Official Report 365KB pdf
I reconvene the meeting. It is evident that some members of the committee are incapable of telling the time, but we will get started.
Part 1 deals with the national planning framework. Will the proposals to put the national planning framework on a statutory basis make it a more powerful instrument for securing the delivery of national policies and programmes?
That is a key question. The national planning framework was long awaited. When it was first published in 2004, it was a welcome addition to the land use planning system in Scotland, because it pointed out the need for overall strategic thinking on the Scottish economy in order to pull things together. The intention of the white paper and of the Planning etc (Scotland) Bill is to make the framework stronger and more central to the planning system. That is not only welcome; it is absolutely necessary. We have difficult choices and decisions to make—in all our interests—about how we provide infrastructure and how we control patterns of development. I certainly welcome the framework.
That is very helpful. Given your wide range of experience and research, can you tell us whether there is anything that we can learn from the national planning policies of other countries? Perhaps you have information or advice that might help us deal with the planning bill.
The idea of national planning frameworks is a European process. Right across Europe, a great deal of attention is given to providing large-scale, holistic, strategic frameworks. Some are process based; others are more outcome based. They provide a context for what is happening on the ground and in the relations between town and country and different cities. Following devolution, Wales developed an innovative spatial plan—although you might expect me to say that. Northern Ireland has gone down that road, as has Ireland. I understand that countries such as Iceland are looking at the need to provide an overarching framework document.
Is there any experience of the national planning framework contradicting the local development plan? Is the framework flexible enough? After all, it looks at a 20-year period. Or is it too early to tell from the experience of other countries?
It depends on the constitutional arrangements of a country. As Professor Lloyd said, many countries have gone down the road of developing a national planning framework. We have to take into account the relationship between the different tiers of government and how they operate. One of the requirements of the national planning framework is implementation at the lower tiers of the planning hierarchy. The integration of development plans with decisions on major national developments will be key in that implementation.
That is helpful. I have two questions on the system of developing and approving the next national planning framework. The bill mentions consultation. Is there a need to be more specific about consultation or does the Executive consult widely enough? The committee was told last week that it will be for the Parliament to decide how it will scrutinise the national planning framework, given that the framework will be with the Parliament for 40 days for consideration. I note that
My experience of observing how the planning and development system has worked in Scotland leads me to believe that an incredible range of influences are brought to bear on the policies and thinking on development plans and so on. Developers and housebuilders, investment houses, retailers, environmental groups and communities are not shy in coming forward to make their views known. They articulate their concerns and aspirations.
That is helpful.
I endorse that. Consultation is important, and the Parliament's involvement is essential. The Executive will produce a document and will have responsibility for implementing it. Academically, there are always issues around whether it should be the Parliament's document or the Executive's, and there is an issue generally in development planning about how we ensure ownership of the process. However, the proposal to consult Parliament and to enable Parliament to agree resolutions on the framework and for the Executive to have regard to such resolutions is a minimum requirement for ensuring that the national planning framework has the status and influence that are intended for it.
I agree whole-heartedly, as I am sure the committee will, with the intention of placing planning on a higher pedestal and of exposing the process to some political involvement at the national level. However, one of the most important objectives that everybody shares is trying to rebuild trust in the planning system among the wider public: we will not get early, upfront, active involvement if trust is not rebuilt. Some people feel that the process for the national planning framework is undermining the building of trust.
That is an awkward question. I welcome the greater visibility of the planning system represented by the white paper, "Modernising the Planning Process", and the bill. I welcome the challenge that has been issued, but if the system is going to work, there will have to be a culture change. That sounds like a bit of a cliché, but effecting such a change is a challenge to everybody from members of the public in neighbourhoods and communities, to elected members, political activists, planning officers, local authorities and developers. We have to elevate people's engagement with and understanding of the planning system. That challenge has bedevilled planning practice for a number of years, because, as you said, not many people trust it. The challenge is to find ways in which we can sell the importance of the planning system. Therefore, we must consider the type of society and community that we have. It is not enough simply to say that everyone will understand what planning is about. We have to repackage it and sell it in a much more innovative way.
There is generally an issue about how the planning system is organised and about ownership of the policy at a national, strategic or local level. A key issue is who will be responsible for implementing a national framework or some other level of plan. We need to get the engagement and consultation right at each level. We might take a symmetrical approach and say that what is good for the development plan should be good for the national planning framework. The rationale is that the approach to the development plan should be the same as the approach to the national planning framework.
Are you able to give us any information about how decisions have been made in other jurisdictions? Where there has been a formal public examination, has that process been successful?
