is dealt with. We expect the process to be transparent and rigorous, because we expect the NPF to send clear messages and to provide the certainty that Colin Graham was talking about.
It is always helpful to see the big picture. I see the big picture as being the NPF, within which we should not find a break between the development plan system and what might suddenly happen in European legislation. It is also important that we define and flag up our priorities, particularly on issues such as sustainability.
I differ from some of my colleagues in that I would welcome an examination of the spatial elements of the NPF in advance of its adoption by the Parliament and ministers. I do not want the NPF to set out certain investment priorities only to find out, further down the line, as the planning process goes forward and we get into the detail of the infrastructure projects, that the priorities are not acceptable or deliverable. We should sort out as much of the detail at the front end to avoid uncertainty at the back end.
That is useful. I will roll together a few final questions so that we can move on. Do any of the witnesses have further views on the type of developments that ought to be specified as national in the NPF? What is the development industry's role in delivering and implementing the NPF? Do you have any views on the role of agencies such as Scottish Water in delivering the content of the NPF?
I will avoid the final question, otherwise we might be here for some time.
How disappointing.
As a non-planner, I have a problem with trying to understand the categories. Some developments will be viewed as being of national importance, but clearly any development will affect first and foremost local people and businesses. There is no clear definition of the term "national importance". The Executive talks about transport projects, and I can see that if the M8 did not exist or needed to be upgraded, such a development could be of national importance. However, it would affect many communities. Therefore, I am still struggling to understand the classification "national development".
The NPF should be about how the Scottish Executive sees Scotland's geography developing and, I expect, will send clear messages about where the Scottish Executive will put the infrastructure investment that it controls. Public bodies should be required to deliver against the geography of the national planning framework. The private sector's task is to use that to produce its development proposals. I envisage that the NPF will lay out the public sector investment priorities, or those elements of infrastructure that will be heavily influenced by public sector expenditure.
On categories of development, it is likely that road, rail and bridge infrastructure, airports and major rail stations will be the national priorities. A discussion is already taking place, in relation to the key transport hubs, about transport-related higher density development areas. That could be a very helpful national lead.
The national planning framework provides an opportunity to examine the overall economy of Scotland. It is not a big country, but nevertheless there are some great peaks and troughs. The national planning framework offers an opportunity to get support and infrastructure into economically deprived areas. That is one of the great benefits of having a national strategy.
May I quickly return to my earlier point?
Provided that you have an additional point.
Yes. The document suggests that a second national planning framework will be published in 2008, but nobody seems clear about whether work on it has commenced. I wonder whether a specific comment could be made in the document that is due for publication in 2008 about issues of national importance such as a further crossing on the Forth—it will perhaps be a little soon to make a specific comment.
You can trust us to put that point to the minister.
I will move on to development plans. I thank the panel members for their written submissions, which will be very useful to the committee. What impact might the development plan proposals in the bill have on developments in Scotland?
Our consultancy's response to that is short and sweet: we welcome the proposals. We are involved across the border. Given the morass—shall I say—of different documents elsewhere, the public and even consultants in England and Wales have great difficulties in understanding what is being proposed.
You would perhaps expect me to say that developers would quite enjoy a system in which development plans were not kept up to date, as that would give us a greater chance of doing developments that are contrary to the plans. However, we come back to the point about certainty and investment. We welcome the proposal to have a development plan system that is kept up to date, is regularly reviewed and is consistent across Scotland. One can see an on-going change in how developers are approaching major sites. There is a greater focus on development plans than there has ever been because, across Scotland, development plans are more up to date than they have ever been.
I am concerned about the gulf between the development plan system and the aspirations in the bill, given the number of plans that are well out of date. There will need to be a tremendous change in the level of resources if we are to be able to achieve those aspirations.
If you talk to some of my senior colleagues in the industry who remember the introduction of the plan-led system, they will tell you that, when they supported that, they never considered the concept of plans being out of date. If you have a plan-led system, it is fundamentally important that plans be kept up to date. The committee needs to ask whether the proposals will encourage authorities to keep them up to date. In our written submission, we say that the wording of the bill could be tightened up in that regard. We have presented a worst-case scenario in which, under the current wording, some plans might not be produced until 2011. That would hardly seem to be a smart, successful system for producing up-to-date plans.
I am sure that the committee will pursue those points. I take it that there is general support for the bill's proposals on development plans. In your written submissions and in your evidence this morning, you suggest that there should be penalties if the local authority does not achieve the goal of keeping the plan up to date every five years. Do you have any suggestions about what those penalties should be? Should they be included in the bill?
As my colleague Allan Lundmark suggested, the threat of having deemed planning permission granted for developments when the development plan is out of date would be welcomed by the development industry, although I question whether that is tenable on a day-to-day basis. If local authorities are to pay attention to the need to review development plans regularly, a robust system of penalties must be in place. If there are financial penalties or if a local or strategic development plan team is imposed on the local authority, I would have no issue with that.
Deemed consent is not something that I want to support or encourage. I am looking for other suggestions, if you have any. The matter has been raised with me before.
If a development plan was not going to be updated within a few months as part of its five-year review, a hearing could be established to determine what needed to be done and how long that would take. That mechanism could be used to bottom out the reasons why the plan was not being updated. The matter could be flagged up, say, two or three months before the due date and measures could be put in place so that the resources were seen to be in place to achieve the target.
I reiterate what I said earlier. First, if it were stated in statute that the plans had to be prepared, that would perhaps be stronger. I am not giving legal evidence, but that might mean that groups that were concerned that not enough energy was going into the preparation of a plan could take action under the bill and state that the planning authority had abdicated its responsibility. Incidentally, that might connect onwards to consultees who had not assisted in the process of the plan.
I want to move on. It is important to ensure that the infrastructure exists to allow plans' objectives to be met. Would placing a statutory duty on key agencies to engage in the whole development plan process be of benefit?
Absolutely. There is absolutely no doubt that those bodies must be involved in the process and that they must be made to deliver so that the private sector can deliver its side of the bargain. Everyone round the table is probably aware that there are significant problems in the system at the moment. Proposals in development plans cannot be delivered because of the lack of infrastructure, over which bodies other than the local authorities and developers have control. We would heartily welcome a statutory duty on those bodies to co-operate and deliver in the process.
I support what has been said. There is little point in having development proposals in development plans if infrastructure providers say at a later date, "We can't deliver the investment." Providers must be involved when the plan is being put together.
I agree. The specific naming of important agencies and saying what level of performance is expected of them in the process are to be welcomed.
Mr Harvie, do you have a question on sustainable development?
We have probably covered the issues that I wanted to raise.
I want to turn briefly to the hierarchy of developments that the bill proposes. I was interested in Mr Graham's response to a question that the convener asked at the start of the meeting. He said that some developers have "played" the current system. I wonder whether developers will be tempted to play the proposed system and adapt the size of their development to benefit from what they think are the most favourable conditions under the hierarchy of developments.
The harsh reality is that people will try to play any system, but that is not a sustainable approach for developers with long-term strategies. If people regularly try to play a system, they will be seen to be doing so and the local authorities will pick up on that or the legislation will be amended accordingly to stop them doing so. A process of trial and error is involved. Limits must be set throughout the country when things such as affordable housing thresholds are being considered—we cannot get away from that—and people will always try to manipulate systems to fall above or below limits, depending on their aims. I do not see an easy way round that. We must proceed, monitor and, if necessary, review the legislation accordingly.
When the bill was published, we were concerned that it did not define major housing developments. We welcomed the clarification that the chief planner provided when he appeared before the committee—it was suggested that a major development would perhaps be defined as consisting of 300 residential units. We have examined the suggestion and believe that the definition is probably right.
I agree with that. The right way to view the hierarchy is to see a major development as a development of major importance to an urban area. It is a development that would be a major focus of attention for the council's resources. It would probably be a major commitment for the developer's purse.
If broad thresholds were established for what would or would not be a major development and, within that, the council, for example, could interpret that to mean that although a development might be regarded as a major development for a number of given reasons, it still fell below the threshold, that would allow a measure of flexibility.
I think that the flexibility that is on offer at the moment is in the hands of ministers. Allan Lundmark was saying that some developers might choose to squeeze in a few extra units so that a project would be treated as a major development. Is that not a case for saying that we should not have a single, absolutist, quantitative threshold? Given the importance, impact and complexity of some developments, which Mr Slipper was talking about, and the amount of time that a local authority will have to spend, should we not be considering a more subjective threshold, rather than simply using a number?
The only problem with that is that it makes for even less consistency across Scotland in local authorities' ability to form effective opinions about whether or not a development is a major development.
But is consistency across Scotland the most important factor? Should not each development be treated on its own terms?
It is perhaps not the most important factor, but it is important to have a degree of consistency. The hierarchy is sensible. Over time, it will probably become absolutely clear what will fall into each category.
Is a single, numerical threshold the only way to achieve some consistency?
No, but it does allow for some clarity.
This discussion will inevitably link back to that on the levying of fees on developments, which then links back to the resources that are committed to the processing of developments. Major developments might only ever occur in the major urban areas, where a higher quantitative threshold will be reached. That is not to say that another development in a smaller town will not be of such significance that the director of planning will suggest that a pre-application processing agreement and a special form of pre-application consultation are relevant. There has to be discretion. In all the studies of national relevance that we have done, we have had to respect the fact that there are not only major urban issues but equally important rural town issues. They are never of the same size, but they could be of great relative importance locally.
