Official Report 333KB pdf
I open the Communities Committee's first meeting in 2006 and remind everyone present that mobile phones should be turned off.
Thank you for the opportunity to give evidence to the committee.
I would like to ask a few questions about the national planning framework. What criteria will be used when defining a national development?
I am not sure how familiar you are with the current national planning framework. The current framework, which was introduced almost two years ago, sets out a long-term spatial development strategy for Scotland. It was one of the outcomes of the "Review of Strategic Planning", which I mentioned to the convener. The initiative was given a warm welcome across the board, but there was a feeling that the next national planning framework had to go further and identify priorities for development that would support the strategy. That call came not least from the Finance Committee's cross-cutting review of expenditure.
Basically, are we talking about motorways, airports and nuclear power stations? What else would you add to the list?
Ministers have made clear the position on nuclear power. Essentially, we are looking at issues such as transport, major public infrastructure, waste, water and drainage.
That is very helpful.
When we drew up the first national planning framework, which did not have a statutory basis—we are now proposing that the framework should have a statutory basis—there was a lot of uncertainty about what the framework was. We approached the issue by having a first round of seminars in different parts of Scotland. The process was not limited to the central belt. We held one seminar in Stirling, to capture the central Scotland dimension, but we also held seminars in the Borders, in Ayrshire, to capture issues in the south-west, in Inverurie and Aberdeen, to capture issues in the north-east, and in Inverness, to capture issues in the Highlands and Islands. In that series of regional seminars, we talked about what the national planning framework might be. We then had a second round of seminars, to feed back to colleagues what we thought would go into a national planning framework. We would like to continue with that approach, but we need to build on it. As you rightly pointed out, there will be national developments. We do not see the framework purely as a land-use planning document, so it is important that, as well as holding regional and thematic seminars with business, environmental groups, local authorities and others, we have the opportunity to engage much more locally, if there are specific developments that will impact on particular areas.
It is helpful to know that the consultation will be more extensive in future. You said that the national planning framework should be a statutory document. Will flexibility be retained in case a major development is necessary, or will flexibility be reduced because the framework is cast in stone?
There are two elements to that. First, the intention is that if a development is identified as a national development in the national planning framework, the principle or need for it has been established by the Executive, following scrutiny by the Parliament. Therefore, any inquiry would focus on the environmental impact, the siting and the design. It will not be for the national planning framework to identify precise locations; that will remain for the local authorities to do.
The framework is determined by the consultation period. The lifespan of the national planning framework could be up to 10 years.
The intention in the national planning framework is to look forward 20 years, because often the timescale for delivery of major projects is extensive. There are also powers in the bill to review the national planning framework.
I turn to parliamentary scrutiny, about which I have never been totally clear. What is the reasoning behind the allocation of 40 days of parliamentary scrutiny? What is meant by the phrase
The concept of the 40 days came from considering the ways in which statutory instruments are laid before Parliament. I do not think that it is necessarily the Executive's role to prescribe the procedures that Parliament will adopt in considering the framework. We expect that, once the national planning framework is laid before Parliament, Parliament will consider it in whatever way it wishes to do so and will prepare a report or resolution containing comments on the framework or suggestions for ways in which it might be improved. That information will be transmitted to Scottish ministers at the end of the 40-day period in whatever form the Parliament considers appropriate, and Scottish ministers will have to consider it. When they lay the final version of the national planning framework, they will have to be clear about how they have taken into account the Parliament's comments and explain whether they have accepted them and why.
Will the way in which the Parliament considers the national planning framework be delegated to the Parliament? In other words, will the Parliament decide how that should be done, such as through a debate in Parliament or through the committees?
The bill makes no extra provision for any particular procedure other than that the framework be laid before Parliament.
Therefore, the Minister for Parliamentary Business or the Presiding Officer would determine how the Parliament would consider the framework.
I presume so.
Parliament will clearly have the right to decide its own processes and procedures in that regard, and the bill must allow sufficient time for that. Can you confirm whether my reading of the bill is correct, in that the 40-day period for consideration does not refer to 40 sitting days, and that it could include a recess?
I am not sure that that is right.
The wording to which I refer reads:
Yes. The bill says:
In which case—
That time does not count towards the 40 days.
That is what it means.
So the 40 days can include recess.
No.
It cannot include recess. Okay.
The provision was the subject of discussion between the office of the Minister for Parliamentary Business and the parliamentary authorities. The period that has been specified is similar to the period that applies to the affirmative procedure for orders. The matter was considered taking that into account.
The committee will perhaps need to discuss whether we feel that that period is substantial enough.
Yes, we considered that. The examples that people have raised with us include the regional spatial strategies for some of the English regions, the greater London strategy and the Northern Ireland regional development strategy. We thought about those options. The national planning framework for Scotland will be a different document, however, and it will not allocate land for housing. We are not saying, for instance, that development should take place to the south or east of Glasgow, or that it should take place in Haddington instead of North Berwick. The framework for Scotland will not be that sort of document; it will articulate a strategy to be taken into account by local authorities in their strategic and local development plans, and will outline priorities for infrastructure investment to support that strategy.
On the final part of the process, I think that we will probably want to ask about the possibility of holding an examination in public. The Northern Ireland and London spatial strategies are subject to such a process, following which the mayor will sign off the London spatial strategy and the Northern Ireland Assembly will vote to approve the strategy for Northern Ireland. The Scottish Executive is not the mayor of Scotland; here, devolution is to the Parliament. Was consideration given to the question whether the framework should be formally signed off by the Parliament, rather than by Scottish ministers?
We considered a number of options, but we wanted to do something that related to the specific circumstances of Scotland. In Northern Ireland, as you might be aware, local authorities do not have any planning powers. Those powers are exercised by central Government, at both the strategic and local levels, including decisions on planning applications. We considered different circumstances in different areas and our conclusion was that this approach was particularly appropriate in Scotland. As you say, it is a matter on which you might like to take further evidence and that you might like to pursue with the Minister for Communities in due course.
I have two supplementaries. In the criteria for the national planning framework, you refer to waste management. Would that include nuclear waste?
No. Ministers have made clear their position that, until issues surrounding the disposal of nuclear waste are resolved, it would not be appropriate for anything to feature in the national planning framework.
But would a nuclear waste management development, in principle, be a national development? If the issues surrounding the disposal of nuclear waste were all resolved, would such a facility be a national development?
Ultimately, it would be for ministers to decide what would go into the national planning framework.
But would nuclear waste disposal go into the framework, if all the issues were resolved?
Ultimately, it would be for ministers to decide what would and what would not go into the national planning framework as a national development.
Right. My second question concerns cross-border issues, such those to do with motorways. How will the national planning framework deal with those?
When you talk about cross-border issues, do you mean the border with England?
Yes.
The term also applies to Ireland, because shipping connections are important.
How will such matters be dealt with?
When we drew up the first national planning framework, we had a number of discussions with the Government offices for the north-east and north-west of England. We want to continue to have such discussions, because there are issues on which there might be a need for a cross-border approach. However, there are probably fewer such issues in Scotland than in Wales. For example, people who live in Wales might use health services in England. That is not the case with people who live in Scotland, although it probably happens a wee bit in the south-west around Dumfries and Carlisle. However, there are issues around transport on the east and west coasts, for example, on which there might be benefits to having shared agendas with regions in England.
Forgive my ignorance, but is a parallel national planning framework being introduced in England?
No, and there are no plans for a similar document in England. As Mary Scanlon and Patrick Harvie mentioned, there are regional spatial strategies south of the border.
So there is a spatial strategy for the north-east and so on.
There is one for the north-east and one for the north-west, for example, but there is nothing for England as a whole. There are documents for Wales, Ireland and Northern Ireland, but they are all subtly different.
I will come back briefly to parliamentary consideration of the framework, because the bill uses terminology that I have not seen before. Mr Barraclough made cross-reference to the affirmative procedure. Is that what we are talking about, de facto? Will the framework be considered as an affirmative instrument?
I do not think that it is exactly analogous to that.
What is it, then?
It is the period that is analogous. Affirmative instruments tend to be the more complicated statutory instruments.
So the framework will be considered under a resolution of the Parliament that will be subject to amendment.
It will be for the Parliament to decide how it wishes to deal with consideration of the framework.
I think that other members will ask most of the questions about part 2 of the bill, which concerns development plans, but I will ask about the sections that refer to sustainable development. We see that planning authorities must exercise their functions
Sustainable development is a broad concept that has its expression in many different forms. The clear expectation is that local authorities, in preparing their development plans, will have regard to the relevant documents on sustainable development—notably the Scottish Executive's sustainable development strategy. We will also prepare further guidance for local authorities, setting out how we expect them to perform that duty in preparing their development plans. Therefore, the broad context will be the sustainable development strategy, beyond which we will give local authorities further guidance on what that will mean in practice when they prepare their development plans.