Our understanding is that equivalent national planning frameworks tend to be non-statutory, so we are taking a bold and innovative step forward in Scotland.
My question returns to the 40 days for parliamentary scrutiny. You referred to scrutiny by a committee, but I have written down four committees, for a start, that might want a substantial input: this committee, the Enterprise and Culture Committee, the Local Government and Transport Committee and the Environment and Rural Development Committee. It seems to me that, if you are drawing up a document that has a 20-year vision and that impacts on all those areas, 40 days will be insufficient time for the Parliament to give it due regard, although we realise that it can be reviewed. Could you comment on that? I know that Patrick Harvie raised the issue at a previous meeting. We have 40-day scrutiny for less substantial documents than the national planning framework, and we want it to have some security and validity.
That is the characteristic that bedevils planning; it affects everything. It is the form of governance that covers every square inch of Scotland—and indeed, under the Planning etc (Scotland) Bill, goes 12 miles beyond that into territorial waters. Planning affects everything and is influenced by other things, and the Parliament must assert leadership by making one lead committee take control of the matter and robustly take forward the thinking on the national planning framework.
I follow that. Having a lead committee is not a problem, but the question is how the other committees could feed in their views to the lead committee in that timescale. Let us suppose that the Communities Committee was the lead committee. Each of the other committees might appoint a reporter, but that might not be enough. For example, when we are the lead committee on a bill, we find the Finance Committee's comments invaluable, but it needs plenty of time to consider the financial aspects of a bill. In this case, the 40-day timescale is a bit headlong, given how substantially the Planning etc (Scotland) Bill affects other committees. You could pick pretty well any of those other committees to be the lead committee.
I should point out, for clarification, that it will be Parliament that decides the lead committee.
I agree.
I think that our witnesses have explained their position.
I am seeking their views to assist Parliament, because it will be on the record that 40 days is the timescale set out in the bill and that I am expressing concerns that I believe might be reflected by other committees. Others may not share my concerns, but I think that they will, so I am asking the witnesses to put their views on the record, so that when Parliament is considering the matter, or when the Procedures Committee is looking at it, other members will have some guidance.
Do you have anything further to add, gentlemen?
I would like to add briefly to what Greg Lloyd said. He alluded to an issue that runs throughout the modernisation of the planning system: the quest for speed and efficiency to get policies up and running and approved, while ensuring effective inclusion and participation. That thread runs through all levels of planning policy. Getting involvement and consultation right at earlier stages gives scrutiny bodies some assurance that the documents that they are receiving have been subject to wide consultation. If many views have been expressed, all the committees involved would be able to take that into account, but that emphasises effectively front-loading the preparation process. That brings us back to our earlier discussion about how you engage effectively with communities on a document at the level of the national planning framework. One way of trying to square the circle of the 40-day timescale and the need for effective scrutiny is to ensure that when a document comes before parliamentarians there has already been a thorough debate about it in the public domain and that the parliamentarians are familiar with that debate.
So, that means that 40 days is all right, does it?
And 40 nights. [Laughter.]
I am sure that, if MSPs are trying to encourage public involvement in the process, they will put a lot more than 40 days and 40 nights into making themselves aware of what will be included in such an important document.
In the 1990s, I did some research for the former Scottish Office as part of a review of the existing development plan system. As you are aware, it is one thing to put in place a legislative framework, but another to ensure that plans are prepared speedily and kept up to date. The Executive proposes a new type of strategic plan that will be limited to city regions, with local development plans for the whole country. The aim is partly to cut down on the amount of work that is done on preparing strategic plans and, more fundamentally, to put in place plans that may be less comprehensive, ambitious and detailed, but that will be more focused, visionary and concentrated on what matters. That more limited but clearly focused agenda should assist planning authorities in the speedier preparation of plans and in keeping them up to date.
I endorse that entirely. Last year's planning white paper stated clearly that although we have a plan-led system, we need to put in place a plan-led system that works and that is responsive to modern conditions. By distinguishing between strategic and local development plans and by opening up the opportunities for different interests to engage, we are perhaps stepping down the right road.
The plans will have a five-year lifespan and will require resources. Can local government deliver them?
I am probably not the best person to answer that question. The plans will be a statutory requirement, partly to try to change behaviour locally. Clearly, it will be for local authorities to manage the resources that are available to them. There are some issues around the resource implications of all the changes in the bill. As you will be aware, the background documentation to the bill tries to put some figures on that.
One of my colleagues will ask you about that in more detail later.