There is perhaps a halfway house. I give the example of the way in which the Environmental Impact Assessment (Scotland) Regulations 1999 work. Schedule 1 to the regulations lists projects that, without question, require environmental impact assessment. Schedule 2 lists developments for which an assessment is discretionary. It combines certain numerical thresholds, such as sites of 5 acres, for example—I cannot remember the exact figures—certain uses and a catch-all that covers any developments that are likely to introduce significant change into an area. Perhaps that indicates a way of giving the development industry some certainty about whether a project is likely to be considered as a major development.
The main driver for this aspect of the bill is how resources are deployed in planning departments. It is about ensuring that they are deployed most effectively and not squandered on matters that are fairly straightforward to deal with.
You have already touched on supplementary guidance. Proposed new section 22 of the Town and Country Planning (Scotland) Act 1997 provides for strategic development planning authorities to issue supplementary guidance on the implementation of strategic development plans and for local authorities to issue supplementary guidance on local development plans. Homes for Scotland has expressed anxiety that that section could provide an inappropriate mechanism for extending or amending local development plans. Why would it be inappropriate? Surely elected local authorities should be free to react to circumstances that might arise in their areas, subject to appropriate scrutiny and accountability. Do you not accept that?
It might be more appropriate to deal with new policy areas and new policy issues as alterations to the development plan rather than through supplementary planning guidance. It is important—not only to us, but to the community, which will experience the impact—that such policy initiatives are subjected to the same level of scrutiny and testing as are alterations to the development plan. It would not be appropriate to use a less rigorous mechanism.
This seems to be a case of sledgehammers and nuts. It might well be perfectly appropriate to provide supplementary planning guidance in certain situations. For example, one bee in my bonnet is the fact that some big developers—mentioning no names—are building houses in every town in the UK using identical off-the-shelf designs. Some people might say that the situation has depressing parallels with the identical blocks of flats that can be seen all over eastern Europe and the former Soviet empire. Is there not a strong case for giving local planning authorities the power to issue supplementary guidance to ensure that local materials and styles are reflected in developments in their local areas?
The planning authority in your area is doing precisely that by, for example, consulting on supplementary planning guidance for home zone design. That is entirely appropriate, because the development plan already contains statements on design, and this is merely further guidance about what is required of developers.
So that is fine.
Absolutely. I have no difficulty with that. After all, the approach to design has already been driven into the development plan and tested. The proposed process is out for consultation and will be perfectly legitimate, as long as the planning authority takes into account all the suggestions that are made and publishes its reasons for either accepting or rejecting them.
I have a notion that you are protesting too much. In the major example that you cited, a need for affordable housing might be identified, but developers might find a way of sidestepping the planning authority's intention in that respect. In such a situation, is it not perfectly legitimate for the local planning authority to supplement guidance and the local plan to deliver an objective that everyone agrees on?
All I can do is point you to known examples. The City of Edinburgh Council delivered its supplementary planning guidance on affordable housing by driving in an alteration to the north-east Edinburgh local plan, which was then tested at a public inquiry. As a result, its policy position is far more robust than that of authorities that have simply relied on stand-alone supplementary planning guidance that has not been tested, and the housebuilding industry is far more comfortable with it. After all, relying on supplementary planning guidance alone raises questions about the robustness of the policy when applied to planning applications. Because such guidance has not been tested and is not robust, developers are more likely to seek to appeal decisions, as they cannot be certain of the extent to which the guidance was driven by evidence-based policy.
A broader view is that different kinds of supplementary planning guidance exist. The first kind is area SPG, which concerns geographic areas that need to be moved on beyond local plans. I fully endorse the continued use of area SPG, because it is more agile, more thorough and better partnered. A typology in the Executive document "Designing Places—A Policy Statement for Scotland" suggests that that can be achieved through frameworks, briefs, master plans and design guides. We are keen to engage with the Executive's Development Department to develop that discussion. We have had successes in major urban areas in taking forward supplementary policy to implement development.
I am conscious that our witnesses have been with us for more than an hour and that we have several subjects still to cover, so I would be grateful if committee members kept their questions short and if panel members kept their answers as succinct as possible, without missing out anything that they want to impart to us.
I notice that Homes for Scotland is very much against supplementary planning guidance, but that architects say it is very helpful. The submission from one of our witnesses later this morning—the Scottish Renewables Forum—says:
The objective is to make the whole system efficient and clearer. As development plans are to be updated every five years, the amount of supplementary guidance that is required should be limited.
Proposed new section 22(2) of the 1997 act says that a strategic development planning authority may make regulations on procedures, consultation and various other matters, so it is not only about design and local materials. It is worrying that local authorities could each make different regulations on procedures, consultation and other matters that should be nationally guided or should be in development plans, as has been said. Is that proposal for the planning system confusing?
It is important to have consistency all the way down from the national planning framework, which will contain statements that give broad guidance on how matters should be dealt with. I adhere to the architects' view that supplementary planning guidance is good, because at the level at which architects work as agents it provides clear and concise guidance and a robust standard within which architects can make and defend a proposal. It is also important that it gives an element of flexibility from area to area. We have seen that emerging in the various design guides for different regions. That is useful, so giving it a statutory basis would be helpful.
So you do not agree with the Scottish Renewables Forum that supplementary planning guidance could act against national planning policy guidelines.
I think not. We have national planning policy guidelines and planning advice notes, all of which should ensure consistency.
The easy way to deal with that situation is for the legislation to say that any SPG must adhere to national planning guidance. Many authorities have adopted that principle.
That is a reasonable suggestion. Thank you.
I have no idea.
That answer was helpful. We will try to get that information from the minister.
Mrs Scanlon, will you ask your question rather than allude to what is in the written submissions?
What impact will pre-application consultations have on the way in which applications are prepared? Will such consultations reduce the number of objections in the process?
Yes. They will endorse a much more efficient process and much more productive forms of consent will emerge from them.
Developers sometimes feel that their hands are tied by the current regulations on issues such as neighbour notification, which effectively oblige us to send the minimum amount of information to consultees. I would rather send much more. The current proposal for pre-application consultations is having what I hope is a positive effect on the development industry. A number of developers are already taking up the cudgel of pre-application consultations because they know that they are coming in; they are trying to adapt to the system now. If we can engage in such consultations with the community in advance of applications being made, I hope that they will have a smoother ride when they hit the desks of the planning authorities.
So rather than delaying the process, the pre-application consultation will be helpful to the long-term process.
Yes. Members of the public frequently criticise us for the fact that they have only 14 or 21 days to respond. That is what is laid out in the legislation, but most local authorities will accept objections until an application is determined. However, that is the public's perception.
Our industry welcomes the proposals. We are working actively with our member companies on how to progress pre-application discussion and community consultation. We have commissioned Planning Aid for Scotland to research the processes that might be put in place to assist that. The housebuilding industry will embrace the idea.
Thank you.
I note that we have to be crisp and concise, so I will ask four short questions.
There is always precedence and these processes have been in use for some time. It would be good to have an opportunity for such a hearing. A contentious application would always be brought forward to such a hearing, at which particular arguments could be brought out. That would be welcome to ensure everybody's full understanding, particularly in the case of a large application into which many resources and inputs had gone.
What kind of development would be covered by the provision? I understood that a certain type of development—not necessarily those that are contentious—would require a predetermination hearing.
I think that there is contention in every sort of development.
I understand that. Perhaps someone else can assist?
We are back to the hierarchy of developments. Major developments would probably qualify. I made the comment earlier that such developments may prevail only in urban areas, so directors of planning in local areas will have to have discretion to decide on which applications they suggest to the developer should have a hearing.
I endorse what Mr Slipper has said.
In many local authorities in England, where we have major schemes, the hearing process is already part of the planning application process. We have no problems with it. Although developers are opening themselves up to objectors to their schemes, they also get a chance to put across their case. The financial implications to us are pretty minimal. We would welcome the opportunity to put our case to planning committees in person.
The hearing would provide the opportunity for common ground to be agreed and areas of difference to be highlighted. It would also explain to communities and the wider public how developers are within their rights as contained in a development plan. Therefore, the more contentious items would be thrashed out and the process would become more efficient.
Could a plan also be modified by compromise?
Yes. The process would be similar to the principle of operation in the court system, where a meeting is held prior to a hearing to thrash out and clarify the basic points that are to be discussed further.
There would be a joint minute.
Yes.
I understand that the additional grounds for refusing to determine planning applications are all new, but that they come under a two-year timescale. It is proposed that if, within two years, a developer submits an application that is repetitious, that has already been rejected or that is much the same as an application from another developer, the planning authority can refuse it. Can you comment on that proposal?
As developers, we have no problem with the principle behind that. It is the rarest of circumstances in which a major developer makes repeated applications of a similar vein on the same site. So long as there is an opportunity to go back with an amended scheme at least once, we would perfectly happy with the proposal.
That depends on what you mean by the word "amended".
Yes.
Schemes should have an opportunity to evolve. Disappointment may follow the refusal of an initial application, but it is always worth while to consider the reasons for refusal—and whatever comment or criticism has been made—and to make positive use of them when amending the scheme before reapplying. I hope that the opportunity to do that will remain.