Does that mean that local authorities will have to carry out their function in a way that is consistent with the strategy?
That is right. The strategy sets out the Executive's view on what sustainable development means for Scotland. It is a prime document to help local authorities to approach the preparation of development plans.
I am sure that some of these issues will come up later today when we debate the strategy in the chamber, but I want to ask about monitoring assessment. Several chapters in the sustainable development strategy acknowledge the role of the planning system. However, we need to be clear about how we will monitor the work that local authorities are doing to find out whether they are making their decisions and carrying out their functions in a way that is consistent with the Executive's approach to sustainable development. How will that monitoring take place?
Principally, that will happen through the preparation of development plans, which will be subject to the appropriate scrutiny. A strategic environmental assessment will also be required for every development plan, which will raise the environmental issues associated with those plans.
So if a local authority carries out its functions in an unsustainable way, the main mechanism open to the Executive would be for it not to back the development plan.
The Executive has different rules for development plans. Perhaps Jim Mackinnon can speak about the approval mechanisms.
The Scottish ministers will continue to approve strategic development plans. That will be very important and will follow an examination in public.
We are all aware of the primary objectives and aims of the bill, which are to modernise the planning system and, importantly, to involve people more. How will people be encouraged to be more involved and how will the consultation and involvement process involve other organisations and interests in the local plans and—I have to get used to the new names—the local development plans?
The key changes include the requirement that is to be placed on strategic development planning authorities and local development planning authorities to draw up a programme that will be known as a development plan scheme, which will indicate the programme for plan preparation in the authority's area. That will have to be updated annually; people should be aware of the programme for plan preparation. A key part of the document will be a consultation statement that will set out the ways in which the planning authorities intend to engage not just with local communities, but with other stakeholders, when drawing up the development plan. That is very important.
What is the timeframe for the consultation and publication of the draft planning advice note?
Normally, we would allow three months for a consultation. I would like to think that the draft planning advice note will be issued in late spring. The document will be adjusted in the light of comments that will be received during consultation. We have already set up a stakeholder group so that we can get informed comment on the note. The document will not be generated just by the Executive—we will work on it with our stakeholders.
Does the stakeholder group involve professionals and members of the public?
Yes—it is not restricted to professional planners. It will include people who represent a range of community and environmental interests.
I understand that when the inquiry reporters unit believes that a local authority has not properly involved the public in preparing a plan, it is to be able to ask that council to revisit the matter. What powers will the unit have when a council does not appear to be involving the public fully in its plans?
Essentially, the power will be for the inquiry reporter to return the plan to the planning authority—which could be a council or a national park authority—and to tell it that it needs to do better. The reporter could point out that the authority said in its consultation statement that it would do something that it has not done. They could also say that the authority will have to go back and do more in the way of engagement before the reporter considers the formal objections to the plan. I expect that that would not simply be a general exhortation to do more in the way of engagement; the reporter would have to be specific about what they expect the authority to do. The plan would not be able to proceed to the inquiry and then to adoption until such time as the reporter was satisfied that the planning authority had taken sufficient steps to engage meaningfully with all stakeholders.
I welcome the bill, but from reading it and hearing what you say, it seems as if the process could be lengthy, and one of the criticisms of the planning system that we have heard from local communities and business communities has been the length of time that it takes. What timeframes will be put in place to speed up the process and ensure that we are not bogged down by different organisations and people re-examining an application?
Do you mean just the inquiry process or development planning in general?
If local people feel that they have not been involved in the process, we have to bring somebody in to examine it. That takes time. Does the Executive intend to put a time limit on the time that local authorities have in which to reach agreement with their local communities?
The starting point is that, for the first time, there will be a statutory duty to keep local plans up to date. That is a hugely significant change.
You rightly point out the requirement for planning authorities to keep local plans under review. That requirement is to be welcomed. Will the same level of public involvement be expected in the review process?
Absolutely. That is the whole purpose of the consultation statement attached to the development plan scheme. The planning authority will be setting out in advance how it intends to approach consultation. There might well be a local plan in an area where there is very little pressure for development, and the update there might be a fairly small-scale affair. Public involvement and engagement might be tailored to suit. Clearly, however, if the intention is to roll forward in a significant way issues relating to land supply, to major regeneration schemes or to controversial proposals surrounding developments that would have a very large environmental impact, our expectation would be for the process of public engagement to be tailored to suit that.
My colleague, Christine Grahame, has a point to make on that.
I have a couple of supplementaries. I want to ask about the planning advice note—there seems to be an awful lot of important stuff in there. When will it appear in draft form for consultation, considering the timetable for the bill?
The intention is that the draft planning advice note should come out late in the spring. I guess that that should be around the time when stage 1 concludes, as I understand the timetable for the bill.
It is useful for the committee to know that. My second point was on what the role will be for other agencies, such as the Scottish Environment Protection Agency, Scottish Water and other utility companies that are involved in the planning process. To put it in colloquial terms, how much clout will those bodies have? We can see the difficulties that arise with housing developments for which Scottish Water might not be able to provide infrastructure.
That is an important point. We have recognised that the planning reform is not just for the planning authorities to deliver. There are key agencies involved, which are critical to making the plans work. We propose that, under the bill, key agencies will be designated on which there will be a duty to co-operate. Christine Grahame mentioned SEPA and Scottish Water which, with Scottish Natural Heritage, are very important in this matter. The key point about development plans is that certainty must be provided for investors and communities. Public trust in planning will be eroded if, despite there being an up-to-date development plan, it is found that the site cannot be serviced, whether because of access or for reasons to do with water and drainage. That could result in planning applications being made for adjacent sites that are not covered in the development plan.
Before the local development plan can be accepted or passed—whatever the language is—will the local authority have to certify, or demonstrate evidentially, that it has consulted and obtained the agreement of those agencies for the plan? I am speaking about verification. How will things be checked?
I do no think that there is specific provision for verification. However, the duty will certainly be placed squarely on key agencies to co-operate on the preparation of the development plan.
I thought that the duty was on the local authority.
The duty will be on the agency.
So, no duty will be imposed on local authorities to ensure that there is consultation and that what is said is taken on board.
It is important to recognise that there will often be mixed messages from the agencies, and that a development site that might make sense with regard to water and drainage could be unsustainable in transport terms because of its remoteness. It might also be quite a difficult site because of the landscape setting or the presence of a green belt. A balancing act is required. Our impression is that—[Interruption.] I am sorry: I have just been passed a note. Would you like to address this point, Michaela?
The planning authority's responsibility lies in its requirement to consult the key agencies that are defined. The key agencies will become statutory consultees. The obligation rests on both sides: it rests on the planning authority to consult, and on the agency to respond, as a statutory consultee.
If the local authority does not discharge that duty—although it does not have to accept the responses that it gets—what happens? How will it be certified that the local authority has consulted the utilities? If it does not consult the statutory agencies, what is the remedy?
Evidence from planning authorities suggests that they consult agencies widely, so it is not that the local authorities have not consulted in the past. The difficulty seems to be that some agencies have not submitted observations.
The agencies have not responded.
No, so there will be a duty on them to co-operate.
In that case, it is a mutual duty, so what will be the remedy if an agency does not respond? There should be remedies if statutory obligations are not met—if the local authority has asked a statutory agency for a response but does not get one.
That would be dealt with at the examination. Ultimately if, for example, Scottish Water is consulted but it does not respond and does not turn up at the examination, the reporter will have to make a decision based on the fact that information has not been received. However, if statutory bodies are obliged to co-operate, the hope is that the change in culture that we want will happen and that our attempts to move the planning system towards dealing with things at the development plan stage will succeed. However, that will require some organisations to change their culture.
That may be a matter to explore. If a duty is not met and there is no remedy, something such as an order should be introduced to require agencies to respond.
Such a situation is unlikely in practice, but Christine Grahame is absolutely right to ask what will happen when bodies do not engage. It is a fair question and we will reflect on it.
Cathie Craigie had more questions on development plans. However, I will ask first about public consultation, which has not been covered. The Executive is working to ensure that best practice is followed throughout Scotland. As well as working on how to engage with communities initially, will you also work on sustaining that engagement? Development plans will have to be updated continually. A local authority may engage effectively with its communities when initially it produces its development plan, but some of the plan may not have been implemented three or four years later, so how will the authority keep the people with whom it initially engaged interested? They might be interested at the beginning of a process, but their interest may have waned slightly 10 or 15 years later.
That is a fair point. There have been concerns that, despite the pressure for greater inclusion and involvement in the planning process, there are signs of consultation fatigue. We are trying to understand better the importance of the development plan. It might exist to change communities or to conserve a townscape or the setting of a community—that is perfectly okay. It will be a very important document. I said that the development plan will be updated annually, but if there is no provision to update the plan in the next year, there will be no engagement with communities. We are trying to slim down the plan, which is important if communities are to be clearer about the changes. A slim document is better than a thick one that people have to wade through in that it will be easier for them to see the key parts that will affect their areas. We need to avoid a scatter-gun approach because some issues may have no general relevance to an area but specific aspects might resonate with a specific community. In that case, there should be a more targeted approach.
