Item 4 on the agenda is the draft Scottish planning policy 16, "Opencast Coal: Consultation Draft". The committee will hear evidence on the draft planning guidance from the Deputy Minister for Communities, Johann Lamont, who is accompanied by two officials from the Executive: Alan Denham, head of planning division 4 in the Development Department; and Ian Mitchell, policy officer from planning division 4.
I am not sure how short the statement will be, but please interrupt me if I go on for too long. I thought that it might be useful to outline the Executive's thinking on the matter because concerns have been expressed on all sides. I watched the committee's evidence-taking session last week and read the Official Report of that meeting, so I am aware of the issues that were raised. I will try to be brief, but I want to give the committee some detail as well. We will be happy to answer questions thereafter.
Thank you for your comments. You have raised a number of issues that the committee will want to pursue at length.
I must once again raise an issue that I have mentioned before. I am grateful for the minister's lengthy and very helpful statement; however, it would have been more helpful if we had received a copy of it in advance of the meeting. I do not know about other committee members, but I do not find it helpful to try to make notes while listening to a long statement that contains concessions, adaptations and other announcements. I simply wonder why we cannot receive such statements with all our other papers.
I am not sure whether there is any particular reason why we can or cannot receive such statements. However, members will pursue at length several issues that were raised in the statement. After all, that is the purpose of the questioning. I would have thought that the purpose behind the minister's statement was to flag up some issues that we might or might not want to pursue. The issues that are pursued with the minister—whether or not she has raised them—are entirely at committee members' discretion. With that, we move on to questions for the minister, which will probably be a lengthy item.
Let me say first that I shall certainly reflect on the points that have been made in relation to the statement. It is helpful to get things on to the table—not as a way of preventing members from asking questions, unfortunately, but as a way of informing the direction that the debate takes. The statement was certainly not intended to be anything other than helpful.
Are you confident that those rules of engagement will enable communities to feel reassured that, if breaches occur and their concerns are not addressed, there will be sufficient scope for local authorities to respond to those concerns? Will local authorities also be able to respond to the concerns of the industry that all their applications might be opposed just because all opencast is considered to be bad by one local authority or one community?
The draft guidance is clear in saying that there is a presumption against unless one of two tests is met. That gives the developers a clear indication of what they have to do to secure planning permission. On the other side of the argument, because we are talking about monitoring and enforcement, we are considering site visits. Communities also need to know that a developer's commitments are real. There is a real commitment to compliance plus, and there is evidence of that in the examples of good practice that have been developed by operators who realise that there is a benefit in taking such an approach.
All the community representatives whom we met last week made it quite clear that they felt that they were disadvantaged in terms of resources and time. For example, they said that they received copious documentation with only two to four weeks to go through it. The theory that communities will be involved is all very well, but the practice is often different. What assurances can you give about the resources and assistance that will be given to communities?
Our communities, despite their own argument that they are disadvantaged, have been clear, visible and effective in making their case about what has happened to them.
Multiple and repeat applications are causing communities particular grief. Do you have anything to add on that matter? Will having a presumption against development help communities to become involved at earlier stages or in different ways?
One of the main things that we have tried to do in relation to multiple applications is to create a sense of certainty. Areas that may be considered for opencast should be identified clearly and local people should be aware of that. Uncertainty is created when applications are made for one area and extensions are sought over time. We are trying to write in as much certainty as we can at an early stage. In my view, having a presumption against development, except where one of two tests is met, concentrates minds. If someone has to establish that there is community benefit, I am not sure that they can do that without working with and speaking to the local community, and providing evidence that they have done so. That should give people reassurance. A presumption against development may not do what is claimed for it, but it means that when someone is seeking planning permission they must make the argument for why the development would be beneficial.
There was a call for an independent adviser—similar to the one that exists for tenants in cases of stock transfer, for example—to be appointed. What is your view of that suggestion?
I know that during the stock transfer process it was regarded as important to ensure that people had independent advice. I am happy to consider the suggestion further.
I want to pursue the same theme, from the point of view of councils. We have received complaints that councils are not adequately resourced with planners to carry out consultation before anything is decided. We want to have a three-way consultation involving councils, local communities and developers, but it is alleged that councils cannot play their full part in that.
Obviously, there is always an issue of resources. People always make that point. However, the issue in planning is not just financial resources. You are right to highlight the fact that there are other resource issues. If we think of some of the difficulties that are involved in planning, we can understand the pressure to which it is subject as a career option. The Executive has acknowledged that the issue of financial, staff and technical resources is important and has commissioned research into the current financing of planning authority functions. It is important not just to manage the system but to carry out enforcement and monitoring.
Some communities feel that some councils have a predisposition in favour of the developer and against the community. Will SPP 16 redress that and make the argument more equal?
What people feel and what is the case can be two different things. We often judge the quality of somebody else's views by whether they agree with us. The view of the planning process that I took as a constituency member tended to be swayed by what came out at the other end of it. It is not possible to make everybody happy at the end of the process, but SPP 16 provides rules of engagement that create an expectation that certain things will have to happen. That process should be transparent; it should enable planners to say that a development is environmentally acceptable or offers a local community benefit, and give the evidence for that. That should help, but I realise that trust cannot be created in a moment because it is affected by what communities have experienced in the past, which will take a long time to unpick.