It is fair that repetitious or vexatious behaviour by developers should be discouraged; for balance, the same rules should apply to third parties or consultee parties. If a repetitious or perhaps belligerent pursuit of a scheme by a developer is to be discouraged, there should also be just one place and time for comments on the scheme before people have to accept the power of the decision-making authority. The same rules against vexatious behaviour should apply to all.
Can you foresee litigation?
Possibly.
As an ex-lawyer, I smell litigation.
We have no reason to resist these particular proposals in the bill.
The proposed scheme of delegation will determine which applications are dealt with by officials and which are dealt with by councillors. Will that make the planning system more efficient or less efficient? What are your views on the proposed right of review?
Overall, the planning system should work more effectively. However, bearing in mind all the energy, resources and aspirations that go into an application, a scheme of delegation could lead to concerns over whether the application was being given due consideration.
We have no problem with the proposal for a scheme of delegation; many local authorities operate such schemes quite successfully and we have no particular objection in principle to the idea being extended.
On smaller developments in the right categories, it is good to give planning officers more power. Within planning departments, there is the malaise of a lack of self-respect because their decision-making powers are not strong enough and not respected enough. All fully qualified planners, from the highest director downwards, should feel proud of their decisions. However, individual applicants should also be able to appeal, as it were, to elected members.
It is unlikely that the proposals will impact on my member companies, except in so far as they free resources that can then be used to deal with major applications. To that extent, we were content with the proposals and therefore made no comment in our written submission.
I hear what you are all saying and it will be interesting to reflect on it. A cornerstone of local democracy is that elected members should know their area. I can see a pertinent role for them that people from a neighbouring authority might not be able to play. The committee might want to reflect on that.
Scottish ministers will decide on the method of appeal. Do you agree that they should do that? In its evidence, the Faculty of Advocates was concerned about restrictions on public inquiries—and I heard what you said about the public having to have faith in the planning process.
I defer to the evidence from the Faculty of Advocates on procedures for a fair hearing. The faculty's evidence provided the right level of detail and I do not depart from it. More scrutiny in relation to the form of inquiry would be useful, so the faculty's evidence is worthy of further discussion.
I have no concerns about a reduction in the time limit for appeals in principle, but the Scottish Executive inquiry reporters unit must be properly resourced to deal with appeals. The reduction in the time limit in England and Wales led to a logjam and, in effect, to the system's collapse. When we learn of a planning decision we know fairly soon whether we will appeal.
The purpose of the appeal should be to test the robustness of the planning authority's decision. Therefore it seems appropriate that the appeals process should create an alternative planning authority that can test the original decision. I read the Faculty of Advocate's submission and I would not dream of making further comments on the matter.
Would people submit an appeal just to protect their position?
There is a risk that that might happen if the time limit were reduced to three months. The evidence from south of the border supports that view, but I do not have strong views on the matter.
Do you have concerns about the reduction in the standard duration of planning permission from five years to three years? There was quite a difference between the Homes for Scotland submission and the submission from the Royal Incorporation of Architects in Scotland. Allan Lundmark seems quite exercised by the matter.
There is evidence that it can take our member companies more than a year—sometimes much longer—to remove suspensive conditions, because the process can depend entirely on the actions of other public agencies. For example, the removal of a suspensive condition that relates to water and drainage is entirely dependent on a Scottish Water investment programme.
I am not sure whether other members of the committee are fully briefed on suspensive conditions. Perhaps we can follow that up at a later stage. Is there room for compromise?
I have a point to add. The other side of the coin is that the present five-year duration of a consent has the effect of locking up capacity—whether that is retail capacity, drainage capacity or the capacity of the road network—until the consent expires. We have experienced situations in which a consent was granted but, for whatever reason, the developer could not deliver; he might not have been able to assemble the site, for example. As the alternative developer, we have had to sit around for five years until the consent expired because the capacity does not become available until that point. The reduction in the duration of planning consents to three years might be welcomed in cases in which there were competing schemes that could be delivered in practice.
I think that I was identified as saying that a reduction in the duration of planning consents from five years to three years would be a good thing, but that may depend on the scale of the scheme. Our submission flagged up the fact that it may take time for an existing use on a site to work its way out.
Do you have any concerns about the proposed change from the granting of outline planning permission to the granting of planning permission in principle?
The response to that is, "What is in the change of a name?" There is a danger that outline planning permission might signify to communities simply that a red line was being drawn around a site, that no further material would be submitted and that a decision by the local authority was expected. As a planning consultant, my evidence is that that is hardly ever the case these days. It is much more likely that a developer will be asked to supplement their application with specific details. Increasingly, developers provide an outline of the principle of the development and, on top of that, selective details. We are starting to call such applications hybrid planning applications.
Are you content with the provisions in section 20 about planning permission in principle?
They are a start, but perhaps there has to be something more in statute. There is often a lot of confusion about what is a reserved matter and we might have to lose ourselves in the general development procedure order to find that out. It might be more helpful to write in statute how planning applications can be made.
But you feel that the bill is a move in the right direction.
Yes, it is a start.
I support what Mr Slipper said. It is important to bear in mind, particularly in the case of large housing projects, that local authorities seek to capture an uplift in value to fund supporting infrastructure through section 75 agreements.
Thank you. You have just pre-empted my next question.
I ask Mary Scanlon for her patience for a minute—Mr Robson has a question on this matter.
My question is about housing density. In the current circumstances, density is stated at the stage of outline planning permission, but it can then be increased at the detailed stage. That causes considerable concern in communities, because what they thought was to be a 30, 40 or 50-home development can turn out to be a 70, 80 or 90-home development. Would you welcome the inclusion of parameters in planning permission in principle to restrict that problem?
My view is that it is reasonable and increasingly seen as the norm to outline the maximum expected number of dwellings at the outline—or, in the new language, principle—stage. Most of my clients are used to that being a director-of-planning request at the pre-application stage. From there, transport, environmental and other assessments can be made.
Euan Robson has touched on a critical element. In the past, the tendency has been to deal with such issues as reserved matters, but that causes problems with communities because they are not involved in the process. I spoke earlier about the thrust of the way in which we are expected to test a proposal before we bring it into the planning system. I simply endorse what Mr Slipper said—what is proposed is much more robust.
I want to move to the amendments to section 75 of the Town and Country Planning (Scotland) Act 1997 and in particular to the planning gain supplement, which has been raised by directors of planning as a matter of some concern. I know that it is difficult for you to comment on the planning gain supplement because the consultation at Westminster will finish in the next couple of days. However, I am also aware that what has been proposed at Westminster will have a significant effect on the amendments to section 75.
I think you will find that everybody here is heavily involved in the consultation process on the planning gain supplement, which has now finished. Let us leave to one side the principle of the matter, although Miller Developments and most of the commentators that I have heard objected to the principle of the planning gain supplement for a variety of reasons.
On section 75 requirements, I recommend that the bill should state what the reasonableness test is. There is plenty of planning law and examples of cases over the past 20 years. The contributions, which are not planning gains but fair contributions, in which a developer has to contribute to something that otherwise would cause refusal, should be fairly and reasonably related in scale and kind to the development. If that was set in statute, the PGS would be wrong—it would be fundamentally flawed. My evidence is that for Scotland to go down that line would be an error. The base rule is that the contributions should relate inherently to the development that is before the planning authority.
Are you content that the provisions in the bill that extend and formalise the current section 75 agreement are acceptable? Leaving aside the planning gain supplement for a moment, does the bill address your concerns?
New sections 75A, 75B, 75C and 75D of the 1997 act are helpful and sharpen the definition. However, I still suggest that section 75 should state that contributions should be "fairly and reasonably related in scale and kind to the development before the authority."
Do you see problems in our passing the bill with the planning gain supplement from Westminster hovering in the background?
Possibly, although that might be more an issue to resolve in the Parliament. There must be an early decision and, given that the bill is perhaps more important in Scotland, there has to be clarity for everybody giving evidence from the development side.
The timing is obviously causing difficulties.
Yes it is.
If it helps, rather than causing a delay this morning, I am happy to make available to you our evidence to HM Treasury on the proposals as currently drafted. We have given a commitment to HM Treasury and HM Revenue and Customs to have further discussions with HM Revenue and Customs about the calculation of the tax and recycling the revenues.
The committee would welcome that additional written evidence.
I understand that a similar measure—I am not sure whether it was called the planning gain supplement—was introduced in the 1970s. I have heard that it became unworkable and was abolished. Would any of you like to elaborate on that?
I probably can, as I have researched that over the past couple of weeks. There have been three or four attempts over the past century to introduce some form of planning gain supplement, all of which have failed. The amount of tax collected from them has been minimal. Those attempts were made at a time when there were no section 75 obligations, affordable housing requirements or extensive planning conditions in other parts of the system. Therefore, the taxable part of the development process has already been increased by other mechanisms.
Why then has the Scottish Executive chosen to introduce a system of good neighbour agreements?
Some people query the need for those agreements to be put in statute, following quickly behind section 75 of the act, which deals with all regulation of the use of land and—arguably—the onward management of property. Other people argue that good neighbour agreements are perfectly competent devices to enshrine in section 75 if they are relevant to the onward management of the development. However, that is probably something for the lawyers to spend time on. On behalf of development interests, I would say that the argument comes back to a fair test of whether a good neighbour agreement is a reasonable property management undertaking for a development. Many of the issues that the agreements aim to address are already competently controlled under planning conditions and agreements. Perhaps there should be further debate on whether there is a need for this additional level of statute.