The bill will place a duty on local authorities to publish and prepare action plans. That sounds like a reasonable step. What will the plans include? How will they be prepared?
The idea behind the action plan is that we want to get away from the notion that the plan is an end in itself. People sometimes tend to think, "We've got the report out. Phew! Now we can relax." The plan is a means to an end. It takes a long-term view, but short-term actions will also be required to deliver on specific land allocations. Those may come from the private sector, but they might also involve key agencies, such as the trunk road management people in the Scottish Executive, the new Transport Scotland or people who are responsible for water and drainage, which Christine Grahame mentioned. What will happen to make those land allocations a reality?
The bill makes provision for the planning authorities to produce statutory guidance to supplement the local development plan. What is the guidance likely to contain?
Currently, many development plans are very thick and contain lots of detail. The thickness of the document often gets in the way of understanding, so we want to slim down the plans so that they do not contain too much detail. The supplementary guidance might take the format of, for example, a development brief for a site. It might be a development brief for the regeneration of Cumbernauld town centre or it could be an allocation for development or it could be that we will draw up guidance that will influence the way that decisions are taken on planning applications in conservation areas. We are trying to get the plan slimmed down so that there can be more focused guidance and better targeted consultation. That will make the status of the supplementary guidance clear. Michaela Sullivan might want to comment on that.
I think that Jim Mackinnon probably answered the question. The guidance is a way of setting out the detail. For example, as Jim said, there could be a development brief in which it could be stated where landscaped and play areas will be and where the houses and employment land and so on should be within an urban expansion site or other such area. That will let people think more about the detail without including all the detail in the development plan, thereby making it an unwieldy document.
How will the public be involved in that process?
All supplementary guidance that has any status in the planning system is subject to public consultation. It is anticipated that if supplementary guidance is prepared for an urban expansion area, the local residents, the community council and so on would be involved in the preparation of the document and would have an opportunity to comment on it—as would the landowners, the developers and other relevant bodies. Therefore, there would be consensus that the supplementary guidance that is prepared and adopted represents the way that the development should proceed.
When authorities draw up supplementary guidance, they will refer it to Scottish ministers. If Scottish ministers feel that the authorities have not done enough by way of consultation they can say that the authorities cannot adopt it as supplementary guidance. There is a check and balance in the system. Specific provision is made for that in the bill.
Would the guidance be published at the same time as the development plan or some time after it?
The development plan might have an enabling statement saying that supplementary guidance will be prepared. Quite often, guidance will be prepared on a rolling programme as a plan unfolds. If, for example, a development plan takes a 10-year view of housing allocations, the developments may be phased and the development plan might say that, before development X proceeds, supplementary guidance will be prepared. As the first phase of allocations is built out, the planning authority will start to prepare the supplementary guidance. I would not expect all the supplementary guidance pertaining to a particular plan to be available at the starting point, but I would expect the plan to refer to the fact that the guidance will be prepared prior to a development commencing.
You will be aware that some areas have a particular problem with securing land for affordable rented housing. It would be helpful if you could indicate whether, in the provisions for the proposed development plans or the supplementary guidance associated with them, there is scope for local authorities to designate areas of land or sites within areas of land for affordable rented housing or other relevant purposes.
Under planning advice note 74, on affordable housing, which was published in March last year, planning authorities have the right to allocate sites for affordable housing within their development plans. They also have the right to produce statements in their development plans setting out the percentages of sites that should be designated for affordable housing. There are a number of examples of strategies. Fife Council has recently prepared one and is setting out in its draft structure plan the proposed percentages of affordable housing on different sites. There is provision within existing planning legislation for sites to be made available for affordable housing through the development plan process, and we expect that that will continue.
Will that come under the development plans that are proposed in the bill?
It will. As all new development plans are drawn up, local authorities will have the power to allocate land specifically for affordable housing or to designate for affordable housing percentages of sites that they allocate for market housing in their development plans.
I will ask about the determination of boundaries for the strategic development plan area. As I understand it, under proposed new section 5(3) of the principal act, the Scottish ministers can accept the planning authorities' version of the boundaries, modify it or choose other boundaries. In choosing other boundaries, they might accept what we might describe as a minority report. Is that a fair understanding of how the boundaries will be determined?
There are 17 structural plan areas in Scotland at the moment. That will reduce to four areas in which there will be an upper-tier plan, which are essentially the four largest city regions. Through secondary legislation, the authorities that have to participate in those strategic development plans will be identified and designated. They will then work together to determine the boundary of the strategic development plan area. In the Borders, for example, the authorities might collectively feel that they should draw the line at Peebles and Kelso but possibly exclude Hawick, but that is a decision that they would have to come to themselves.
If I read proposed new section 5 correctly, if ministers decide on a boundary that is neither that which the authority has suggested nor the minority proposal, although the proposal of the authority and the minority proposal require a statement to justify the proposed boundaries, there is no requirement for ministers to justify their decision, despite the fact that they might choose a boundary that is completely different from anything that has been submitted. Further, under subsection (5), their determination will be "final and conclusive". The Executive should reflect on the suggestion that if the ministers will be able to choose a boundary that is completely different from the proposals that have been submitted, it would be wise to make a statement of justification a statutory requirement.
I am happy to reflect on the suggestion that ministers should give reasons for their choice of boundary.
Circumstances must have been envisaged in which ministers will simply set aside the plans that the constituent authorities submit. What is the rationale behind the power for ministers to set aside what has been submitted?
The reason relates partly to the point that Christine Grahame made about what would happen if key agencies do not engage. Our expectation is that agreement will be reached, although some peel-off may occur if one authority wants a different part of its area to be included. The power is a what-if or just-in-case provision—that is the basis on which it was drafted. However, I take the point that we should reflect on whether justification should be given for any such decision by ministers.
I have a question on development plans. Will the extensive consultation process apply to mobile phone masts, pylons and wind farms?
Do you mean in relation to development planning?
Yes.
If policies on wind farms or renewable energy developments are to be included in a development plan, the expectation is that people with an interest in them would be involved, which means possible providers of the infrastructure and the local communities where there are proposals that wind farms be installed. Many planning authorities do not at present identify locations for wind farms, although some have moved in that direction. Clackmannanshire Council and Stirling Council recently started to do that and Highland Council is moving in that direction, but many authorities simply identify general criteria that will be applied to the determination of applications for wind farms. Many such applications, and certainly the larger ones, are not determined by the planning authorities—they have a statutory duty to get involved in the process, but the Scottish ministers make the decision. However, if the planning authority objects, there is a statutory duty to hold an inquiry.
Obviously, proposals that fall under section 36 of the Electricity Act 1989 go to the Scottish ministers, but if Highland Council designates areas of land, as it has done, that too can be overruled by the ministers. Do you expect that the designation of land for mobile phone masts, pylons and wind farms, and therefore the consultation process, will be part of the development plans?
I make it clear that the Scottish ministers will have reserve powers in relation to local development plans, so it is unlikely that they will approve formal development plans for Highland Council, which will be master of its domain, as it were. The council may well decide to have location-specific policies on wind farms, although the expectation is that it would not do that for radio or telecommunication masts, as there will be so many of those and the issues are localised. I do not expect to see those matters in local development plans but, certainly for Highland Council, I expect the development plan to identify areas where there is to be a presumption against or in favour of wind farm development.
You are saying that you expect development plans throughout Scotland—this is not just a Highland issue—to show land that is designated as having a presumption in favour of or against wind farms so that local communities can have their say.
That is essentially what the current Scottish planning policy on renewable energy says, but we are moving to review the policy. We intend to issue that in spring. There will be a significant amount of consultation on that because there is pressure on the Executive to provide a locational framework as opposed to a criteria-based policy. I am not yet in a position to say how the review will pan out. It will also be informed by the views of consultees before it is finalised. I include the Communities Committee in the definition of consultees because it is now taking an active interest in many of our Scottish planning policies.
Thank you. That is helpful.
At the moment, where a consent is given for retail development, it will be subject to a retail assessment that considers the impact of the additional floor space, the amount of car parking that will be needed to service the store, and so on. However, unless a planning consent that has been granted in the past specifically excludes the installation of mezzanine flooring, that retail unit can be doubled in size without any recourse to planning. An assessment might have been made that that retail unit or park would have a perfectly acceptable impact on the local area and would have enough parking spaces, but if the entire development is in effect doubled in size, it might well have a completely different impact and not have enough parking spaces. As the planning system has no means of controlling that at the moment, the installation of mezzanine floors is being brought under control, so that an application would have to be submitted in order to install one.