In your earlier response to me, you picked up on the presumption against development. You will be aware that the coal industry and the trade union movement have raised concerns about the presumption against development and said that introducing it represents a substantial change to existing planning guidance. On the other hand, the Executive has argued that the terminology that is used does not change the effect of the planning policy tests. I would be grateful if you would explain to the committee why the term "presumption against development" has been chosen for SPP 16.
Our research indicated that it was a policy-neutral change, but we recognised that, because of communities' experiences with opencast mining developments, there was a feeling that the planning regime in Scotland was easier than that in England and therefore that there was no level playing field. The reason for the shift to the presumption against development, after reflection on the recommendations that came out of the research and the original investigation by the Transport and the Environment Committee, was simply to reassure communities that they had the same entitlements and rights as communities south of the border. It is as simple as that.
Is the industry being singled out for harsher treatment than other industries because some communities consider opencast mining to be unacceptable? Last week, the committee took evidence from some witnesses that if a presumption against development is to be introduced, it should apply not only to opencast coal mining, but to landfill and quarrying, which have similar environmental impacts on communities.
As I have said, history plays a great role in the matter. The history of the opencast mining industry led the incoming Labour Government of 1997 to make a political commitment to address opencast mining. We cannot say that the historical context that has led to the development of the policy does not exist.
The convener touched on the nub of the matter. The issue comes down to people in the industry being concerned that using the "presumption against" terminology will somehow contribute to a decline in opencast mining. I am interested in your view that the use of that terminology will make little difference and that the proposals are policy neutral. You are saying that, in some respects, we are playing with semantics and that only the language is being changed, without there being any dramatic effect, although communities might be reassured. I wonder whether that is the best way of proceeding when we are discussing planning legislation, given that the main determinant of whether people think that the planning system is robust is the output.
I do not think that the change is policy neutral—an independent researcher took that view and we have progressed on that basis. Obviously, I do not accept that SPP 16 will contribute to the decline of the industry, but I understand why people who are concerned about the industry declining might be worried that that will be the policy's consequence. I hope that SPP 16 will contribute to the decline in bad practice in the industry and push out people who have ridden roughshod over local communities and contributed to a build-up of serious mistrust over time as a direct result of people's experiences. All of us would be comfortable with that.
I want to ask about the two tests. Community groups and Friends of the Earth Scotland have expressed concern and have asked whether the tests will be based on the perception of the people who are affected—that is, whether a proposal should be acceptable to the people who live nearby or to the local planning authority—and whether community benefits should outweigh impacts. Who will make such judgments? In addition, will SPP 16 give protection to communities when they feel that a development is unwelcome?
I do not know whether you are suggesting that a local community should have a veto on any development in any planning circumstances if it feels that the test had not been met.
My question is whether the policy will ensure that the community's perception and judgment are part of the consideration.
The two tests are that a development should be environmentally acceptable and that there should be community benefit, and the authority would have to show why it believed that those tests had been met. If the authority had not spoken to anybody and had not involved itself with and engaged with the local community, it would be difficult to see how there could have been transparent consideration of the evidence and how a conclusion could have been reached that there was community benefit. The issue seems to me to be straightforward. It would be for the planning authority to make a judgment. The logic of your position is that the local community should basically be asked whether something is acceptable—it would be up to the community to say yes or no. In that case, the planning authority would not have the same role.
Let me make a comparison. I am led to believe that mineral planning guidance note 3 says that developments must be acceptable to local communities, whereas SPP 16 says that the planning authorities are the ones that make that judgment. Is that correct?
The decision is taken by the planning authority, which has to have regard to the views of the local community. The purpose of SPP 16 is to strengthen the role of the local community. We might get on to a discussion of the 500m separation distance, which is an example of greater strength and security being given to the interests of the local community. However, ultimately, it is for the planning authority in which the proposal rests to make that decision, and it will have regard to the views and concerns that are expressed by the local community.
Can you reassure Friends of the Earth and the community groups that have spoken to us about their concerns that SPP 16 gives adequate protection to communities that feel that developments are not acceptable?
The policy has been driven by an understanding of the experience of local communities. We have developed the policy because we recognise the fact that communities have been badly served in the past—or have, at least, felt that they have been badly served—and we feel that this policy improves their position. It identifies the fact that they have a role to play as the proposals are considered and decisions are made. That is not the same as saying that whatever a community group feels will determine the ultimate decisions, as that would be devolving responsibility to that group. Nevertheless, SPP 16 says that any planning authority that is making a decision on a development has to understand properly and address the concerns of local communities.
My final question in this section is based on comments that were made last week by the Scottish Society of Directors of Planning about the operation of trust funds and other kinds of financial benefit that are provided. What is your view on the need to maintain a separation of those from the material considerations in the planning decision that is being made? The concern was, in the words of Richard Hartland, that we should ensure
Both tests will still have to be met, no matter how many wonderful things are promised for the local community. That is a broader planning issue that people are aware of. Engagement with the community by the developer has to be real. It is not about what the developer can promise the community in order to get the thing sorted; it is about ensuring that developments in local communities generate economic or community benefit, that they are environmentally acceptable and that the community can live with them. In some circumstances in the past—not specifically in relation to opencast developments, but more generally—the process has led to feelings of distrust because that type of bargaining game has been people's experience of negotiation with the developer.
Christine Grahame, too, has indicated an interest in the issue.
It is all right. Patrick Harvie has asked about what I was going to ask about—the business of to whom the development has to be acceptable. We have dealt with that.