In general, are you in favour of the proposal, or are you against it?
I cannot say whether I speak for all in the development industry, but I think that for us in handling planning applications and in our implementation, the idea behind good neighbour agreements is a good one, which could be applied to the efficient onward management of public space. Given that, at the heart of many planning discussions, lies the notion of public realm, the effective management of that realm is vital. However, there are many ways in which the planning system could deliver certainty to communities. Rather than putting the good neighbour agreement in statute and making it such a strong fix, it could be done in a way that allows more flexibility and the ability to reassess how things are done.
If the system was working effectively and communities had confidence in it, would the Executive have gone down this road?
The honest answer is probably not. I understand from friends and colleagues who act as local authority planners that the enforcement side of any planning department can be the most poorly resourced of all. Much of the dissatisfaction that members of the public have with the present system concerns the minimal amount of enforcement that authorities undertake where there are breaches of planning consent. The issue is to do with resources. The need for good neighbour agreements could be avoided if the public had confidence that the enforcement process would be followed up.
There is clear evidence of community councils and other appropriate bodies having ample confidence to engage developers. One example of that is a development not far from the Parliament. The first requirement of the community council in its preliminary discussions with the developer was for the areas discussed to end up in a good neighbour agreement. So far, the developer has agreed to pursue that line. There is no shyness among community councils and other key consultees to purse the notion at the moment. If communities wish to ask for such an agreement, the existing planning system allows it to occur.
However, although we can point to good examples—of which I am sure there are a number around the country—can we not also point to a number of spectacularly bad examples in which there is no possibility of a good neighbour agreement being reached between the developer and the community? Perhaps putting such agreements on a statutory basis will ensure that all communities are offered some sort of safeguard or protection.
It is possible.
Mr Graham, you mentioned enforcement, to which the bill gives considerable consideration. Will the proposals, particularly the proposal to have enforcement charters, assist in building confidence for communities and developers that the system for dealing with enforcement and for ensuring that developers carry out their developments in compliance with their planning obligations is a transparent one?
The simple answer is yes. Ironically, planning enforcement is quite an important issue for developers. One of the arguments that we frequently hear from the public concerns the ability or willingness of local authorities to enforce the planning consents, conditions or obligations that they may have imposed on developers. What we often say is that that is a matter that their local authority can deal with under its powers and often members of the public do not believe that the local authority will be particularly great at enforcing the planning consent after it has been granted. There is an element of truth in that. We would welcome anything that gives the enforcement process more teeth. The enforcement charter does that, and we welcome it, but I would like to ensure that local authorities have the resources to be able to implement it.
If the resources are available for enforcement and if developers know that there will be proper enforcement, will developers be more honest about what they can and cannot deliver? My experience with the bad developers is that they often sign up to a whole raft of planning obligations, knowing that those will never be checked out, and then do what they want to do anyway. Will there be an onus not only on local authorities to enforce planning obligations better but on developers not to commit to obligations with which they have no intention of complying?
I make it clear that I am not speaking for Miller. There are examples of developers having taken that view. If we consider the statistics for the number of planning enforcements taken by the local authorities and the number that result in successful prosecution, we see that the percentage rate is fairly small. There is a strong likelihood at the moment that a nasty developer—I would not put Miller in that category—will get away with any breaches of planning consents. If we are operating a system in which developers are much more fearful that the proper enforcement action will take place, we will find a lot more of them playing ball.
Christine Grahame has a specific question on enforcement.
Yes. I have concerns about enforcement notices—I can see litigation looming with those. From a developer's point of view, is the procedure severe?
Yes, if enforcement is not preceded by a programme of consultation, discussion and clarification, to find out what exactly is happening on the site, what is going adrift and whether there is some reason for it. If all those clarifications were not clearly in place at the front end, litigation could arise from a wrongful stop notice or enforcement procedure.
But, as I understand the section, activity can be stopped immediately. It does not leave much room for chat or negotiation.
There has to be room for chat or negotiation, even if it is in the course of an afternoon. That is important.
Are there any other comments about stop notices?
In practice, that is unlikely to happen. The planning authority would have to be satisfied that it was on very safe ground in order to issue a stop notice. In practice, what will happen is that the planning authority will draw a matter to the attention of the developer or its agents and seek to have it remedied. Only under exceptional circumstances, in which there was a clear, unambiguous breach and the planning authority was certain of its grounds, would it issue a stop notice. There is far more draconian power lurking in the planning gain supplements. HM Revenue and Customs can issue a stop notice for non-payment of tax, which will be far more severe than any notice a planning authority will ever serve on the development industry. That can happen instantaneously, without notice.
I do not want to make light of this, but the penalty is
If a developer is in breach of a planning condition, the planning authority should take action against it. We need to be confident in the system. One way of building that confidence is when a community knows that a particular development has been consented and that it will be built according to that consent. We should always bear in mind that a developer is under an obligation to comply with the terms of the planning condition that it accepts. If, in the implementation of that planning consent, a developer discovers that there is a condition with which it cannot comply, it is open to the developer at any time to go back to the planning authority.
I agree, but is this measure tougher than what exists?
I am not a specialist on the enforcement side, nor have I studied it, but I understand that the proposals will toughen up and sharpen up the regime for the developers and various property interests that I represent. Rather than being relevant to the activities of developers such as those that are represented by the umbrella organisations giving evidence today, it is relevant to parties in breach, which are not the kind of outfits that would wish to discuss the modernisation of the system and get behind such modernisation. If there are parties in breach, they deserve much more severe penalties.
Rotten apples contaminate the barrel. I take your point.
Absolutely.
I notice, in fact, that it is only on summary conviction that there is a limit of £20,000. If the conviction is on indictment, the amount is open, so there could be substantial penalties if there was a serious criminal breach.
The bill proposes to give the Executive, or an agency that it instructs, the power to audit local authority planning departments. Is that a welcome move on the part of the Executive?
Personally, I would endorse having provision for audit in statute. It should be an on-going exercise. There are different ways of carrying out audits. It has perhaps given a bit of a shake to the system in the past six years, but audits have been on-going in development control and development quality departments, and they should be. That should happen in the best possible manner between those carrying out the audit and those being audited. If audit is an on-going process, it will assist the system. If the statute states that there should be audits, there should be audits. They should not be a nebulous threat that is never used.
The audit proposals are welcome, but audit must not be a cosy, closed process between the Executive and the planning authority. The audits should be transparent and the findings should be published and open to scrutiny by the community; it is only in that way that changes can be driven into the system where changes are required. Therefore, we need a system that goes beyond the current proposal that the matter will be dealt with between the Executive and planning authorities. We should publish the information and allow people to make their own judgments about performance.
Who would you prefer to conduct the audit? If Audit Scotland did it, would that meet your criteria for independence?
If we have such an organisation set up, it is difficult to see why it could not perform that role. Modern audits of any sort of business tend not to be so draconian, and there are always things that we learn from them. Audit is now seen in a more positive light and if it is open, that would be useful.
There are public audit processes that are used in education, social services and health. I see no reason why a similar model should not be used in the planning system.
We discussed increased fees to some extent and we touched on the question of what sort of redress there should be if a planning authority is not meeting its obligations. Is there anything that you would like to add to what was said earlier?
With regard to the principle of increased fees, you will probably find little reluctance from the development industry to taking that on board. Arguably, the current planning application fee is the smallest part of the costs that are involved in progressing a planning application. The consultants' fees will add up to many times what the planning application fee will be. Would we pay more for a faster, more efficient system? Yes, there is no problem with that, but can you deliver that faster, more efficient system? I have concerns about that, not only in relation to local authorities, which face the sheer task of getting staff with sufficient skills to assess major applications, but in relation to getting consultation responses from bodies outwith local authorities, such as the Scottish Environment Protection Agency and Scottish Water. I have concerns about how we can engage those bodies and ensure that they play their role within a specific timescale, as the advice of any of those consultees could be vital to the determination of the application.
There will have to be some scrutiny of the levying of fees. As we mentioned, that might depend on the density of the development and the call on resources. I echo Colin Graham's advice on that. There seems to be a general view among developers that if the system is going to deliver more, they are prepared to pay more. That is a general view that we have heard from a number of clients. They will pay more as long as they get more, although there is no presumption that they will get consent. However, if the system is development plan led and if schemes are brought through the development plan from the start, it might be reasonable to believe that what one is backing as a planning application will be part of the policy.
You made several points about the resources that are available to planning departments. Will you comment on local authorities' capacity not only to deliver the proposals in the bill and make planning a greater priority but to change the culture so that it is less adversarial?
We touched on that earlier, but more resources are needed. We need more senior and principal directors of planning who can give direction, execute their own decisions and act in an executive manner. Equally, members need to meet more frequently and to engage with the complex issues that are presented in planning. A change in culture is needed whereby all councils make planning a political priority and recognise that it is vital to the delivery of a successful Scotland.
Are you confident that that will happen when the bill is passed, given the additional upfront consultation and so on?
I am not entirely confident yet.
I note that Mr Slipper raised his eyebrows.
I stress that the lack of resources in planning departments is not the only issue. Planning is often dependent on other departments within the local authority. The lack of resources in local authorities' transport and environmental departments impacts on the way in which applications are processed. One of the biggest bugbears is the section 75 process. Often, it does not even begin until the application has been determined and it can take six, nine or 12 months for the legal agreement to be signed. In the case of a major site, the on-going costs for the developer can be enormous.