That is helpful.
Yes. It is intended that the extension of planning controls to marine fish farms will replace the requirement for works licences under the Zetland County Council Act 1974.
The bill will overrule the Zetland County Council Act 1974.
It will replace it.
It will repeal it.
Yes.
I would be grateful if you did because people in Orkney feel very strongly about the rights that they had under the ancient Norse regime and they are very well acquainted with all their rights. There would be quite an outcry if you were to take away their rights over their land. Could you get back to the committee on that?
We certainly can. The proposals have been extensively consulted on in all interested areas.
Have landowners in Orkney and Shetland who are affected by udal law been consulted on the proposals?
The proposals have certainly been consulted on in Orkney and Shetland, but I do not know whether the issue of udal law was raised in the consultation. I am happy to come back to the committee on that point.
I would be grateful for that.
On a point of clarification, the schedule to the bill has no mention of the fact that that piece of legislation is to be repealed. Is that just an oversight or is it something that you can clarify?
We would have to clarify how the objective will be achieved technically, but the essence is that there will be one regime relating to marine fish farming. If that means that the licensing arrangements in the Zetland County Council Act 1974 have to be amended, that will have to be looked at. However, one regime will cover the licensing of marine fish farming and bring it all within the planning regime.
It is not in the bill, so it is something that will obviously need to be considered.
Yes.
Given that Orkney and Shetland people feel strongly about their udal rights, if you are taking away those rights and, in effect, taking away their ability to decide what to do on their own land down to the low water mark, will you consider some form of compensation for them?
I, too, am not an expert on udal law. My understanding is that what is proposed is, in effect, a regulation and not a measure that takes away the right to use. There is a difference in law in that context, so it would not be a question of taking away people's udal law rights. I also understand that, in that context, the majority of the marine fish farming regulations will apply beyond the low water limits. We can certainly come back to you on the matter, but I do not think that there is any suggestion that people's udal law rights, such as they may be, are being taken away by the provision.
I appreciate that the fish farms will be beyond the beach—I also appreciate that fish swim in water and not on sand. Nonetheless, the fish have to be landed and they could not be landed on land that belongs to someone else—that is, the person who owns the foreshore. That is the point.
Yes. I appreciate that point, but it is a question of the use of the land rather than of preventing somebody from doing something. It is a question of licensing—it is the same kind of system as for owners of land, who have to have planning permission.
Thank you, but I am sure that we will come back to this one.
I suspect that the main rights that we are encroaching on here are those of the Crown Estate commissioners, which is good news. In the past, we have always been told that for developments on the sea bed and the foreshore, the planning authority was, in effect, the Crown Estate commissioners. Am I right in understanding that we are moving on from that and that the Scottish Executive and local authorities are taking on that authority?
Yes.
That is good news indeed—well done.
I want to ask about the hierarchy of developments. What is the rationale behind the creation of a three-tier system for national, major and local developments?
We have a once-in-a-generation opportunity to reform the planning system, which has evolved over the years—certainly since the late 1940s. There was a feeling that many developments were going through the planning system in an undifferentiated way. We felt that we had to look at developments differently according to their importance and complexity. I have already set out how we intend to deal with national developments in the national planning framework. Below that will be major applications. The figures that we got from local authorities demonstrate that those developments, which are important for Scotland in terms of homes, jobs, schools and investment in environmental and waste management facilities, are taking longer to go through the planning system than they should. There must be a much stronger focus on that. We will have to define in secondary legislation what constitutes a major application. Such applications will be subject to a form of processing agreement that will ensure that the process is not only inclusive but efficient.
I fully understand that, but the devil will be in the detail. I foresee difficulties with determining what falls into each of those categories. Ministers will determine that by regulation, but there will be a tension between local developments and major developments. What is a large-scale development and what is a minor development? How will we tease that out? What do you regard as a major development as opposed to a local development?
Michaela Sullivan will expand on what will constitute a major development.
We intend to set obvious thresholds so that it is clear whether a development is a major development. It is important that there is no grey territory, so there will be cut-off points. A development will fall either above or below the cut-off point and will therefore be deemed either major or local. We have started to do some work on what the thresholds might be. I have a fairly long list of examples, but I will set out some of the major ones.
Will there be flexibility? For example, under the criteria that you outlined, could a development of 298 residential units be determined as a major development if it would have a major impact on the area? One can imagine such developments being proposed. Will the system be flexible rather than absolute? Someone might want a development to be designated as a local development, but it could be argued that it would have a major impact on the surrounding area and should therefore be designated as a major development.
A development may have a major impact on the place that it is in, but that does not make it a major development in terms of the complexity of the planning application. I make it clear that the term does not indicate the impact that the development will have on the area. The distinction is important; a development of five houses in a hamlet of 10 would have a massive impact on that place, but the application would not be a major application in terms of complexity of processing.
Are you sure that the three-tier hierarchy will not result in extended debates on whether an application should fall into one category or the other? Will such a system achieve the aims of the bill without simply creating yet another hurdle?
That will depend on how the criteria are defined. As I said, we are looking to set a bar or hurdle so that the major development category would apply to a retail development of 5,001m2 but not to one of 4,999m2, and that would be the end of the matter. Clearly, by choosing what to put on the site, the applicant will have some leeway about the category that will apply to the application. However, we intend to have a set threshold, which will not be the subject of negotiation.
I should also clarify that, for example, an applicant who wants to make an application for a mixed-use development will be able to seek the views of the planning authority on whether that will be treated as a major application.
My next question seeks to find out the rationale for the provisions regarding the initiation and completion of development. Why will developers be required to inform the planning authority when they begin and when they finish a development?
The provision on initiation is quite important. At the moment, developers have five years in which to begin a development—under the bill, we will take steps to reduce that period from five years to three—so a development to which the planning authority granted permission in 1998 might not have started until 2003-04. Sending out a message to developers that they must tell the planning authority when development has started will herald—especially for developments that are particularly sensitive or complex—the start of a much more proactive approach to enforcement. For authorities that cover large areas in the Highlands, the Borders and the south-west, the notification that the development has started will be the trigger for the planning authority to go out and monitor much more effectively what is happening.
That is excellent. I think that everyone would concur with your final comments.
All applications evolve over time, because we have public consultation procedures and so on. The application to which consent is given is rarely the original drawing that was submitted, because a consultation takes place, the statutory consultees and local people have their say and the application is changed in response to that. However, in the past there have been concerns about the fact that an application may evolve to the point where it is fundamentally different from the original application. The provision gives the planning authority the opportunity to say that an application has gone beyond the substance of the original application, that it no longer accepts the variations and that there must be a new application, triggering pre-application consultations, neighbour notification and so on. The provision is intended to deal with situations in which, over time, an application evolves to the point at which it no longer relates to what was originally applied for.
Why is it felt that local authorities require additional powers to request that applications be submitted retrospectively? Where are the deficiencies in the current system?
Are you referring to situations in which an unauthorised development has taken place?
Yes. Where are the deficiencies in the current system that the proposed retrospective applications will remedy?
One provision allows for the charging of an increased fee for a retrospective application, to reflect the fact that if a retrospective application is made to a planning authority, that authority will have to confirm that there has been an unauthorised development and so on. At the moment, the same fee is charged for retrospective applications and other applications.
That is what I was getting at. The intention is to ensure that applications are produced timeously and that they conform to what is expected. We do not want developers to start work, to change the design and to expect to have a retrospective application approved. Everything should be above board in the first place.
That is right.
My final question relates to applications for planning permission and certain consents. I understand that Scottish ministers will have the power to prescribe what application form is used, to ensure consistency throughout Scotland. Is variation between the different planning authorities in Scotland a problem at the moment? Is the provision an attempt to ensure that there is continuity and standardisation?
Questions about septic tanks are not necessarily appropriate in the centre of Glasgow and Edinburgh, so there is some variation at the moment. We have done some work on the issue, because it is related to what we are trying to achieve in e-planning. We want people to be able to draw down a standard application form and to submit it to any planning authority in Scotland. We need to ensure that there is consistency of approach, instead of there being 34 different forms. The aim of the provision is to reduce the amount of diversity, but it is also an important element of rolling out e-planning in Scotland.
I return to section 7 and the variation of planning applications. I listened carefully to what you said on that issue. I am part of a community that has gone through a planning application process that resulted in the application being approved, regardless of whether I agreed with that. Under proposed new sections 32A and 32B, applications can be varied if either the planning authority or Scottish ministers—the same provisions apply to both—decides that there is no "substantial change". Was consideration given to the possibility of allowing communities to challenge the term "substantial change"? The planning authority alone can decide whether there is substantial change, but the community may say, "Wait a wee minute; we do not agree with this at all. We consider this a substantial change." Was consideration given to the possibility of allowing the community further consultation or—dare I say it?—an appeal procedure in such circumstances?