The presumption against opencast mining has generated a lot of interest in the committee and more widely. Did the Executive consider using the procedure that is now used in the consideration of planning applications for telephone masts from companies in the telecommunications industry? Before submitting an application, a company has to go through a consultation process with the local community. Was that considered in any way?
Good practice in involving communities is to be encouraged. An obvious example of communities being listened to relates to the 500m separation distance, which reflects previous experience. As local members will know, no matter how good practice is in dealing with planning applications for telecoms masts, people are unhappy if the masts are at their door. The difficulty is that even where there is good practice and a lot of engagement, if someone is not happy with the final decision, they will remain concerned about it. However, it is important to work through issues with communities, so that they feel that they are being taken seriously.
The point is that there is no presumption against the erection of telecommunications masts, but there is a requirement that a company must demonstrate that it has consulted the local community and tried to address some of its concerns before the local authority will consider the application.
If one of the tests is that there will be community benefit, how could a developer establish that unless it could give evidence that it had worked with the local community and persuaded it or suggested to it what the benefits would be?
So it is your intention that any company applying for opencast would consult the local community before an application was submitted.
I would certainly hope so.
Yes. We will also look at the planning bill to strengthen that provision.
Minister, before we move on I want to ask a supplementary to the questions asked by Patrick Harvie, about the robustness of guidance to planning authorities that will take the ultimate decision on whether an application passes the community benefit test. In my experience—from which the concerns of Friends of the Earth stem—Greengairs community in my constituency, which we heard from last week, feels that it has an unacceptable burden of certain types of development. Communities such as Greengairs are looking for reassurance that their concerns and beliefs about what is in their interests will be acknowledged by local authorities, because local authorities might have a different view of what is in a community's interest. What monitoring will there be of the effectiveness and implementation of the community benefit test?
Draft SPP 16 recognises that cumulative effects are significant in some places. If it is relevant, an assessment of the likely cumulative impacts must be carried out. If such impacts cannot be adequately mitigated, planning permission should be refused. It is recognised that some of our communities have carried a greater burden than others have. However, the broader issue of the need for community involvement and engagement and so on is a thread running through the policy, and it demonstrates why the policy is important.
I will follow the convener's earlier line of questioning about extending the presumption against development. I heard what you said about the long-standing political commitment and the tests. Do you have any plans to introduce the "presumption against" terminology in other areas of planning? Specifically, although there are no opencast mines in the Highlands, communities are seriously concerned about wind farm developments and the fact that they have little say. Are you considering extending the presumption against development now or later?
Some matters will be dealt with under broader planning legislation and people will have opportunities to raise such issues if they wish to. I am not sure whether wind farm developers have treated local communities in the way that some communities near opencast coal mines felt that they were treated—they had blasting right beside their doors and so on. I do not know whether the two situations are comparable. Under planning legislation, all those issues will be explored, but the Executive has no commitment to adopt a presumption against development in other policies. I have explained how we reached the position on opencast mining.
Do you intend to extend SPP 16 to cover other mineral extractions, timber and contaminated land?
We have a separate policy on mineral workings. We can obtain its number for you.
Do you intend to extend the presumption against development to mineral extractions and timber?
The presumption against development relates to opencast mining. Whether other examples of bad practice exist is a separate matter that has no impact on the view that is taken on SPP 16. Through planning discussions, all such matters may emerge.
You say that the presumption against development is being introduced to address bad practice in the opencast industry that does not exist in other industries.
The original national planning policy guideline was developed to deal with people's concerns about opencast mining. The changes—some of which are far more important than the presumption against development—were prompted by a review of the guideline's impact. One concern for communities was that Scotland did not have the entitlements that were available south of the border. The change has been made to address that concern. We cannot say that SPP 16 concerns only the presumption against development; it deals with a range of matters that relate to people's experience of opencast mining.
The minister has answered many questions about the presumption against development. I invite her to talk about the background—the presumption in favour of development that was in place until 1999, when many of us could cite constituency experiences of communities that were under siege from proposed opencast developments. Even if an application was turned down, a developer would simply return with another application. The background of the presumption in favour of development has made the policy necessary. Will you say why the Executive rejected the regime that applied before 1999?
Communities and their representatives have highlighted those communities' experience, which explains the political context in which the incoming Labour Government took action on opencast mining because it was such an issue that communities were not involved, that engagement was lacking and that unacceptable practices were being followed.
I associate myself with Mary Scanlon's remark that once one opens the door to a presumption against development when communities feel particularly disadvantaged by environmental disruption, that could be extended to wind farms or other developments. If you do not take that direction and instead choose to single out opencast developments—although I am very much in favour of a presumption against them—general planning law may need to include the remedy of a third-party right of appeal in particular circumstances. If you choose not to have presumptions against other types of development, communities will need to feel that they have a remedy that allows them to take action against proposed developments on their doorsteps, which they do not have at present. Will you comment on that?
The Executive is developing its view on planning policy and the proposed planning bill. As part of that, the strongly held views on a third-party right of appeal will be examined. One of the drivers of those views is people's feeling that they have fewer rights, that their views have not been properly included and that the system has not engaged them. We are considering a planning process that involves people. Any discussion about whether the process should technically include a third-party right of appeal must be shaped by the fact that the issue drives many people's concerns.