Some of the local authorities that I have spoken to say that they will have to allocate planners to deal with neighbourhood notifications, which will put even more pressure on departments. Do you want to comment on that?
I am not sure that it is appropriate for me to comment on the way in which planning authorities allocate their resources internally. At the heart of the matter is the fact that planning authorities do not possess the skills that they need to deal with the complex planning applications of the present day. We need to give planning authorities those skills—that is what the bill is about. There are questions about resources but, as I said at the beginning, an underskilled planning service is an underconfident planning service. Planning authorities are not equipped to negotiate and they use techniques such as delay and frustration as substitutes. We must break that down. If design is at the heart of planning, planning authorities must have skilled designers who give advice. If planning is about the creation of value, planning authorities must have the relevant skills and understand how value is created and used by the development industry. If we give planning authorities those skills and resources, the debate, dialogue and negotiations will be far more constructive.
The Convention of Scottish Local Authorities will be giving evidence to the committee. Obviously, the matter is part of its remit, but how do you think that planning departments can be given those skills?
There are three issues. First, we should consider recruitment to planning departments. Planners are not the only resource that planning departments need. Surveyors, accountants and designers also play an important part. A greater use of private consultants is another issue. A lot of those skills exist in the private sector. The sharing of expertise is the third issue. In a small authority in which design is only an occasional issue, the design expertise should be shared with a neighbouring authority. If it is necessary, expertise should be brought in. People should be imaginative in the way in which they equip the planning authority to take part in the negotiation process.
The question is not an easy one to answer. You are getting into the fundamentals of why planning is an unattractive career at the moment. There is no easy fix. A structural sea change in the way in which planners are viewed must come about before we will be able to get the required numbers—and, importantly, the quality—of people coming through.
I would vouch for the fact that, in this city—and in other major cities in which there is more ambition to innovate on the issue of planning—there has been extremely successful partnership working. That has been led by the planning authority under strict rules. It has assessed what material is coming forward, but there are some landowner developers who want to engage in the process and who will throw a major team and many hundreds of thousands of pounds at an area study on master planning transport engineering in order to offer and engage that resource. Sometimes, that is left in-house with the planning department and the developer serves as a consultee. Such innovations are really good.
I have some questions about public involvement. It has been suggested that the witnesses might have views on the third-party right of appeal. If so, they are welcome to share them.
There has already been an ample change in culture in relation to the need to consult early. At the moment, the public have opportunities to engage with local authorities in relation to local plans and to say that they do or do not want change in their areas. Those are the seminal decisions that local authorities have to share with local communities.
My question was about how we can achieve a sense of trust in the system. We are talking about planning, so we will never achieve a situation in which every decision keeps everybody happy, but if we want people to accept decisions that are made against their wishes, they need to have a sense of trust and the feeling that they were given a fair crack of the whip. How do we achieve that sense of justice and fairness?
I agree that people need to have that feeling. We can achieve that by making it clear in statute that consultation means full engagement. However, supplementary guidance will set out the best practice for consultation.
What is that best practice?
There are many trendy terms and words for it, such as "inquiry by design", "workshop", "charrette", "discussion session", "forum" and "focus group". However, in my experience, the process involves the developer's expert team and local authority experts spending a lot of time in a room with local interests, by which I mean representative individuals, not every individual with a local interest. The process should not involve large public meetings that do not steer the debate; we need a more intelligent approach if we are to get effective engagement and consultation. Records should be taken of what each side has said and notes should be made of changes that the developer has made in working on the proposals. That will allow everybody to move on to the next stage.
One way of ensuring that people are up for that kind of involvement and that they regard opportunities to be consulted as meaningful is to ensure that they do not feel powerless in the system. Many people feel powerless in the present system. If the Scottish Executive told you as a citizen that it was going to take away your right to vote but consult you more, would you feel more or less powerful?
There is a risk that people feel powerless, so it is vital that the system empowers people and feels accessible. In the major developments with which we have been involved, we have spent countless hours engaging with numerous groups and individuals—people increasingly engage and know that they have a right to do so. If the development procedure order, circular guidance or planning advice notes make it clear how engagement should take place, groups will be able to challenge a developer or a local plan team and claim that the procedure was not followed properly. That threat to anybody who tries to squeeze through the system without full engagement should help to empower individuals and make them feel that they can engage.
One practical measure that would help to foster a sense of involvement in the process would be the greater use of hearings in planning committees. One frustration that we have as a developer—I can only imagine how members of the public feel—is that after two or three years of planning negotiations and various reports and meetings, when the project gets to the planning committee for the ultimate decision, it takes two seconds, two minutes or five minutes. The procedure sometimes involves nothing more than someone reading out the title of the planning application. A citizen sitting there who had not been as heavily involved in the process as the developer or their agents had been would feel slightly aggrieved that such an important issue was dealt with in a summary fashion. I would far prefer it if I had the chance to give my view, the objectors had the chance to give their view and the debate was heard. Such open debate would engender much more honesty in the system.
You almost suggest that neither side should have an appeal.
I would not go that far.
I did not think that you would.
The pressure must be on updating the plan.
Absolutely.
The term "out-of-date development plan" should almost be an oxymoron in a forum such as this.
If we achieved up-to-date plans, no appeals would be made—that would be the case even if the right that I propose were granted. People would not need to exercise the right, but having it would make them feel more powerful in the system.
I do not accept that. The thrust of what we must focus on is what is referred to as front-end consultation and front-end involvement. Richard Slipper talked the committee through the process in which many developers are engaged.
I understand what you are saying about its being in your interest to engage, but you would not suggest that all developers are successfully engaging at the moment.
None of us would say that. I am saying that the housebuilding industry recognises the need to engage with the communities that we are building. New processes are being brought on board and new requirements are being placed on us.
I invite Christine Grahame to ask a brief final question.
I will be brief. I absolutely concur with everything that has been said and return to what Mr Levack said about people having to understand plans, which must be in a digestible form, plans having to be accessible at the pre-consultation stage and so on. However, questions relating to certain parts of the bill remain unanswered. Let us assume that the proposals are implemented and third parties and communities are cut out of the process. It is not clear who will be at pre-hearings. Will only the developer and the planning authority be at a pre-hearing? There could be exclusion from the process.
We have not specified in this morning's discussion whether we are talking about residential developments or other developments. On residential developments, it has been said that the houses that are built will be sold mainly to the local community, although I appreciate that people can commute—
Shall we consider a tougher example, then? I accept what you say. The number of houses and their shape may be open to tweaking and mediation with a community, but shall we consider a tougher development example, such as a quarry, a wind farm or a much more emotive example?
I would not want to comment on such examples because I do not represent parties that are involved in such things.
I see. Will you proceed with what you were saying, then? Let us say that a housing development is proposed.
If houses are to be put on sale at the end of the process, they must be attractive to the local community, and if affordable housing—possibly to rent—has been proposed, the local authority, local housing associations and community bodies will be actively involved in developing the proposals.
People in villages often have concerns about the proposed quantity of houses. Is that a contentious issue?
Ms Grahame, I remind you that I invited you to ask one succinct question. I have allowed you flexibility and you have asked several questions. You should therefore refrain from asking the witnesses further questions. I ask the witnesses to make final comments on the three substantive points that Ms Grahame has made.
I am willing to help with a response to the example. In short, I agree that Christine Grahame raises some valid points. It is normal for our clients to expect the opposing view to be presented and, if there are to be pre-hearings, a planning committee might allow the same hearing that an inquiry would, if it was short and—it is to be hoped—succinct. The normal run of things is that the inquiry hears the case for the developer and the case for the objectors, allows questions from members and then has a final debate. The bill may be silent on that, but I expect that matters will be pursued in that way. I hope that that is a helpful, positive response on engaging community views.
I endorse Richard Slipper's comments on dealing with particular applications, but a splendid opportunity exists for the public to be involved in local plan inquiries. That opportunity is taken and used widely to debate all manner of issues in the setting of a local plan or the setting and approval of a development plan, to which applications should conform.
I thank the witnesses for appearing before us. I appreciate their having sat here for two and a half hours. We are now running behind schedule so, if the witnesses would like to raise any additional points with the committee, we would be grateful to hear from them in writing.
Meeting suspended.
On resuming—
I welcome our second panel of witnesses, who represent the power generation industry. We are joined by Maf Smith, the chief executive of the Scottish Renewables Forum; Harry Malyon, the Scotland development manager for Npower Renewables; Debbie Harper, the development and policy manager for Scottish Power; and Alasdair Macleod, the Scotland development manager for Airtricity.
Yes, we were able to engage effectively. The white paper was useful because it set out some broad themes. Prior to its publication, a number of consultations were held on related issues. It is fair to say that we are as an industry actively involved in planning, so we felt that we had a lot of expertise to offer. We are pleased that the Executive reflected on some of those issues prior to introducing the bill. We have engaged in the process; we have set up working groups to consider the issues and we have been able to comment.
We had no problems. We had effective access to the correct documentation in the timescales that were allowed.
Will the bill enable the development of cleaner and more sustainable forms of energy in Scotland?