I do. Previous research that I and others have been involved in has indicated clearly that one of the reasons why plans take a long time to prepare is that they are grappling with a dynamic, changing context—as Greg Lloyd said earlier. There is also an expectation that the plan should anticipate every development eventuality so that there will be a policy in place to deal with it. There is a fear of adopting a document that might have gaps in it. We need to move away from that search for spurious comprehensiveness, which leads to documents of the length and detail that you describe. They are difficult enough for people like me to read, never mind people who are not familiar with planning terminology.
There has to be a behavioural shift in how the plans are prepared. Plans should be much more sensitive to what is happening in different localities. They should be more iterative and evidence based, so that if circumstances change the process is more sensitised, rather than stop-start as it is at the moment. That would be welcome.
You mentioned the need to move at the pace at which business and so on is moving. What role do you envisage for the action programmes that are part of the bill in ensuring that the policies contained within development plans are implemented?
The action plans are an important step forward. Development plans tend to be all things to all people and tend not to focus on where change is expected or, indeed, needed. In many areas, planning authorities, working with developers, know exactly what will be coming up. The action plans allow for attention, resources and energy to be devoted to where that change is expected, to manage it and to ensure that it is delivered; the latter is another theme running through this modern system. I welcome the emphasis on action plans.
They are a key implementation mechanism. There has always been an expectation—even in the current development plans—that the plans would include a statement about proposals, what will happen when and how much they will cost. There has never been any certainty that all the other agencies that the plan relies on to achieve its objectives are signed up to it. My understanding is that the action programme will be a statement of intent not just from the planning authority but from the other key agencies that participate in the process and that commit resources to it. It is crucial in that respect.
We all know about the delays in approving local plans and that we can find ourselves bogged down in objections. The council considers them for months or even years; they go to the Scottish ministers; and it appears to some people that they sit on ministers' desks for a long period. Will increasing the opportunity to involve local people in the preparation of plans help to reduce the likelihood of objections?
There has always been an aspiration in the planning system to produce policies and make decisions that take account of public views. Since the 1960s, the system has included a statutory requirement to involve the public in the preparation of development plans. Behind that is the assumption—which is probably not borne out in practice—that the more you involve people in the process, the more likely they are to be happy with the outcome. That assumption is derived from the report of the Skeffington committee in 1969. In practice, the evidence is that the more you involve people and raise awareness, the more likely it is that there will be people who will look at the document, find something they do not like and complain about it. We should be under no illusion that involving people in the planning process is necessarily a means of avoiding difficulties later on.
It is important for society that we explain what the planning system does for all of us and how it can improve our quality of life. Our sad experience is that, over time, public engagement with planning has deteriorated to the point that it is mainly reactionary and people enter the process with an anti sort of attitude. We must work hard not only to front-load the system, but to be much more positive and to encourage positive engagement with planning. After all, the development plans set out visions for different localities, and we should all be part of that.
Christine Grahame has a specific question on development plans.
I think that I am the next member to ask questions. May I pop it in then?
No, you are not. Patrick Harvie has the next set of questions.
Oh. I want to ask about section 7.
In that case, I will let Euan Robson in at this point.
What does the panel see as being the main purpose of the strategic development plans, and how do they relate to the other two types of plan?
There is always a question about developments that cross local authority boundaries as a consequence of development pressures in and around towns and cities. The issues arising from development cannot always be ring fenced within a municipal boundary, so a way must be found to resolve those issues. The Executive's view is that such issues are likely to arise mainly around cities, hence the need for city region plans and strategic development plans. That is one issue.
I advance the proposition—with which I do not necessarily agree—that that is a recipe for argument and conflict. If an additional authority is created and the component authorities do not agree, how will matters be resolved? How can one impose a decision that is made at one level at another level? What happens when boundaries are proposed outwith the strategic planning authority area? Do you see those issues as a problem, or do you think that the Executive and the wider planning community are able to cope with those potential difficulties?
I will give two quick responses because Greg Lloyd will have something to say. On the first part of your question, as the bill is formulated, strategic development plans will cover the boundaries of several authorities, so it will be important for authorities to work together to produce a common strategy. That has been the practice with old-style structure plans, so it is not beyond the bounds of reason to think that one of the ways in which we will avoid political conflicts, at least, is to ensure that the constituent authorities are signed up to that.
Why have boundaries at all? What will happen to an authority that is sandwiched between two city regions?
Greg Lloyd will get me out of answering that.