My question is also on the presumption against opencast developments, convener. Sorry, I mean minister—I am still not used to you sitting at the other side of the table. Last week, we heard evidence from representatives of trade unions and the coal industry, who were concerned that a presumption against developments would result in jobs being lost in the industry in Scotland. They feel that their fears are real given the experience south of the border with MPG 3, which was introduced several years ago. They claim that they have evidence that substantiates their fears. Do you have any comments on that?
We take it seriously when the industry and trade unions raise concerns about job losses. In their view, there is a direct connection between the phrase "presumption against" and job losses down south, but I do not think that a direct correlation can be made. The draft guidance is clear that employment is to be considered as a benefit in assessing proposals. If it is established that a development would provide good jobs, the presumption against should not attack the industry.
Friends of the Earth Scotland told the committee last week that jobs might be lost in the industry in Scotland because of SPP 16 and suggested that aid should be made available to those who lose jobs. If jobs were lost, would the Executive consider providing assistance or aid?
Obviously, the view of the Executive is that jobs should not be lost as a consequence of planning policy. However, we are always committed, when there are job losses in any sector, to providing support to people to enable them to get into other work and we are committed to supporting local communities. For example, the Coalfields Regeneration Trust was established in recognition of the fact that a shift was taking place—a significant industry that supported local communities was closing down. I do not believe that such a situation will occur as a consequence of the new planning policy, but I regard it as good enterprise and employment practice for us to address employment issues where they arise. However, I do not think that that issue applies specifically to the new planning policy.
How will the Scottish Executive monitor the impact of SPP 16, if it is implemented in the form in which it has been consulted on? Will you revisit the issue if in two years' time it becomes apparent that, as some people have suggested, applications are not being approved?
Planning policy must be kept under review constantly—for example, to keep up with technological developments or to take account of a report that indicates health issues. As I have said, SPP 16 will be no exception in that respect. If emerging trends give us concern, the issues will be addressed. If SPP 16 is agreed and in two years' time, or whenever, people say that there is a huge decline in the industry and make a connection between the two, it will be necessary to explore whether there is such a connection. The issue will not have been parked; it is good planning practice always to review such matters.
We know that a lot of permissions have already been given and that there are still five or six years' work, so it is the longer term that is particularly worrying for the industry. Will you monitor the situation in the longer term? Concerns have been expressed to me that an easy option for local authorities—which, as John Home Robertson will deal with shortly, lack resources for enforcement, among other things—will be not to grant permission at all.
I am not sure why that would be the easy option.
The perception that I have had relayed to me is that, if local authorities feel under-resourced and think that they will have a lot of enforcement and a lot more work to do because of the new planning guidelines, they may find it easier to say, "The case is not proven here so we cannot give permission."
We would be disturbed if we thought that local authorities would not carry out their duties appropriately in relation to planning permission because they felt that they were not properly resourced. We have already said that we are conducting research on the resource issue. That is a matter for discussion with local planning authorities. I do not expect that what you suggest would be a consequence of SPP 16 but, if that is what is being said, we will examine the issue. We are considering in relation to planning generally how the different bits of the legislation work and how we can get as much as possible of the process done at a local level. That is about having active and thorough planning authorities.
I will move on to enforcement and monitoring. I am sure that we all welcome the evidence of better co-operation between opencast operators, local communities and local authorities, which may or may not be connected with the introduction of new planning rules. However, as you have acknowledged, minister, the background is one of a lack of trust and bad experiences. We have received evidence that it can be difficult or indeed impossible for local authorities to enforce effectively planning conditions on noise, working times and access routes. Do you agree with those local community groups that have said that local authorities are failing to enforce planning conditions on the operation of opencast coal sites due to a lack of resources?
We are trying to assist local authorities in carrying out their responsibilities to address people's concerns about opencast. I would not want to say that the situation was all the fault of the local authorities and that they are not doing things properly. There are good examples—I mentioned East Ayrshire—where local authorities are engaging with the industry and the community to put in conditions.
The point is that, with the best will in the world, monitoring is difficult, because of the need for specialised staff and resources. I cited examples from an opencast site that was on my patch many years ago. There were complaints about noise and, in due course, the local authority got around to installing noise monitoring equipment in the neighbourhood. By a strange coincidence, whenever that equipment was deployed, there were no complaints. You said that you are keen to encourage local authorities to do the job effectively. How? Are you proposing to provide extra resources, training and equipment?
The research that will appear at the end of April will reflect not just on financial resources, but on the implications for staff and so on. Again, those will be matters for the broader planning legislation. If we ask for more, that will have to be resourced properly. I have met representatives of local authorities, and work is being done on enforcement. More thorough consideration is being given to how the enforcement regime can be changed. Local authorities have highlighted their frustration about the fact that, if there is no robust enforcement regime, the planning system is undermined entirely. If we front-load the system and impose a lot of conditions, but fail to enforce them, that has an impact on the way in which people engage with the process at an early stage.
The suggestion that the Executive will help to improve the enforcement regime is welcome. I draw your attention to the evidence that we have received from the Scottish Society of Directors of Planning, which said that the regime was cumbersome. You may want to consider that point.
We welcome CoalPro's commitment to finance monitoring and enforcement. Our intention is that each year planning authorities should carry out a number of monitoring visits to all mineral sites in their area. The authorities would need to compile short reports on the results of each monitoring visit and provide an annual report, so that communities could see the results. Councils would receive a fee from the developer for each visit. Using the model that CoalPro has identified, we would establish a fees regime where that has not been done.