We support the overall thrust of the bill in what it is trying to do and the improvements that it is trying to make. We also agree with the frustrations that have been expressed about the current system. I expect that we will come to specific points that some of us have raised. It is worth highlighting that the key factor is resources, which the previous panel of witnesses obviously mentioned. We support the bill's aspirations on efficiency and inclusion—although we can provide examples of other things that we would do or things that we would take further—but unless the bill is backed up by resources, many of the aspirations will go unrealised.
We strongly support the aspiration to ensure that the planning system is modernised and becomes more responsive. The renewables industry is growing very quickly, so a planning system that the industry can work with is vital.
How has the renewables sector engaged with the development of the first national planning framework? How do you expect to feed into the next one, if and when that process gets up and running? What impact will the national planning framework's existence have on the sector?
We support the principle of a national planning framework and we look forward to being involved in the consultation on the next national planning framework, when it arrives. We see the national planning framework as being a crucial tool in addressing the strategic energy issues in Scotland and in the energy sector's future development. We look forward to the framework and we hope that major energy infrastructure and transmission systems are reflected in the national planning framework.
It is not reasonable for all projects to be at the top of the hierarchy, but the infrastructure is definitely crucial in the facilitation of projects. If projects are sensibly proposed, they should go through the normal planning framework.
Does the panel expect that the national planning framework will achieve the kind of co-ordination that many people are looking for in the development of renewables? How easily will the framework mesh with other factors, such as the Electricity Act 1989 and your organisations' internal processes?
It is stated that the bill aims to give the national planning framework enhanced status. That statement is welcome.
I will comment on issues around the Electricity Act 1989. This perhaps relates more to the issue of hierarchies in planning, but there is in any case a need for agreement on the place of section 75 definitions under the 1997 act within the hierarchy, and on smaller-scale proposals involving renewables. The white paper discussed renewables and gave examples of schemes, but it failed to define the impact in relation to the hierarchy. As an industry, we wish to be involved in that. There are already examples of local authorities adopting renewables strategies or carrying out assessments of their development plans and looking at the hierarchies in a different way. The big question for authorities is about the impact of the Electricity Act 1989. It would be good if local authorities and the industry could work with the Executive to sort the situation out, and it would be helpful if a shared definition could be agreed.
A large number of witnesses have expressed concern that the process for approving the NPF is perhaps not all that it could be. It involves a consultative draft, to be followed by a document to be laid before Parliament for 40 days. Ministers, rather than Parliament, will then sign it off. Would any of the witnesses like to comment on that process? Will it give you and the communities with which you engage opportunities to influence the framework's content?
I find it difficult to view some of our projects in the context of the national planning framework. Debbie Harper's projects would, in terms of transmission and infrastructure, be more suitable for inclusion in a national framework.
That might apply to specific developments, but I am sure that the NPF will have an impact on the sector beyond specific developments.
Yes, I am sure that it will. I think that Harry Malyon was referring to particular projects and how they might be defined in any future hierarchies that are to be determined under the bill. In the type of business that we are involved in and that we are representing, we would take every opportunity to be involved in consultation, either as members of the community or as businesses. We would use the various business forums that deal with the national planning framework and its drafting to get involved throughout the process.
Generally, local authorities have gained a lot of experience on Electricity Act proposals. It would be useful if guidance could be made available on how Electricity Act proposals might link into the national planning framework.
There has been some controversy about the geographical locations of renewable energy projects. At present, that is driven by people such as you making applications for consent. It could be said to be about fishing expeditions, testing the water and seeing what happens. Is there a case for turning the NPF on its head and getting either the Executive or the strategic planning authority to identify preferred areas for renewable energy projects and then to invite applications in those areas, rather than use the more random approach that currently puts the responsibility in your court? Could that be a useful way to approach this difficult issue?
The current situation is far from random.
It sometimes looks as though it is.
The implication is being made that there is a vacuum when there is, in fact, a strong policy structure that guides applications and decisions. Currently, local authorities may consider preferred areas—many do so and the industry has supported that. Our view is that that can be done appropriately at local authority level, where there is more understanding of key issues, which means that more useful detail can be applied.
Is there a risk that some bloody-minded local authority with a nimby attitude might say, "This is all too difficult. We don't want any of these things in our area"? Could responsibility be taken at strategic level, if you like, to designate the parts of Scotland that are most appropriate for wind farms?
That would go against the requirement for rigorous environmental assessment and local consultation for individual schemes. However effective and well-meaning strategic plans might be, the weighting that they give certain constraints and criteria always differs from the weighting that others would give them.
There is a proposal to update national planning policy guideline 6—on renewable energy developments—to Scottish planning policy 6. That would be the right way of advising local authorities on how to assess renewable schemes, so we urge the committee to consider whether the expected SPP 6 should set out a criteria-based policy that asks local authorities to set the framework within, for example, preferred areas.
Debbie Harper mentioned to Patrick Harvie that Scottish Power would like transmission upgrades and major generation infrastructure, such as the Beauly to Denny power line, to be included in the national planning framework. How would such an approach benefit not only developers but communities?
If the NPF were to set the context of future energy and other developments, it would make what is being pursued more transparent both for the industry and for communities. It would be set out in a different timescale and it would be clearer to everyone involved.
I want to turn to the hierarchy of developments. In its submission, Scottish Power favours an indication of where national, major and local developments might fit in the hierarchy. Maf Smith touched on section 75, but what other specific considerations need to be given to renewable developments to fit in the proposed hierarchy?
In what way?
In your paper you suggest that a distinction be made between national, major and local developments. What other considerations should the committee be aware of?
I say for the avoidance of doubt that I suggested a categorisation for energy projects: a project over a 50MW threshold would be deemed to be a national project; a project between 5MW and 50MW would be a major project; and a project under 5MW would be a local project. Local schemes being defined as less than 5MW would make them more community-based. Such categorisation would avoid confusion as to the scale of a development, particularly in respect of its footprint and the type of involvement. When I suggested that a project should be classed as major, I was thinking about the terms of assessment of a project before submission to the planning system and the types of scrutiny after submission.
If a hydropower scheme, such as those in which we are involved, is over the 1MW threshold, rather than the 50MW threshold, it is subject to Electricity Act procedures. No such schemes could be defined as national developments—in some cases, one wonders whether they could be defined as major developments, albeit that they require environmental impact assessments. We want separate legislation or statutory instruments so that hydro schemes will be treated slightly differently.
I want to make a comparison with the Irish planning system. Airtricity, which is an Irish company, has several energy schemes in the Republic of Ireland. The Irish Government is preparing a strategic infrastructure bill and proposes that applications for wind farms over 100MW capacity or with 50 turbines would be handled by the Irish Planning Appeals Board—An Bord Pleanála—and not by county councils, which is similar to the proposal on national developments for Scotland. One reason for the promotion of the strategic infrastructure bill is to make the Irish system more responsive in respect of the speed of its decision-making. The aim is that decisions would be given within 28 weeks by the planning board. That recognises the importance of delivering major infrastructure projects in the Republic.
The Scottish Renewables Forum has expressed misgivings about supplementary planning guidance—which could be attached to local plans under the terms of the legislation—because of the risk that it could be used as a device to frustrate national guidance. However, things could be the other way round—such supplementary guidance could be a positive device to help to identify more suitable sites. Will Mr Smith expand on that theme?
I should make it clear that we are not, as with the last panel, opposed to supplementary planning guidance, although we have concerns about its status, on which the bill is unclear. Supplementary planning guidance would need to be subjected to appropriate scrutiny. What is not clear is what would happen were it to depart from a development plan or from national guidance. We know of local authorities that have adopted supplementary guidance that has departed from the local development plan. If that happens, the plan and the guidance need to be reconciled; if they are not reconciled, people will have two—contradictory—pieces of guidance at local level. We say to the committee that that should be resolved. Supplementary guidance needs to be subject to the same level of scrutiny as the development plan. People would need to know why supplementary guidance contradicted the development plan.
If I may, I will give an example that illustrates our concerns. Last October, I attended a hearing, although it was not one that involved a scheme of ours. During the hearing, a member of the planning committee said to the head of development control, "We have two areas of guidance before us: the national planning policy guidance and our own supplementary guidance. Clearly, they are in conflict. Which one should we give greater weight to?"
We have got the message: you are looking for consistency in the various categories of plans and guidance.
I will start with the scoping that is undertaken prior to the formal submission of an application. As part of that procedure, the local authority or a statutory consultee, for example, can raise all the relevant issues. The EIA work is undertaken, following the submission of the formal application, and pertinent and relevant issues can arise at that time. Under the current planning system, developers are prevented from making amendments. That is a concern, as amendments can be positive and helpful in securing better schemes.
I endorse that. There is a perception that an application that is varied following submission is a bad thing, as it is flawed in some way. Often an application is varied in order to meet the concerns of statutory consultees or as a result of communication with communities or third-party consultations. In some cases, the developer has made a positive move in making the variation. In any case, the developer's ability to vary will be at the discretion of the local authority or the determining body.
There is another aspect to variation, which is the ability to vary a consent that has been granted. Because of the nature, scale and location in which wind farms tend to be built, we have an ecological and an archaeological clerk of works on site. They work with us and with the local authority to ensure, for example, that if an access track has to be moved to avoid a particular feature found on the site, it can be moved with the authority's consent, using the variation powers. Those powers are important and they work effectively.
So you are looking for more flexibility.
Yes.
What will be the practical implications for you of pre-application consultations and predetermination hearings?