That is certainly something that we are happy to reflect on. I take the point. One of the drivers behind the process is communities feeling that applications have been significantly changed without their being aware of it. As I say, we are happy to look at that.
It seems to fly in the face of the thrust of the bill, which is that there should be proper consultation and that heed should be taken very early on of communities' opinions. I suspect that some communities may feel sabotaged and may ask themselves what the point of the consultation was. They may feel that a decision has been made regardless of what they want and that they have no right to be consulted on changes or asked whether they consider them to be substantial.
I am happy to reflect on that.
Thank you.
I am conscious that you have been giving evidence for more than an hour and a half. Therefore, because we have many more questions to ask you, I am sure that you will be delighted to learn that we will have a short comfort break of 10 minutes.
Meeting suspended.
On resuming—
I reconvene the meeting. Cathie Craigie has more questions.
I wonder whether we could all have some of what Mr Mackinnon is drinking. It looks very interesting.
Interesting is a good way to describe it. My description would not be more positive.
I would like some information about the neighbour notification proposals. There is a major change in responsibility from the developer to the local authority. How will the change improve the system and public involvement in the process?
First, there are two aspects to neighbour notification. One is the requirement placed on planning authorities to notify owners and neighbours of significant proposals in the development plan so that they get early warning of what is happening in their area. The second aspect is that neighbour notification is at present, as you say, the responsibility of the applicant and there have been concerns that applicants have not been sufficiently rigorous in fulfilling their responsibility. There is more trust and confidence in local authorities.
Professional planners have expressed to me concerns about the resource implications of the additional workload that they see being introduced by the bill. How will local authorities cope with that? From discussions that I have had, it seems that professional planners are a decreasing species. How will you resource the new system?
The work that we have carried out suggests that the additional cost to an authority of carrying out neighbour notification will vary between £50 and £93 per application. It is quite difficult to generalise because, in a tenemental area in a city, there might be an awful lot of people to notify, whereas, in a remote rural area, it might be relatively few people. The cost might also vary with different kinds of applications. If an authority is carrying out neighbour notification for the environmental improvement of an old railway line, it might have a long area next to tenemental property and there would be many people to notify. It is difficult to generalise.
That is fine, thank you.
There will be a 12-week period between an applicant notifying the planning authority that they have an application that falls within a certain category—either major applications, developments that are significantly contrary to the development plan, environmental assessment cases or significant bad-neighbour developments—and submitting the application. In that period, the applicant will have to engage not only with local communities but, I suspect, with key stakeholders. Because things that they want to do might impact on the interests of, for instance, the Scottish Environment Protection Agency, Scottish Natural Heritage or Scottish Water, a range of stakeholders will have to be involved in the discussion. When the applicant is minded to submit the application, they will be expected to produce a report that demonstrates how they have approached pre-application consultation and what they have done to amend their proposals in the light of the consultation. If the planning authority does not feel that the applicant has done enough, it can return the report for more information.
We have experience of pre-application consultation on telecommunications installations—and we can make judgments only on the basis of experience. My experience and that of communities is that, although the communities involve themselves in the pre-application consultations, suggestions that they make about how an application could be improved—by resiting a mast, for example—are not fully considered and are knocked down with a technical argument that the community does not have the expertise to challenge. Perhaps the technical argument is framed in such a way that it bamboozles the people in the hope that they will go away. The public then thinks that the pre-application consultation was unsuccessful in involving their opinions. Why should this be different?
The key difference is that we are putting this process on a statutory basis, through secondary legislation if appropriate, but also through guidance and advice that will demonstrate what is required in a pre-application consultation. The planning authority will have the ability to say, "No, you have not done enough in that area. Go back and do it." At the moment, all that an applicant has to say is, "Here are the documents that I have to submit as part of the planning application." However, there will be a much stronger emphasis, hopefully underpinned by statute, on giving the council the clear authority to say, "Sorry, you have not done enough in that area." An audit trail should demonstrate why some things were taken into account and reflected in the application and why some were not. Some aspects of an application may not be negotiable, often for technical reasons. We are essentially underpinning in statute the pre-application stage as well as the planning authority's ability to put back the application if it feels that consultation has been inadequate.
What types of development might go to pre-determination hearings? The policy memorandum talks about some, but it would be helpful to get a flavour of the kinds of things that the Executive envisages as being the subject of pre-determination hearings.
The starting point was that planning authorities in Scotland had an inconsistent approach to the circumstances under which they offered hearings and how they were conducted. Certain types of application should go to a council hearing. For example, a housing development, which was clearly contrary to the development plan, could be proposed for public open space that is close to a residential area. The housing could be a significant bad-neighbour development in which there may be a lot of noise. That type of development or environmental assessment case could result in sustained local objections.
Clearly, a code of practice would be helpful. You mentioned inconsistent approaches. As I see it, proposed new section 38A of the 1997 act does not require a duty to publish procedures. For example, local authorities can rightly adopt procedures, but if you want consistency, it might be helpful if they had a duty to publish their procedures. That would create an opportunity to compare procedures. One authority may have a particularly unusual or innovative procedure, or an unhelpful procedure could be highlighted. Perhaps you could think about that.
We are happy to examine the wording. You mentioned local authority cases, but ministers have already announced that they intend to apply additional scrutiny to developments when there are concerns about local authorities acting as judge and jury in relation to developments in which they have a financial or other interest.
Yes, but proposed new section 38A(3) will allow local authorities to exclude from a hearing people who wish simply to go and listen to or report what is said, which seems contrary to the spirit of the bill. However, that is something for consideration at stage 2.
That is a helpful comment. We will certainly consider the matter.
Under the delegation scheme, a distinction is made between applications that will go to the local authority's planning committee and applications that will be determined by a planning officer. I do not think that there is necessarily a problem with that. I take it that a planning officer would deal with, for example, an application for an extension to a conservatory or the installation of new windows. However, an issue arises when there is an appeal against the decision. The bill says that the appeal will be decided by elected members of the planning authority. It seems that several councillors will sit and listen to a discussion about whether Mr McGinty's conservatory should be 7ft by 11ft or 6ft by 5ft. Is that what you envisage? Is that not an inappropriate use of resources?
Lynda Towers might want to say more on the European convention on human rights aspects. A number of councils are quite keen on the provision; in fact, the Parliament has been petitioned on the matter by Dundee City Council. There is an issue about whether the Scottish Executive inquiry reporters unit should send people out to make decisions on small-scale applications. Some 30 to 40 per cent of applications are for minor developments such as conservatories and boundary walls.
You are talking about officials rather than councillors.
Absolutely. If an application is significantly contrary to the local plan or is controversial, it is only right and proper for elected members to make the decision on it. If there is an appeal, it will go to the planning division of the Scottish Executive, which will consider whether it should go to the inquiry reporters unit. For appeals on small-scale applications such as those that involve minor changes of use, boundary walls and conservatories, we seek to introduce a review of the planning authority's decision by elected members.
That is, the councillors.
Yes. There should be fewer appeals because the review of permitted development should lead to fewer small-scale developments.
Okay. I take it that the review procedure will be standardised throughout Scotland so that what happens in the Lothians will not differ from what happens in the Borders or the Highlands and Islands, notwithstanding udal law; I look forward to hearing more about that.
Just as there are inquiry procedure rules for appeals, which we will have to update, there will also be rules for the conduct of local appeals tribunals. They will be in secondary legislation.
As distinct from planning advice notes?
Yes.
Fine.
What improvements will the changes to the current appeals system make and what are the intentions behind that? What do you think will be the result of the changes and why are they necessary?
The changes to the appeals system are quite far reaching. Christine Grahame asked me to explain local appeals tribunals. They will mean that small-scale appeals will be determined locally and closer to communities, which is a significant step. We are also reducing the timescale for lodging an appeal from six months to three months, which should reduce the period for uncertainty. Currently, an appeal is lodged with the inquiry reporters unit. We propose that in future an appeal to the centre is lodged with the Executive's planning division. If a planning authority has taken a decision that is entirely in line with an up-to-date development plan, and there are no other material considerations, the appeal would go no further. That is what is called early determination.
Absolutely. As you have just said, you are limiting the introduction of new material at an appeal and restricting the available information to that which was presented to the planning authority in the original planning application, but there will be limited exceptions. Can you give us an example of what those could be?
It again goes back to questions of ECHR rights. It would be convenient to say that appeals would be decided only on the basis of what was in front of the planning authority, but there are instances in which there might be a change—for example, in Government policy or in practical circumstances—that would amount to a material consideration in terms of planning law. To prevent people from being discriminated against and prevent findings by a court that an appeal had not been dealt with appropriately, there must be a catch-all provision that says that, in exceptional circumstances, additional information will be admitted. That will have to mean exceptional. It goes back again to the culture-change aspect. The provision should have the effect of preventing applicants from bringing in, perhaps because it is more convenient to do so, new information at a later stage, rather than their having it, if they could, in front of the planning authority at an earlier stage.