So the intention is that the industry, rather than the council tax payer, should meet the cost of monitoring.
Yes.
If, as the coal industry is suggesting, SSP 16 leads to a decrease in Scottish coal production, we will have to import more coal, because in the short to medium term we will need the same amount of coal—we will still require a lot of coal to generate electricity at Longannet power station, for example. I grant that the situation that I describe is hypothetical, but operators have expressed concern that other countries' environmental standards in coal production are much lower than those in the United Kingdom. Do you wish to comment on that issue?
As I have said, if there was evidence of decline in the industry and that decline appeared to be the result of over-rigorous application of the guidance or there was some sense that the tests were not being carried out properly, we would keep the matter under review. If we set environmental and community benefit standards that were undercut elsewhere by folk who did not have the same standards, what position would it be logical to adopt? Should we not have those standards on the ground that there will always be someone who is worse than us and we are just encouraging them? I do not think that that position would be sustainable.
I have a small question on a related issue. If we have to import more coal, regardless of where it comes from, what will be the future impact on the power generation industry in Scotland?
As a local member who is more technically up to speed on such matters, you have the advantage of me. I assure you that it is not my view or that of the Executive that the planning proposal will impact on the power generation industry. If the planning proposal were to have such an impact, that would be a matter for decision by the appropriate Government ministers, as issues that relate to energy policy remain the responsibility of Westminster.
I will move on to separation distances, which are dealt with in paragraph 11 of draft SPP 16. The proposal on a distance of 500m is only a general rule and there is the possibility that it could be varied to
The original suggestion was that there should be a separation distance of 500m, but the industry came back to us and said that work that is of benefit, such as protective landscaping, sometimes takes place less than 500m away from a community. We might reconsider that aspect closely to determine whether such an allowance can be made.
I heard that, but my suggestion relates not only to landscaping that may be beneficial to a community, but to access roads, which are another problem that has been raised. I ask the minister to consider having an absolute separation distance of 500m. The present rule is not absolute. The fact that the separation distance is discretionary takes surety away from communities. They do not know whether work will be allowed to take place less than 500m away because paragraph 11 of SPP 16 talks about account being taken of such matters as
The purpose of the 500m separation distance is to give people certainty and some security. It also reflects the fact that one of the most controversial aspects of the present policy is the provision about the distance between communities and the working face, which does not give people the security that they want. I can check, for clarification, but my view is that the 500m buffer is a standard from which an exception would be made. If there is a need for landscaping and so on, operators can have flexibility and can negotiate that with the local community. The discretion exists in order to give that flexibility, but not to the extent that the provision becomes meaningless.
Draft SPP 16 refers to "a general rule" but it states:
The issue for the planning authority is that such cases would have to be justified.
I want to pursue the point, because we cannot amend SPP 16. I appreciate that the process is different, but is there room in your thoughts to tighten the provision and give more certainty and security to communities? You said that the test is whether the proposal is acceptable, but I take it that that means acceptable to the planners—taking into account the community and so on—rather than acceptable to the community. In many respects, the issue for the community is how close the development will be. There would be more surety and security for the community if the provision was tougher. People might think that there is too much discretion for the developers and planners and not enough for their communities.
The policy intention is to give security and confidence. We recognise that the 500m distance has been a controversial element. If the committee is highlighting the issue as one that should be considered further, I am happy at least to look at it, but the policy intention of the flexibility is driven by good reasons. We do not seek to give people a loophole or to say, "The separation distance is 500m but if you can think of any old reason for reducing it, fair enough. We do not have any expectation that you will have any regard to the 500m." We recognise the importance of separation and we aim to give communities certainty. If, as seems to be your anxiety, the provision may be interpreted so flexibly that there will be no certainty and communities will not get that separation, it seems to me that the policy intention that we have identified will have failed.
It is for the committee to decide whether it wants to suggest new wording to tighten up the provision and give communities more certainty on separation distances, or to propose some other way of firming up what the Executive says.
We have said that it is reasonable for communities to have an expectation of certainty about the buffer zone. I note that operators in East Ayrshire, which have been commended for their good practice, have developed the view that there should be a 500m buffer zone. The local authority and local communities get employment benefits from the industry. They are not against it, but recognise that it is worth while.
Earlier, you said that the presumption against is policy neutral. I think that the information that the committee has received on the matter is neutral. It is probably right to leave a bit of leeway in the provision. You also mentioned the experience of East Ayrshire, where the 500m separation distance works well. Last week, we heard evidence about St Ninians in Fife, where a protocol has been established locally between the industry and the community because of the fact that, although the workings of the site are at least 500m away from the houses, the perimeter of the site and the roads within it are closer than that. When the Scottish Executive was developing its views on the separation distances, were both those examples taken into account?
I do not think that we were aware of the St Ninians example, but we were aware of what was happening in East Ayrshire. We believe that we need to take a cautious approach, because roads that are within 500m of the houses could generate dust and particulates.
The representative of the National Union of Mineworkers whom we spoke to last week argued strongly against what community groups had been saying on that point. The NUM is trying to ensure that the industry is safe for its members to work in. You seem to be suggesting that it is not safe to work that close to the sites.
I imagine that the working conditions of the NUM members will be controlled by health and safety legislation. Safeguards should be in place to deal with any contraventions of that legislation.