The proposal for an application notice is understandable, providing the application does not have to be defined too closely. That would defuse the purpose of consultation. The proposal for a pre-application consultation is fine, as long as it does not seek to predetermine the application itself. A pre-application consultation that seeks to resolve issues and to engage with consultees before the planning authority's proper scrutiny of the application would be a good thing; but a pre-application consultation that puts everybody's backs against the wall and leads to confrontation would be hard for a local authority to go back to after the due process of consideration.
Pre-application notification is a good idea. If local authorities know what is coming, it is easier for them to allocate resources. Our only concern is about the period of notice. The bill suggests 12 weeks, which we feel is a long period before the actual submission. I believe that other kinds of legislation have periods of 28 days. That would be a more realistic timescale.
I agree with Debbie. The wind industry excels in its approach to pre-application consultation. Primarily because most applications will involve EIAs, there is a long lead-in before the application is submitted. That gives us the opportunity to engage with the community and to discover the issues that are important locally. Those issues can then be addressed, primarily from an environmental perspective.
What about predetermination hearings?
Again, I welcome those. Many local authorities will offer hearings when they reach the determination stage, particularly if the application is considered to be a departure from the development plan. The current advice in PAN 41 is that departures from the development plan should be subject to hearings. Hearings give the developer the opportunity to comment on objections or to expand on the benefits of a project.
If there are departures from the development plan, should the community be at the hearings too?
Yes.
Yes.
Are you concerned that procedures may not be standardised across the various planning authorities? Should they be standardised, or should there be flexibility?
If they were standardised, communities would have more certainty. Procedures vary from local authority to local authority. Standardisation would be welcome as it would give communities certainty and a clearer understanding of the planning system.
Are you, as developers, in full agreement with the Executive's proposals on public consultation and involvement in the planning process?
Yes.
Thank you. That is useful to know.
Was that a trick question?
It may well have been, Mr Home Robertson.
I am sorry; will you clarify that for me?
In the bill, there are five new grounds on which a local authority does not have to consider a planning application. In your written submission, you suggested that those might not be helpful. Will you tell us why you think that the new grounds are unnecessary?
There are a number of reasons why it might not be helpful for a local authority to suggest that it does not want to consider an application. I think that you are referring to our comments on the resubmission of applications. Often, an application in which we are involved has to be varied or amended in some way. The mixture of local authorities' discretion to refuse an application, the refusal of a substantially varied application and the limited possibilities for appeal is of concern to us. We are concerned not about one of those in particular but about the combination of the three.
If there is proper and full consultation with communities, the need to amend any proposed application will come early on in the process, before an application is submitted. If that is the case and if your organisations are signed up to full consultation and involvement with local communities, it might not be necessary to reapply constantly for the same planning consent, so the point that you make in your written submission is perhaps bogus.
In an ideal world, communities would give feedback at the early stages of an application, but that is not always the case, unfortunately. At the moment, we try our best to implement full community consultation at the scoping stage of a project and when the application is in for determination. I am afraid that you would be amazed how many people come to us even after consent is issued and say that they did not know anything about the application regardless of whether we have advertised in papers, done leaflet drops or held exhibitions. The opportunity to resubmit an application—either a variation of an existing application or a slightly amended scheme—to accord with feedback that we have had throughout the process is welcome. The provision will be good for developers.
The requirement to modify an application often results from comments from statutory and other consultees. Scottish Natural Heritage or Historic Scotland might raise a particular concern that was not identified through the environmental impact assessment and seek a modification—for example, the deletion of certain turbines from a project. Airtricity might agree with that and wish to modify the application but, under the bill, the local authority could decline to accept that application. That is where the concern lies. It is about enabling us to submit not multiple applications for the same development, but the same application that has been modified to take account of feedback.
There was a recent example of a scheme that had planning permission on which a statutory consultee issued a further view very late in the day. It said that other issues had come up since it made its first submission, it had some objections and it was seeking to have several small changes made to the plan. At that point, the developer did not have time to respond because only a couple of weeks were left before the date of the planning decision. The local authority looked at the situation and decided to reject the scheme on the basis of the new information. The developer was then able to look at the plan again and resubmit the application for the scheme having taken on board the statutory consultee's comments. Effectively, the developer had removed all concerns.
Do you accept that communities also need a degree of certainty, particularly about developments that they do not necessarily want on their doorstep but which they accept society requires? The constant threat of an application being made to a local authority time after time causes communities great anxiety. A balance must be struck between the rights of developers and those of communities.
I accept that. What usually happens with a variation of an application that might lead to resubmission is that circumstances change. That can lead to an adjustment that benefits the community or the environment. For example, recently we had to make a variation because of otters moving their holt up close to a hydro intake, which resulted in us having to move the intake to a different place with the full agreement of Scottish Natural Heritage.
A local authority could use those five criteria, but there is absolutely no requirement for it to exercise the new powers if the circumstances that Mr Malyon has just outlined are to the benefit of the community and the local authority.
I understand that. The bill states:
I understand the point entirely. Local developers fear that if a local authority had a problem with the type of application that they were pursuing, that section might be used to their disadvantage. If the section were to clarify that a variation was intended to meet the requirements of a statutory consultee's comments or to address the concerns raised by consultees throughout the process, it would be a positive move forward.
Each planning authority will be required to establish a formal scheme of delegation. Where a planning officer refuses or grants permission, subject to conditions, the applicant will have a right to review. What are your thoughts and comments on that aspect of the bill?
We have concerns that the right of appeal against a local authority's decision in effect will stay with the local authority. We feel that it would be fair to offer an independent, third-party right of appeal outside the local authority.
Do you have any ground for suggesting that it might be unfair to leave the decision with the local authority, since it will be delegated to officers of the council?
Our concern is that if a local authority had a problem with the type of development that someone was pursuing, the decision taken might not be the same as that of a third party.
Would many applications from your organisation be dealt with under a scheme of delegation?
Probably not from my industry.
What you describe is a real issue for smaller-scale developments. Experience to date suggests that a one-size-fits-all approach can be taken in the planning system. For example, an individual business might seek to install a turbine, which would be a relatively minor-scale development, but in some instances local authorities have sought to apply the criteria that they use for major-scale wind farms and have showed no willingness to inject a sense of realism into how they consider such a scheme. We are concerned that under the delegated authority proposals, those schemes would have no exit route, whereas larger schemes would be able to seek appeal by dint of their size and the hierarchy. Smaller schemes, in which there might be more opportunity for development as well as community-led development, stand a chance of being trapped because of criteria being applied too stringently or inappropriately.
The previous panel made the point about local knowledge and local councillors having knowledge of their community. Is that not useful in the planning system?
The main concern is that planning officers usually refuse permission on planning policy grounds. If local councillors are to hear appeals, they will be familiar with those policies, because they probably approved them. The benefit of having a third party consider the appeal is that they can look afresh at whether the policies have been applied appropriately. It brings somebody else in to oversee the application of policy.
The bill proposes to reduce the standard duration of planning permission from five to three years. Are you concerned about that?
Yes. I heard what the previous panel said about the timescales that are associated with larger companies, which must schedule board meetings and so on. It is amazing how quickly three years can pass when a decision must be made about whether to pursue an expensive and time-consuming public inquiry, for example. A fear is that the Scottish Executive or determining bodies could be inundated by applications as a result of the proposal.
The previous panel talked about the related issue of section 75 agreements and we share its concerns. Such agreements can take a long time to reach, from the initial resolution to consent. That can eat substantially into the duration of permission. We would like more focus to be placed on ways of streamlining section 75 agreements, because agreements have many standard terms and authorities have good practice, for example. Some matters could be pre-agreed. I do not suggest presupposing that consent would be given, but non-contentious issues could be got out of the way.
Is there a case for giving further guidance, perhaps in the form of a PAN, to apply in situations in which a major development might be at the mercy of infrastructure providers? In such circumstances, the guidance might be that local authorities can vary the proposed three-year duration at the applicant's request, if he can show reason for varying the duration, or that the duration of planning permission should be different. One size does not fit all.
I think that the bill allows for that, but I cannot put my hand on the relevant provision at the moment. Do you understand communities' concerns? A community might hope to see houses or development but instead have a building site for a long period. Do you understand the Executive's thinking in reducing the time, to meet community interests?
Yes. I emphasise Harry Malyon's point. We would like clearer guidance about how a local authority might change the duration, which is unclear. We are concerned that planning permission might become unusable and that, when a developer reapplied after time, it would be denied permission, so all the good work that had gone on and the consensus that a scheme should proceed would be taken away. Clarity about how to change the duration for major projects would be useful and helpful.
One of the main features that we want is increased confidence in and certainty from the planning system. One major issue that faces us is the length of time that is taken to make grid connections. Reducing the period of consent to three years would not deliver confidence and certainty for investors when we face lengthy waits for grid connections.
Is your view based on how the system currently operates?
I was giving a specific example, but I endorse the comments that were made about the time that it takes to negotiate section 75 agreements and to discharge conditions. After consent is granted for a renewables project, particularly for a wind farm development, there remains a lead-in time because issues to do with land, legal agreements and engineering must all be approved after consent is granted. A three-year timescale would be quite tight.