Clearly, a great deal of time has been spent thinking about appeals. Mr Mackinnon mentioned the separate consultation on appeals. Can you tell me how the Executive's thinking reflects the importance of the Aarhus convention and the directive that implements it?
The Aarhus work is proceeding apace. It has been taken account of in the context of the bill, but the issue of planning appeals is being dealt with separately in the context of the existing system. Any developments that arise out of the Aarhus convention will have to be reflected at a later stage. At present, there is no legislation that implements the Aarhus provisions.
Does that mean that legislation might be needed in future, after the bill is enacted?
It might be, depending on how the convention is to be implemented, but no decisions have been taken yet.
Is there an expectation of when the decisions will be taken?
I cannot tell you that, as I would have to check with the Executive division that deals with the convention.
On the general question of appeals, one concern in my community is about the lack of resources that are available for community groups to represent themselves at appeal hearings. Has any thought been given to providing funding for communities in relation to appeal hearings?
I have two points on that. First, we have consulted on modernising the inquiry process. The intention is to make it less adversarial, but no less robust. There is no doubt that people feel disadvantaged when they have to turn up at an inquiry that could last weeks, if not months. The procedures that we hope to introduce should make the process less of a burden on communities. The issue is not just about procedures; it is also about culture and practice. For example, reporters need to take a much stronger grip of the conduct of inquiries.
I do not disagree that communities can make strong arguments and have their cases considered fully but if people have to take time away from work or incur travel costs they are at a clear disadvantage. We need to take account of that.
There are two other aspects that I should have mentioned. The first is the Executive's support for Planning Aid for Scotland—among all the public authorities in Scotland, we are the largest supporter of Planning Aid for Scotland by a long way. That is important. The second is that we have found £2.25 million for the planning development budget over the next two and a bit years to support upskilling. We do not intend that to be directed solely at planning authorities; we are keen to explore funding for mediation projects and for upskilling and resourcing communities.
I am trying to think through the local development plan process. If the stage has been reached where the plan is set and the communities feel that it gives them security, but the planning authority then grants a development that is either contrary to the local development plan or a substantial variation of it, is there any mechanism for people in the community to appeal against that?
The bill makes no provision for that.
Was that matter given consideration during the drafting of the bill?
We had a wide-ranging consultation on community involvement in planning, including on rights of appeal, after which ministers reached their conclusion.
I know that you cannot go into policy issues, but I want to ask a legal question. If a proposal was produced that was prima facie contrary to a development plan, and there was no right to a hearing or appeal, would that not be a possible breach of the ECHR?
That is a legal question, so I ask Lynda Towers to answer it.
There are two aspects to that. First, if the proposal was non-compliant, it would be subject to the general scrutiny provisions anyway. Secondly, on the question whether it would be ECHR compliant not to have an appeal in such circumstances, it should be said that the ECHR is very much a balance of rights, and the view that has been taken so far is that the balance in the bill as drafted is ECHR compliant.
That remains to be seen. Perhaps somebody will challenge it.
You may be right.
It is an interesting line to take. You raised the issue of ECHR compliance, and we know that every bill must be certificated as ECHR compliant.
The essential difference is that, at the moment, outline planning permission can be obtained, which then has provision for the submission of reserved matters. Let us suppose that we are talking about a residential development. Having got outline planning permission for a 300-unit residential development, you can then get the reserved matters, including the siting and design of seven-storey flat blocks, approved without submitting a further planning application and therefore without neighbour notification.
And without any objection procedure, I take it?
That is right.
That sounds like what my history teacher would have called a very good thing. I am happy with that. Thank you for explaining it.
Could you clarify something important? An applicant might say at the outline stage, "I would like a density of 300 houses on this site," but when the proposal reaches the more detailed stage, the number of houses could rise. That rise could be considerable—instead of 350 houses, 420 houses might be proposed. Could a pre-determination hearing deal with such situations?
Planning permission in principle can state in the decision notice the number of units for which consent is given. If the decision notice says 300 units and the developer comes back with a proposal for 420, it would be in the gift of the planning authority to say that a whole new application was required and that that new application would then be considered. There should not be a problem so long as the decision notice states the number of units for which consent is being given. The wording of the decision notice is up to the planning authority, so it needs to be careful that it words the notice appropriately. That would enable it to turn away the kind of detailed proposals that you described and ask for a new application.
That is very helpful.
Christine Grahame.
Me again? I have a starring role today for some reason. It must be the excitement of planning—it is actually quite interesting.
The provisions broadly mirror the current legal provisions in relation to section 75 planning agreements, but there are a number of significant changes. First, the agreements will be on the public register, which they are not at the moment. There is a feeling that such agreements are drawn up and no one knows what happened next. In addition, if a developer feels that they have discharged an obligation they can ask the planning authority to have that obligation removed. If the planning authority does not agree, the developer can appeal. The new system makes provisions for more transparency and for reviewing discharge.
Am I allowed to move on to enforcement?
No.
I have been guillotined.
The bill proposes the introduction of good-neighbour agreements where appropriate. What is the purpose of those agreements and how effective do you believe they will be?
Most current good-neighbour agreements are in the United States. We felt that there was pressure to have such agreements here, particularly in cases in which communities felt that developments that were not managed and monitored carefully would impact seriously on the quality of life in their area. It was felt that, rather than the agreement being concluded between the applicant and the planning authority, the ability to conclude an agreement between the developer and the local community would ensure that the developer was much more aware of its obligations in relation to the community and that the community had an on-going role in the monitoring and management of the development in its area.
Where good-neighbour agreements are appropriate, how will you ensure that they will actually be put in place? I accept that every development will not need or require a good-neighbour agreement, but where the community considers that such an agreement is appropriate, how will you ensure that the developer is obliged to sit down and draw one up? Will the agreements be voluntary or will there be criteria under which they are considered to be mandatory?
If necessary, good-neighbour agreements could be made a condition of planning consent. In such circumstances, the planning authority would require a good-neighbour agreement as a condition of the granting of planning permission. That is an alternative to trying to prescribe everything in detail in legislation. A development that might seem innocuous in general terms could be quite sensitive locally and, in the light of community concerns about a proposal, the planning authority could attach a condition that an agreement would have to be entered into. The provision gives some flexibility.
My concern is that some, although not all, developers make promises when they want a community to go along with a development that it might have reservations about. Developers sometimes promise the earth, but the reality is that, once planning consent is achieved, the commitments on investment, in the form of section 75 agreements or the bonds that are sometimes put in place for the restoration of land in the case of opencast sites, are not always followed through. We need to ensure that proper enforcement is put in place and that the correct incentives exist to ensure the proper implementation of good-neighbour agreements.
We have absolutely common objectives on that. The provisions that we propose should allow that to happen, because the agreements that we are talking about will be not voluntary but legally binding and will be between the community, or representatives of the community, and the developer. Even if control of the project changes hands, the agreement will still be binding on the developer's successor. It will be a legal agreement that will be enforceable through the courts and enforceable against successors in title. The agreements will be registered in the register of sasines, so legal grounds will exist to ensure compliance. Our aspirations and objectives on the matter are the same.
Will the local authorities be responsible for enforcing the agreements?
The good-neighbour agreements will be between communities and developers, if they are a condition of consent. However, there could be separate planning obligation agreements to tie in developers.
I appreciate that the agreements will be between communities and the developers, but who will be responsible for enforcing them? Communities will have the right to go to court but, as they would find it difficult to resource that process, it would be more appropriate for the local authority to be the enforcer.
If specific conditions are put in a planning permission, there is no problem in theory with the local authority taking enforcement action against the developer.
You set great store by the fact that the agreements will form part of planning consents and that they will be in the register of sasines and will be enforceable against successor developers. However, what will happen if a developer goes into liquidation or goes bust?
For sensitive developments, it is now common for planning authorities to take out bonds to guard against that. That happens particularly with opencast coal mining or mineral operations. There have been examples in Scotland of authorities accessing such money to ensure proper restoration of sites.
So the establishment of a bond is the only bankable way of ensuring that obligations are fulfilled in due course.
Yes. Lynda Towers will correct me if I am wrong, but that is very much a private contract.
I, too, have a question on that issue. As I understand it, the limits for bonds are low. I would have concerns about the obligations in contractual agreements between communities and developers or between planning authorities and developers, if the only way in which they could be enforced when breached was by going to the courts, where people often compromise. Developers know that people will not keep paying out money, because they will never get all the expenses back. Is there anything in the planning advice notes and charters about setting higher levels, either in bonds or in secured money of some form, that are proportionate to what the developers are supposed to do and which can be accessed when developers go into liquidation? I do not know what happens to a bond if a company goes into liquidation—I have no idea whether the liquidator gets the money or whether the money is secured. If a real remedy exists, developers will not breach their agreements, because they will know that the enforcement provisions have some clout.