The question of flexibility relates to the benefits that could be brought to the producer and the developer. It would be unfortunate if what had been signed up to by everyone was so rigid that it prevented flexibility. However, it is also fair to say that people's views are influenced strongly by their experience of opencast mining in the past.
I would like to ask about the definition of a community. Draft SPP 16 proposes that
Someone did not listen to my earlier warning about switching phones off. I also remind members who are visiting the committee that, if they wish to conduct conversations, they should do so outwith the committee room so that the minister can hear committee members' questions.
We also heard from the Douglas valley residents, who said that the definition should include any land on which there is accommodation. Do you have any comments on the views of the community groups?
The feeling was that the local authority level was the most appropriate level for the decision to be taken about whether a group of houses constituted a community. Communities are scattered and organised in different ways across Scotland. Local authorities are the organisations that are best placed to make such decisions. It might be that, in certain circumstances, a group of fewer than 10 houses or even a single dwelling would be defined as a community that could be impacted on by a development. That possibility is not excluded.
What impact do you think that the change in the definition from one in which a community is made up of 10 or more houses to one that states that a community need simply be a "small group of houses" will have?
As I have said, the expectation is that operators and planning authorities will ensure that there are no significant adverse effects on individual dwellings, clusters of dwellings or sensitive establishments outwith defined communities. We are trying to be more inclusive and recognise the fact that patterns of dwellings vary considerably across Scotland. The proposal is meant to ensure that those living outwith communities are not subjected to unacceptable impacts.
Do you feel that local authorities are best placed to take into account community groups' concerns and to make their decisions on that basis, no matter whether we are talking about one, 10 or 100 houses?
Yes, and they are also locally accountable.
I think that all my questions on that matter have been answered.
No, Cathie—we have moved on to questions about supporting information.
Okay. I did not realise that we had got that far.
How time flies.
I know.
I am sure that it is not flying for the minister, and there is still some way to go.
I asked earlier about information that applicants might have to provide before the formal planning process begins. Could the section on supporting information from operators to planning authorities be improved to ensure that more information was available to communities?
People are keen that, in the interests of transparency, as much relevant information as possible is available with regard to any application.
In its evidence, FOES stated that applicants should be required to divulge all information and interests in all coal reserves in an area, and it suggested that penalties be imposed for non-compliance or inaccurate disclosure of information. In the past, applicants have changed their names on applications or have encouraged other operators to apply. What is your response to those concerns?
We are trying to ensure that developers genuinely engage with the process. Surely the greatest encouragement would be to make such engagement and the establishment of community benefit part of the process of securing planning permission. Simply to say that such engagement will take place does not make it so, and we have underpinned that approach with a commitment on certainty.
I believe that you were, as the committee was, impressed by East Ayrshire Council's performance. Could the Executive encourage other councils to adopt or learn from that local authority's practices? In its subject plan, East Ayrshire Council said that it had more trouble with sand or gravel extraction businesses than with coal extraction businesses. Does your guidance to councils cover all extractive activities?
On your first question, I believe that good practice should always be shared. I do not have the feeling that other local authorities do not want to learn from East Ayrshire Council's good practice. We have already indicated that good practice by individual developments in other places should also be considered—I certainly want to encourage that approach. I do not know whether such matters concentrate people's minds, but they might take note of the fact that the council has won a very prestigious award in this regard.
We will shortly publish draft SPP 4 on mineral working, which will apply to mineral workings other than opencast coal mines. As Donald Gorrie said, many of the issues are similar. We will certainly address the relationship between mineral working and the community interest as part of that forthcoming policy, which will go out for consultation, as was the case with opencast coal mining.
Places such as Greengairs have had a lot of trouble with landfill activities. Will your study cover that as well as extraction?
No. There is a separate Scottish planning policy on waste disposal. In planning terms, landfill is significant.
I have a question on health and the impact of opencast mining on communities. I refer to the report that was produced by reporters to the Transport and the Environment Committee in 2002. I will quote a bit about research and evidence from the Committee on the Medical Effects of Air Pollutants. Its report states:
Research on the health effects of opencast mining was published in 1999 and was endorsed by COMEAP. The then Minister for Health and Community Care confirmed subsequently that, given the COMEAP research, there were no strong indications that further research on the impact of opencast mining on public health should be regarded as a priority.
That does not answer the particular point that a comparative lack of research was conducted specifically in Scotland. It is my understanding that the boundary bunds, which are often closer to communities than are the mining operation itself, can be far more dangerous to health. Has any specific research been done in Scotland on that since the Transport and the Environment Committee's report was published?
I spoke to our Health Department colleagues last week, who identified research that is being carried out. The University of Strathclyde, the Institute of Occupational Medicine and the London school of hygiene and tropical medicine are all doing research on particulates. The American study that people keep talking about is reviewed periodically and COMEAP is working on a report on the effects of air pollution. Our health colleagues are keeping an eye on those studies.
Is the first lot of research to which you referred—the new research—being done on Scotland specifically?
Most of the research is being done in Scotland. It is funded by the Health Department.
When will it be reported?
I am not sure about the exact reporting dates, but we can let you have that information.
Thank you.
I have a question about environmental impact assessments. There is a perception that they are always weighted in favour of the developer. For example, Dr John Munro from SOOT stated:
Is the question about environmental statements in particular?
Yes. I refer to the environmental impact assessments that are commissioned at the start of the planning process.