We are taking forward a development for which consent was secured not by us but by a developer who could not progress the project. The developer's application had gone to appeal and the reporter had imposed a condition that within three years the turbines must be built, in operation and connected to the grid. It had quickly become clear that although the turbines could be built, the grid connection could not be made available within three years. The reporter had further required that if the turbines were not connected to the grid within three years, the development must be dismantled and the site restored to its pre-development state. We were fortunate because the local authority approved an application to vary the conditions. If the local authority had not done that, a condition that might have seemed reasonable and appropriate when it was imposed would not have been met as a result of the actions of a third party.
The bill would replace section 75 agreements with a system of unilateral obligations. What impact would such a system have on the renewables industry?
We are used to section 75 agreements and we are happy with the obligations that are contained in such agreements, which relate to matters such as restoration, non-interference with television and radio transmission and habitat and environmental monitoring. If unilateral obligations work in a similar way, there is no reason why they should cause us problems.
I agree. I understand that such obligations have been incorporated effectively into the English system. When planning authorities, developers and communities cannot come to an agreement, the approach offers a mechanism whereby developers can offer to take action to meet another party's concerns.
The white paper, "Modernising the Planning System", contains proposals for processing agreements, which are not mentioned in the bill but would be useful, for example when developers discuss with statutory consultees or local authorities the issues that need to be scoped in an application. It is frustrating that statutory consultees often do not take scoping seriously or send clear signals about the further information that they seek from developers. Such issues can delay front-end work for developers.
Mr Smith, you have moved us on to the issue of good neighbour agreements. I welcome your support for them, but I note from Scottish Power's written submission that it is less supportive of them. Ms Harper, will you tell us why Scottish Power believes that good neighbour agreements are unnecessary?
To clarify, we state in our written submission:
In your written evidence you say that there is no statutory need for good neighbour agreements because they will duplicate existing arrangements. Do you accept that, if we provide a statutory framework, all developers will follow the good lead that Scottish Power has set? That will ensure that other communities benefit from the good practice that has been established by Scottish Power.
That is another trick question.
In our submission we mention a community benefit scheme in Argyll and Bute. In that example, we work in an environment that is similar to good neighbour agreements, but the administrative mechanisms are slightly different. The principle of good neighbour agreements is fine, but we are concerned about the logistics. I agree that, if other communities can benefit from such things, that is good.
I endorse what Debbie Harper said. The renewables industry has a good track record of engaging with the community before, during and after construction. Last year, we had an open day at our wind farm site at Ardrossan and 1,000 people came to the site to see what was happening. They were enthused by the development and we continue to work with the local community. There is commitment to engage with the community. My point is that the planning authority should have a clear role in discharging conditions and that the community's role needs to be clarified.
I apologise for having to leave the meeting earlier.
Our main point is that the majority of the projects that we are involved in are environmental impact assessment projects and information often emerges between the request for written submissions and the determination of the appeal. For example, concerns might be raised about birds and further monitoring might be done—
Otters.
Yes. It could be otters.
I was listening. That was the highlight of the day.
There is an advantage in people being able to introduce fresh evidence as long as it is associated with the original application.
So you would resist what we have at the moment, which is—
At the moment, it is particularly tight.
At present, an appeal could be running and a new application could be going through. I think that the Faculty of Advocates mentioned that.
In our evidence, we suggested that, with regard to an appeal and any impending inquiry, there should be some flexibility about what can be discussed.
One solution might be to require the submission of supplementary environmental information at a certain time during the appeal process. That tends to happen at the moment. The reason why there is a requirement to submit the supplementary information is that there is a time delay between the original EIA being submitted and a decision being taken whereby modifications are made and new information comes forward. In an appeal situation, it is appropriate that the reporter and the ministers have all the environmental information before them.
The issue of changing circumstances is already covered, is it not? If the matter could not have been raised before that time, it can be raised at that point.
There are concerns that the appeal would consider only the original application. I am not aware that there is a specific provision that supplementary environmental information can be brought forward.
The bill says:
I will look into that.
You heard our earlier discussion on the question of increased fees and the aspiration for an improved, efficient and streamlined service from planning authorities. Can you give me your views on the acceptability of higher fees and the trade-off that would be required if we were to achieve a swifter process?
Our views accord with those of the previous panellists, in general. If increased fees brought more certain determination times, that would be helpful. A parallel to that is found in the fee increases that were set last year by the Scottish Executive. The industry supported that because it allowed greater resourcing within the section 36 team at the Scottish Executive. If increased fees do not produce better determination times, however, we would have concerns. We also accord with the view that the issue is to do with not only the local authority's ability, but that of other statutory consultees, to engage with the process within an effective timescale.
One of our biggest difficulties is getting statutory consultees to engage in consultation before an application is made. That is particularly important in a situation in which we are happily going down the route of enhanced public and community consultation, prior to application.
In the white paper, a processing agreement was suggested as a means of getting more efficiency into the determination of an application. We saw that as quite innovative. If that could be done, with the agreement of the statutory consultees, in relation to meeting timescales for feedback to the determining authorities and so on, that could be a useful tool for making the system more efficient.
Finally, there is the question of redress if the system breaks down: if higher fees have been paid, but there is no change in performance or it is poorer. What form might such redress take? Should it be applied to some of the statutory consultees?
We are already in a position where, if a particular party at appeal is seen as having been unreasonable, costs can be awarded against that party. I suspect that that might be the fundamental safety net for the redress. It is difficult to imagine a statute that could actually determine effectively how hard people have worked to determine an application. One just has to hope that increased provision of financial resources will enable local authorities, and possibly statutory consultees, to take up the game and fulfil their responsibility. I do not know that we would have any specific proposals for refund of fees, because if delay occurs it can be difficult to decide whose fault it is.
I would encourage more thought to be given to the concept of processing agreements, which Debbie Harper mentioned. That will focus local authorities' interaction with statutory consultees, because if they have signed up to a processing agreement they will want to get a certain level of service from the statutory consultees to enable them to fulfil the agreement.
Earlier, you agreed that, in a modernised planning system, there was a need for proper community involvement and consultation. Based on your experiences, what do you think would constitute effective communication, consultation and involvement for communities?
It is difficult to make a sweeping generalisation about that. If every opportunity is given for involvement between the applicant and the communities, the important thing is to ensure that the outcome of that involvement can be incorporated into the development of a project. There are projects where Scottish Power has conducted various levels of consultation—at the scoping stage, at the outset of the project and later on, to show how the project has moved on since the initial stage. Sometimes, things happen during the determination of the application that mean that we have to go back again and tell people how the project has changed. You have to ensure that whatever you get from a consultation is effectively incorporated into your project.
On Monday, I was speaking at Our Dynamic Earth, at the Holyrood conference on community engagement, talking about a plan that we are trying to put in place to engage with the new PAN on community engagement. That will take the form of a practical example of community engagement on a project where we are going to go further than we normally go. In fact, we shall probably go even further than we would expect to go in the fullness of time, to test which methods of community engagement work and which do not.
To put the question another way, we could ask how we will know if there has been sufficient engagement. The process that has just been outlined is an example of the approach that developers hope to take. The bill and the PAN on community engagement are encouraging active involvement and community engagement. For the renewables industry, the process will be successful if people's expectation of what a development will be like is the same as their feeling about the end result. In assessing the wind schemes to date, the Scottish Executive has surveyed attitudes to wind farms among people who live near them, who are best placed to say whether they are good or bad. Prior and subsequent to developments, people were asked what they thought of them. The surveys found clearly that the major concerns that are raised prior to developments usually fall away post-development. People realise that the development is acceptable and that the noise, traffic and construction were not really major concerns.
One criticism that communities often make of the planning system is that, when community organisations or individuals write letters of objection to local authorities, they either do not hear anything back, or they get a bland acknowledgement letter. It is not clear how people's concerns are taken into account in the planning system, primarily by the local authority.
Involving communities in the planning process so that they are not only informed but feel part of the process will go some way towards rebuilding confidence. However, the committee has heard evidence from people who have suggested that the bill will not go far enough and that only the provision of a limited third-party right of appeal will give communities genuine confidence in the planning system. Those people have suggested that communities deserve that right for social justice reasons and that they should be treated as equitably as developers are. Do you agree with them? Is a third-party right of appeal necessary?
I will again comment on the Irish planning system. I mentioned the Irish Planning and Development (Strategic Infrastructure) Bill 2006. One reason for introducing that bill was to respond to how third-party rights of appeal in major infrastructure projects are slowing down the Irish planning process. Under the current system, 50 to 60 per cent of all wind farm applications are subject to appeals. The new bill proposes to remove third-party rights of appeal for such developments. People in the Republic of Ireland therefore recognise that third-party rights of appeal can lead to an unresponsive planning system.
There will be less involvement and more national decision making in Ireland as a result of what it has gone through. Our view is that a third-party right of appeal would bog things down. We know from the Irish experience that most wind schemes that attract criticism and campaigns can be subject to a third-party right of appeal whether or not there are any reasons to appeal.
The bill aims to build trust between the developer and the community, and we are looking for something that is two-way. We are looking to build trust through the bill's process of initial consultation, pre-application consultation and through a strong local authority view. Then, where it is appropriate, the Scottish ministers can call in an application to represent the interests of third-parties, where statutory consultees see it as inappropriate or, if the development is refused for reasons that we disagree with, to allow us to appeal that decision. The Scottish ministers then make the decision.
That concludes members' questions. I thank the witnesses for coming before the committee. If you think that there are any issues that the committee has not covered, please do not hesitate to contact us in writing about them.
Meeting closed at 13:31.