I am not a huge expert on the detailed operation of bonds, but my understanding is that the amount can be as high as the planning authority can agree with the developer.
Is the money secured, though?
As I understand it, yes.
Does it count as a priority debt in a liquidation?
I cannot answer that, but I am aware that councils in Ayrshire and Lanarkshire have regularly taken out bonds to ensure the proper restoration of sensitive opencast coal sites.
Will the enforcement charters and planning advice notes deal with that? A serious issue is that planning authorities need to have a stick, which one hopes they will not need to use. Developers need to know that the planning authority's money is secured and cannot be varied. We need to ensure that developers do not leave roads unfinished and playing fields not built. We know that roads are not completed in developments but authorities sometimes just give up on them.
In drawing up an enforcement charter, planning authorities will need to have regard to guidance and advice from the Executive. We will be happy to consider the issue in that context.
I understand that there will be a right of appeal to the local authority for arbitration if a good-neighbour agreement has not been met. In the event that a new developer acquires the title and the corresponding legal obligation to comply with a good-neighbour agreement, and if it is recognised that the agreement needs to be modified or changed but the two parties cannot reach agreement on how that should be done, will the right of appeal on such matters extend to both the developer and the community? In those circumstances, will both parties have a right of appeal to the local authority and, ultimately, to the Scottish ministers?
My understanding is that only the applicant will have a right of appeal, but I will check that in detail and come back to you.
If that were the case, I would have some serious reservations about that. Those reservations are based on personal experience of how bad developers will wriggle on a hook to evade their obligations to the community that they entered into at the start of the planning process. The Executive needs to reflect on the issue.
I am happy to look into the matter to clarify the position.
Thank you.
It will probably be easier if I deal with temporary stop notices first. At the moment, if a development is causing environmental damage such as pollution or noise, the planning authority is required to allow 28 days for the enforcement notice to take effect. During those 28 days, the potentially damaging operations can continue. By virtue of the new temporary stop notice, the authority will be able to stop things immediately, which means that any damaging operations can be quickly brought to a halt until the enforcement notice and pukka stop notice kick in.
Local authorities often do not necessarily see enforcement as a priority—sometimes they see it as a resource issue. One of my colleagues will touch on the attached financial memorandum, so I do not want to go too far down that road. However, a question arises as to whether a local authority planning department sees enforcement as a people resource or a financial resource, in which case it is a priority.
The white paper and discussion on planning reform made it very clear that there is wide consensus throughout Scotland about the need for more effective enforcement. That is critical. The enforcement charter will require authorities to think about the service that they provide, which they have not been required to do in the past. As you rightly say, the situation is variable.
It may become apparent in a particular area of the country that, on a regular basis, a certain developer is not good at complying with planning consent. The local authority will then have to use its new powers of enforcement. Could that information be made easily accessible so that people know that the developer has a bad track record? Could another local authority take that information into account in considering future planning applications?
It would be difficult for the planning authority to take that information into account in determining planning applications, but a developer's track record may well send out messages about the need to be particularly vigilant in relation to its operations and activity. It is arguable that the matter is related to the start notice.
Perhaps it is early days, but the temporary stop notice seems quite draconian. Just for devilment, I will take the side of the developer. Are we in the territory of criminal law, with a requirement for the evidence to be beyond reasonable doubt rather than on the balance of probabilities? You state that it will be an offence to breach a temporary stop notice. Is a temporary stop notice a civil layer of evidence or a criminal level of evidence?
It is civil.
Suppose that I am a developer and people are complaining about me, saying, "She's got trucks going by and they are stirring up dust in the environment. My children are coughing and my washing is getting dirty." How will the stop notice be drafted and served on me? What is the timescale? What right do I have to challenge the notice, given that the complaints might be vindictive? Who will hear it? The matter is important because, if you get it wrong and my development does not go ahead for four or five days, I will lose a lot of money. I might pay more than £20,000 for a breach but I might suffer a loss of tens of thousands or hundreds of thousands. Contractors might be laid off and so on. How will the system work?
The bill contains some detail on that, but we will produce regulations on the new enforcement provisions.
Will you give me a flavour of how you expect the system to operate? You must have an idea. The measure is important to the community, but it is also important to developers. I am talking not about difficult cases that might arise, but the standard picture that I painted. How will the system operate? Will the notice be served at the site or at the company headquarters?
According to the bill, the notice must be in writing. It must specify the problem and state specifically what the developer must stop doing—vehicle movements at a certain time, blasting or whatever. The temporary stop notice may be served on the person who appears to the authority to be engaged in the activity or on anyone else who has an interest in the land, because sometimes there are subcontractors and the landowner and operator might be different. The bill contains a bit of detail on the matter, but we recognise that we might have to flesh out more detail in guidance, advice and regulations.
I am not being difficult. I just think that we need to know about the practicalities. We need to get an idea of how the notice will work. We do not want councils to be frightened to take action in case they end up in litigation with large claims for compensation.
Yes. Equally, the planning authorities will want some comfort. They will want to know that they are acting appropriately and within the law. In proposed new section 114D of the principal act we have taken steps to deal with compensation so that it will be less of an issue for planning authorities.
I move to part 5 of the bill, which is on trees. I will divide my questions into two parts. First, I note that you are introducing six new provisions on tree preservation orders. Are those provisions likely to make the system more bureaucratic and will they make trees even less of a priority for councils? Will the provisions have resource implications?
The provisions are not intended to make the system more bureaucratic and I do not think that they will do that. The principal changes are in two areas and will improve protection for trees and simplify processes. The provisions to improve protection will extend the scope of orders to protect trees for historical or cultural reasons, as well as their amenity value, and will extend the scope to replacement trees. In well-established woodlands, trees die and other trees grow in their place. Protection will be afforded to such replacement trees. I do not expect those provisions to increase bureaucracy.
The only question that you did not answer was about resources.
I am coming to that. The financial memorandum suggests that the additional provisions will require on average about one full-time trees officer in each authority. For the entire planning system across all authorities, it is estimated that that will cost £2.7 million.
I am sure that we will return to that, but I will move to the second part of my questioning. Will the bill be integrated with and take cognisance of the forestry strategy that I understand is about to be published?
Mary is a star.
Udal law and ancient woodlands—that is me. If there is anything eccentric, that is where I come in.
She said it.
I have read section 26, which refers to trees and woodlands, but it does not seem to take into account the specific and unique category of ancient woodlands. The two gentlemen whom I mentioned brought me ancient maps with designations of ancient woodlands, which are important to our culture and history, especially as more emphasis is to be placed on the designation of historic trees. Proposed new sections 161A(1) and 160(1A) of the 1997 act refer to "trees or woodlands". Does that take into account just a clump of trees, or does it include the unique designation of an ancient woodland, which I am told is as much about what is below the ground as what is above it?
Please do not preserve them.
The provisions relate to preservation orders. I am not sure that there is any scope to apply such orders to high hedges, which in any case is far from what you have suggested.
But does the bill contain any provision with regard to uncontrolled trees and high hedges?
No, not explicitly.
As I am sure you are aware, Scott Barrie has proposed a member's bill on the matter, and has done a considerable amount of work on it.
I do not think that trees and high hedges fall within the bill's definition of development.
So it relates only to the forestry strategy and to ancient woodlands.
As far as ancient woodlands are concerned, the provisions extend the ability to apply tree preservation orders to woodlands of cultural or historical significance.
So that would include areas that are designated as ancient woodland, which is a specific category.
I think that the provisions would allow the specific category of ancient woodland to be included in the general category of woodlands.
You think that they would.
Yes. I expect that the term "woodlands" and the ability to identify woodlands of cultural and historical significance and apply tree preservation orders to them will cover ancient woodlands.
I, too, must defend Scott Barrie on this matter. Mr Barraclough said that the bill does not cover the problem of hedges that are growing out of control. However, its fairly extensive long title could cover anything to do with planning. Moreover, part 5, quite rightly and properly, deals with the issue of trees that need to be managed appropriately and preserved. I think that we are all glad that those provisions have been included in the bill. However, by the same token, would it not be appropriate for the bill to deal with trees or hedges that are causing planning problems? Surely the bill could include fresh legislative provisions to tackle what we all know to be a problem in some parts of Scotland. Obviously, the question is hypothetical, but what I suggest could be done.
We would have to consider the detail of any such provisions and decide whether they fell within the scope of the proposed legislation.
In that case, I ask you to reflect on the matter.
Part 6 deals with correction of errors. In what circumstances would errors be corrected?
We are not talking about rewriting decisions, but we live in a technical age and there have been cases when, for example, lines have fallen out of decision letters. Part 6 is a technical provision that allows us to sort out technical corrections of errors. Purely technical errors are not unknown in a court context.