The Executive has commissioned research to examine the implementation of environmental impact assessment regulations. The research will consider how environmental impact assessments work in practice and the extent to which they are delivering on environmental issues. Considerations in respect of the general quality of environmental statements will be taken into account. The issues to which Linda Fabiani referred may be explored further in that research.
I think that Dr Munro's proposal was more specific. Whether or not the perception is valid, environmental impact assessments that are carried out by the developer are perceived to be not quite neutral. The problem and people's concerns might be alleviated if we had an independent panel of assessors to be used at the very beginning of the planning process. Developers such as Scottish Coal seem to be quite happy to go down the route of funding independent assessment. Might that be a way to alleviate concerns?
Those matters can perhaps be explored further, but the process already includes statutory consultation of environmental bodies, such as the Scottish Environment Protection Agency and Scottish Natural Heritage, and of the public. It is for the planning authority to evaluate the environmental statement. In doing so, it must take into account advice from consultees and it must confirm the statement's validity. If a planning authority believes that a statement is deficient in any respect, it can require further environmental information to be submitted by the applicant. That might address some of the concerns that Linda Fabiani has mentioned.
I did not suggest that planning authorities do not take their responsibilities seriously, but we are aware that planning authorities are sometimes under-resourced. A panel of independent assessors might benefit the planning authority, the developer and—most of all—communities.
We will certainly consider the issue in the context of our broader consideration of planning policy.
I have a couple more general questions on planning and energy strategies. How does SPP 16 fit into the wider process of the Executive's planning strategy and the forthcoming white paper on planning, in particular with regard to community involvement?
Obviously, we are still developing our planning proposals. As members will know, we want to modernise and speed up the planning process and to encourage further community engagement in it. We also want to address the concerns that have caused the build-up of distrust. Social inclusion and awareness of the impact of developments will also be embedded in our planning proposals. In their final form, the proposals will go with the grain of SPP 16. There will be recognition of the constant need to strike a balance within the planning process.
On planning for the energy industry of the future, does the Executive intend to integrate the policy on opencast mining with its other energy policies, such as its policy on wind farms?
It is obviously a good idea to have integration and harmony where possible, but one policy is not consequent upon the other. We need to develop planning policies across the range of issues that people need to have planning policies for. As was mentioned already, modern technology continues to develop apace and the planning process needs to keep up with that. We would not expect anything other than harmony between, and logical consequences arising from, policies.
As the minister might expect, my final question is on co-ordination of planning policies with electricity generation and energy needs. You are probably aware that there is quite a lot of ageing generating plant in Scotland, which will have to be replaced if we are to retain secure supplies and valuable jobs in East Lothian—my constituency—and many other parts of Scotland. Will the minister acknowledge the importance of the electricity generation industry for the environment and the economy in Scotland? Will she bear that in mind as she frames planning policies that will cover everything from opencast mining to wind generation?
There are broader views on such matters, which will be determined by ministers other than the minister who has responsibility for planning, and which relate not just to energy policy in general at United Kingdom level but to energy supply. I do not want to stray far into such areas, but I am keen to ensure that our planning process does not inhibit policy development. It is logical that the planning process should underpin, rather than work counter to, the policy view that the Executive takes on a matter.
A number of members of the Scottish Parliament who are not members of the Communities Committee have joined us, but I am conscious that the minister has been answering questions for more than an hour and a half. I will allow each visiting member to ask one short question. Please reflect on what you have heard and ask questions that will generate additional value rather than revisit areas of questioning that have been pursued by committee members, who listened to the evidence that was given at last week's meeting.
I, too, had the benefit of hearing last week's evidence, which the minister said she read. At that meeting, Mr McLaren from Friends of the Earth Scotland made a point that I do not think has been picked up today. He suggested that a benefit of the proposed new policy is that it would weed out some applications and ensure that new applications from the industry are substantive. Communities are concerned not just by development but by the potential for development, and myriad applications generate concern in communities, which leads to the distrust to which the minister referred. Do you agree with Mr McLaren that the policy that SPP 16 sets out would weed out applications that were less certain, if not spurious, and ensure that new applications were substantive and in accordance with best practice?
I looked at the evidence, but I did not memorise it, so I will not create a hostage to fortune by agreeing with a comment that I do not have in front of me. However, I acknowledge that it is important for communities that there is certainty and, as I said, that the planning and development process can be engaged in seriously. We expect proposals to be serious and credible. We have also said that over time the industry has considered its reputation and the benefits of working with communities, which has concentrated minds. The proposed new guidelines will assist in that.
The work of the Transport and the Environment Committee in the first session of Parliament in respect of petitions that related to opencast mining was mentioned. I was one of that committee's reporters on the matter, so I am pleased that the draft guidelines address many of the concerns that were expressed then.
We have already covered many of the health issues, but I repeat that we will always ensure that planning guidance reflects the views of health experts. That is particular to this area, but it is also more generally related to research into airborne particles.
I appreciate that Mr Ingram sat through the committee diligently this morning, but when you left the room very briefly, your colleague Christine Grahame pursued the issues that you have raised. You might find it helpful to refer to the Official Report, in which you will find extensive responses to some of the questions that were asked by Christine Grahame.
Before I put my question, I ask the minister for clarification of one of her opening remarks. I think that I picked you up right when you said that since NPPG 16 came into force, output and employment levels have remained essentially the same. Is that correct?