Proposed new section 241C(1) of the Town and Country Planning (Scotland) Act 1997 says that
Such a situation would not arise because it is clear that a demolition would affect the decision. That would not be a correctable error.
I appreciate that the overall decision could not be affected by the correction, but let us say that we are talking about one part of a decision. Let us say that the overall decision was to allow a particular area to be developed. The correction could be to do with two trees that happened to be particularly prominent, the treatment of which was only one part of the overall decision. If someone cut down the trees, for example, new trees could obviously be planted, but the original trees could not be replaced. The original decision was about the development of a given area and one of its components was permission for an act that related to a particular aspect of the overall plan. I pose my question because such a scenario could create a significant problem for an individual who received a correction notice once they had taken a particular action. They could be left liable.
I am not a lawyer, but my understanding of the provision is that it does not relate to a correction that would change the substance of a decision. Let us say that there was an issue to do with trees and the decision said that the trees had to be removed. There might have been an omission in the decision letter that explained why that was the case. We are not talking about a situation in which it has been admitted that the trees should have been retained, for example. The provision is about allowing corrections to be made to what are essentially errors of reasoning or logic; it is not about changing the substance of a decision. I hope that that is right.
That is exactly what I was trying to say.
Does the substance of the overall decision include all the details? If it does not, people could become liable for what they do.
A decision letter normally takes the form of the evidence. The decision and the recommendations will be based on the nature of the evidence. The decision part of the letter will reflect the weight that has been given to the evidence. That is important.
There is a further safeguard in that all corrections will require the consent of the applicant or the person who is responsible for the development. He or she will have to consent to any correction.
In which section is that provision?
It is in proposed new section 241A.
The very first provision is of relevance here. I was looking for the relevant provision and I have now found it. I was trying to say that proposed new section 241D(4) reflects the fact that
Would it help you, Mr Robson, if we could find some examples in which that has happened and provide the committee with those to show how the provisions would operate in practice?
Yes, that would be helpful.
The circumstance to avoid is one in which somebody, having had one document placed in front of them, has acted in good faith on that document and then is faced with another document that says something different and contradicts the action that they have taken in good faith. It is clear that nobody would wish a circumstance like that to develop, but can we be clear that the bill does not allow that situation to develop? That is all I want to know.
That is certainly not the intention of the provisions. We will establish some examples and determine how we can make that absolutely clear.
Christine Grahame has one brief and final question.
Yes, it is a tiny one. Is there any time limit on when a correction can be made?
There is no time limit.
How does that impact on the appeals procedure? I assume that it does.
The effect is that there is a time limit to the extent that any correction has to be made within the time limit for an appeal, depending on the circumstances. If a correction is made, the appeal period runs again from the date of the correction.
But there is no time limit. A month or a year could pass—
No, any decision would have to be appealed within the time limit, whatever it is—perhaps three months, depending on whether the appeal is to the Scottish ministers or to the Court of Session; that time limit is set separately. A correction would have to be made within those normal appeal time limits.
I am sorry to nibble a bit more at this. You said that a correction would not be made to the substance of the decision, but that the reasons why the decision was made might be omitted in error from the decision notice.
No. If I said that, that was wrong.
Okay. It had concerned me that, if it was otherwise, somebody might change their mind about appealing once they looked at the corrected reasons.
No. Any change that is envisaged under section 27 should not change the outcome of the decision letter in any way.
I will move on to questions about part 7, which concerns assessment. I understand that section 28 inserts four new sections into the principal act and introduces a statutory system for auditing each local authority's performance. Will you give us a bit more detail about why that is appropriate and how you envisage any audit system operating?
As you might be aware, the planning divisions in the Scottish Executive already conduct an administrative form of audit of the planning departments in local authorities. Those audits have been shown to be quite useful in identifying good practice and practice that needs improvement, but there are two main reasons for stepping the audits up to a statutory system.
As currently drafted, the bill will introduce an audit system. What consideration has the Executive given to the way in which the system will operate? Are you minded that the Scottish ministers and the Executive will audit local authorities, or is it more likely that a body will be appointed to do that?
We have looked at the various available options, but we have not yet taken a final decision. The most likely outcome is that auditing will continue to be the responsibility of the Executive's planning divisions. We may decide to set up a dedicated core team that will take responsible for managing the auditing of planning departments. The team would be able to bring in experts from across Scotland.
My final question on assessment relates to ministers' ability to investigate the planning decisions of a planning authority to see whether it has made proper use of its decision-making powers. How do you envisage those powers will work?
We do not envisage those powers being used with any great frequency. There have been cases when communities have expressed concern that an authority's pattern of decision making does not seem to be consistent or compliant with what one might call the spirit of planning legislation, such as when it has consistently taken decisions that have gone against the recommendations of its officers or against the provisions in a development plan.
I assume that the regulations that are described in part 8 will have regard to planning authorities' capacity to cover their actual costs and of the requirement to invest in additional staff and other resources? Is that an appropriate reading of the intent behind the regulations?
The fee regulations are designed to recover the processing costs. The intention of the new regulations is to ensure that the costs and outlays that planning authorities will incur in monitoring the conditions that are attached to planning consents, for example, are covered. Such provision is not available at the moment. The regulations would also ensure that authorities are able to introduce variable or increased fees for retrospective applications.
New grant-making powers are to be found at the end of part 8. As the convener said earlier, there are circumstances in which local groups may wish to avail themselves of the opportunity for grant aid. Is it the Executive's intention to publish some kind of scheme under which the community groups might apply? If not, is it the intention simply to continue the existing practice, which is welcome, to assist Planning Aid for Scotland? Alternatively, would there be an opportunity to extend the parameters of the scheme and then publish something to allow community groups assistance in dealing with complicated or difficult situations?
There are no specific plans for any new scheme; no such scheme is in the pipeline. The powers would enable us to produce one if we so desired. The immediate intention is to ensure that the grant aid funding for Planning Aid for Scotland is on a secure footing.
In paragraph 272 of the financial memorandum, you say that the maximum fee for a development of more than 50 houses could go up from £13,000 to £40,000. You state in paragraph 275:
The discussions that we have held with the development industry have revealed clearly that it does not expect major applications to be determined within two months. It is concerned about the black-hole syndrome, whereby applications disappear into the planning authority and no one knows when they will get a decision.
That was helpful, but I am surprised at the figure £40,000. Do you see the planning fee operating on a pro-rata scale relating to the worth of a development? In other words, if it is to be self-funding, as Euan Robson mentioned, so that planning departments can get more resources from the fees, can you envisage certain situations in which the figure would be considerably more than £40,000?
In building standards, the fee is directly related to the cost of development, and planning officials have certainly looked enviously at that relationship. We are reviewing the scope of what requires planning permission, so we have to reach decisions on the proportion of applications that we think are major and on whether we should make a difference between a major housing development and, for example, a major minerals application. Also, some material will fall out of the system as a result of the review of permitted development. We want to get a better understanding of how things will shape up.
That is helpful.
The final question relates to part 10, which makes numerous minor amendments, particularly to ensure that the language that is used is the same. It also introduces changes to the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997. Can you give the committee some details of what the impact of those changes will be?
There are two principal changes. Section 49(3) is critical, because it widens the Scottish ministers' ability to give grants or loans for applications in any conservation area, rather than just those that have been designated as outstanding. It removes the distinction between outstanding and ordinary conservation areas and allows a wider scope for grant funding in those areas.
I have a question about the format of the bill, which is a major piece of legislation. In effect, it is a new planning act for Scotland, but that is not the way in which you have approached it. We are not repealing the old legislation and putting a new act in its place: we keep referring to a series of amendments to the existing legislation, which will be a bit of a problem for us and a bigger problem for people who have to work within the framework in the future. Is it your intention to produce a consolidated document—a clearly written single document that everyone will be able to read and understand without having to refer backwards and forwards?
In an ideal world I am sure we would. Such a move would clearly have resource implications for the Development Department and for us in Legal and Parliamentary Services. Luckily, there are a number of planning publishers who will produce an up-to-date copy, but no decision has yet been taken about whether there will be a consolidated version.
That is unfortunate. It will be difficult for us, for people who make representations about the bill and for people who have to live within its framework in future if everybody needs copies of two or three different statutes to which they must cross-refer. We will have to do better, will we not?
That is perhaps a question for the minister rather than for his officials.
I may have got this wrong and will probably regret saying it, but I thought that the whole bill was an amendment of a principal bill.
Yes.
No.
That is all it is, so it is not really a case of consolidating statutes. The current bill just amends an act and then becomes redundant, in a sense, because everything it does amends an act. If you just reprint the act with all the amendments in this bill in it, it would be fine. Is that right?
No.
That is the problem with it, though: it is just a great big amendment to an existing piece of legislation.
Perhaps we can pursue that issue with the minister when he comes before the committee.
Meeting suspended.
On resuming—