Yes.
I am very interested in that because the figures that I have from the Coal Authority suggest the opposite. The Coal Authority indicates that the number of employees has fallen from more than 2,500 to fewer than 500 and that output has fallen from 9 million tonnes to 1 million tonnes. Were you referring only to Scottish figures?
Yes.
That is the clarification that I required, thank you.
That question goes back to some of what was said earlier. First, the fear around the employment issue is drawn from what is perceived to be the experience in England, where there has been a decline in the industry. However, it does not logically follow and the case has not been made that the presumption against opencast mining has led to that decline; other factors, including geography and so on, have made a difference. There is also a suggestion that the tests are not being applied in the same way in every case.
I, too, have a constituency interest in the matter, given the large number of opencast mining sites in my constituency and the large number of men who are employed in the industry. My first question concerns separation distances. You said that you may be willing to look again at landscaping. I would like some clarification of what landscaping would include, because I am anxious to ensure that it does not include large overburden mounds. Your definition of landscaping and the industry's definition of landscaping might be very different. A large overburden mound on a community's doorstep can have a huge impact, and I would caution against that.
Yes.
Thank you.
On the issue of when landscaping is not landscaping, it is not landscaping when it is not something that people want. If it is trees and nice wee bits of whatever it is—I do not know what it would be—that is entirely logical. We do not put in a 500m buffer in order for people to carry out working by other names or to do the very things that people were unhappy with in relation to opencasting. That is something that can easily be clarified and it would be clarified quickly if there were a proposal to move from the 500m limit. If, in negotiating with the local community, the operator said that the landscaping involved what you have described, I think that people would give a short answer.
Communities that have to face the burden of opencast sometimes feel that they are fobbed off with trees. It is the easiest thing in the world for a developer to plant some trees, but there is more to environmental improvements to the local community than simply planting a few trees. There is also the issue of maintaining those trees and hedgerows, and proper consideration must be given to the environmental impact of any landscaping that a developer might undertake.
The key thing would be for developers to undertake the landscaping in consultation with the community. If developers are moving from the 500m separation distance, they would be expected to consult, so the issues that you raise could be addressed.
What you have said on the record about separation distances has been helpful. I suspect, however, that those words will not be read when the proposal becomes not draft guidance but guidance. Would you be prepared to insert in paragraph 11 of SPP 16 wording to the effect that, as you have said, the norm would be 500m and that only in exceptional circumstances would that be varied? Those are the words that you used and you will be able to read them in the Official Report. That wording would give far more strength to communities and to planners in knowing where they were than the current proposals would. Are you prepared to do that?
I will certainly take advice on how my words would fit in with planning language.
They were lovely words, minister.
However, it seems to me that the sense of what I said is the policy position. I shall take advice on that, but I do not think that there should be a difficulty. I am sure that those words will be quoted somewhere in future.
With that, minister, I thank you very much for attending the committee and for giving us time to question you on the draft planning guidance on opencast coal.
I am aware that this is not something that the committee can change, but there are a few points that I think are worth emphasising. First, there is a general concern that I picked up this week and last week. If the current enforcement procedures are not being properly utilised and are not working, will the new guidance really make a difference so that enforcement is properly carried out? That seems to be one of the main issues for communities.
Taking evidence has been an extremely useful exercise and I hope that we will be able to discuss planning guidelines in future. As we have taken evidence, it has become clear that some of the naming and shaming by communities has led to better practice and better consideration of community interests. For example, CoalPro acknowledged that its consultation had not been as good as it should have been. That has been positive.
Like Mary Scanlon, I think that the evidence taking has been a useful exercise, as it has brought clarity. As evidence was led last week and again this morning, those who perhaps thought themselves to be on opposite sides of the argument have found a lot of agreement about the issues and the best way forward.
The evidence that we have taken shows that there is a need to involve communities and ensure that they feel that they have a say in the planning issues that affect their towns and villages. In her evidence to the committee, Ann Coleman from Greengairs said that, although she accepts that her community is surrounded by coal, that does not mean that the community's environment and quality of life should be adversely affected by the actions of rogue coal extractors.
Having represented a coalfield constituency when there was a presumption in favour of opencasting, I emphasise strongly that that presumption was a serious mistake and a very bad principle. As has emerged during the committee's deliberations, the opencast industry can have a future, provided that lessons have been learned. However, I still think that the Executive got it right in 1999 with the introduction of a presumption against opencast developments. The presumption in favour was wrong and made it far too easy for opencast operators to put local communities under siege by coming back again and again with fresh applications. There were too many examples of bad practice.
We must learn from East Ayrshire Council and the St Ninians project. There should be more use of neutral experts, who can in the first place support communities that have a great problem with dealing with planning applications. The employment of outside experts should be funded by developers. At St Ninians, the mining is monitored by a neutral expert, who has the power to close down operations until something is put right. Neutral experts who are paid for by the developer but employed by the council would be helpful.
The process of taking evidence on the matter has been helpful. There has been considerable debate and contention around the issue and the evidence taking has allowed the committee to consider the Executive's proposals. Like other members, I think that the Executive's proposal to introduce a presumption against opencast developments, while being policy neutral, is absolutely right, because it offers communities the reassurance that they need that they will be on a level playing field with developers. The signal that communities and developers have equal rights in planning matters is vital.
Meeting suspended until 11:52 and thereafter continued in private until 12:04.
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