That is an important question because one of the problems with the 17 structure plans, six of which are prepared jointly, is that they do not reflect functional travel-to-work relations, commuting flows and other journey-to-work issues. They also fail to reflect where people go shopping or go out for an evening. The strategic development plans offer an opportunity to redefine that.
I do not entirely agree with what Greg Lloyd has said about boundaries, but we are academics, so we are meant to disagree from time to time. Boundaries give certainty about the area to which a policy applies and investors and communities need to know that. If a strategic development plan contains a restriction, people need to know where the boundary is and in which area the restriction applies. The committee has had interesting discussions about the green belt. That is an example of a context in which it is important to know where the boundary is and in which area there are restrictions. With some policies, the absence of a clear boundary creates uncertainty and potential blight. A boundary is a pragmatic device; it does not conflict with Greg Lloyd's general aspirations. If we are to have territorial policies, unless they apply to the whole country, people will want to know whether a boundary affects them.
As you heard, I have the next lot of questions.
Further guidance will be produced in due course. I welcome the hierarchy, because it demonstrates sensitivity to the types of development that arise. It will also allow much more sensible allocation of resource within planning authorities, so that major developments may be accorded greater effort and attention, because their impacts could be more significant or more controversial or might have to be explained more substantially. At the minor end, we could relieve pressures on the development authority, so that it is able to dedicate its attention elsewhere. The proposal is an important step forward and could represent very good management of the planning regulatory arm. It could work sensibly.
Are you comfortable with the suggested approach, which is that the number of houses could determine whether a development is major? Is that the right approach? That might give a developer an incentive to squeeze in a few extra houses so that a development is treated at the next tier up and there are guarantees about timescales, processes and so on.
Greg Lloyd is the economist; I am not sure whether such an approach would influence developer behaviour. Developers want the best return from developing land. I am not sure whether they would add five or 10 houses just to get out of one regime and into another. That might happen at the margins, but I do not think that it will be a big factor.
Sure.
The hierarchy will also address a problem. Evidence shows that planning authorities that are good at meeting or getting close to meeting performance targets on dealing with all planning applications are good at dealing with the minor stuff, such as householder applications, with the consequence that the major stuff suffers. The proposal could help us to ensure that, at different levels, the right procedures are in place to ensure that we allocate priority and resources where they are most needed.
Is the difference in how major applications will be treated more about giving developers assurances, or does it cut both ways, and it is about communities and their sense of how proposals impact on them? Is it about giving additional time—if that is necessary—to get people on board and to make the case for something, as opposed to having a strict process that will result in a decision by a certain time?
There are different aspects of the matter. For major developments, talking to the developer up front and more openly might encourage more partnership and understanding on both sides, which might be a way of avoiding difficulties later on. Talking about delivery timetables is also to be welcomed because that will introduce greater certainty to the process. Members of the public and different communities will always have an opportunity to inform strategic or local plans. Their views form the basis on which the local authority will discuss matters with developers. However, the system will be opened up rather more.
Those are positive remarks, but we all know that, in reality, many people will not have become involved in discussions about a plan or will not have lived in the area when a plan was being developed, but will react—positively or negatively, depending on the circumstances—when a specific proposal is made. Should the treatment of the more major developments take into account a community's needs and the ways in which it can become involved rather than only the developer's need to have assurances about issues?
That is an example of where the Executive is trying to square the circle in respect of speed versus engagement. One reason why major development applications often take months—if not years—to resolve is that issues emerge only once the application has been received. Therefore, developers face much uncertainty about the objections that could emerge and the authority's views and then face amending their plans in response to issues that are raised by elected representatives and local communities—that will happen after neighbours have been notified, for example. There is then no requirement to renotify, so things will be changed and people will not know what is going on.
That is another aspect of the culture change that lies behind the bill.
Finally, I want to ask about the other end of the spectrum—minor developments and the idea of extending permitted development rights. Do you have views on whether or how that should be done? How might such an extension be perceived?
I should say that I am leading for the Executive research for the review of the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 and householder applications. It is still at an early stage.
I will not demand that you start disclosing things that you cannot disclose, but I end by expressing my hope that you are all talking microrenewables.
It has been made clear to us that that is an issue that needs to be addressed.
Still on the theme of development management, will the proposals for neighbour notification, preliminary consultation, predetermination hearings and so on make the planning system more accessible? I have one or two specific questions on that but, more generally, do you think that the Executive is moving in the right direction with those proposals?
I think that it is moving in the right direction. As Alan Prior said, an attempt is being made to bring the efficiency aspirations together with the inclusion aspirations. I can see nothing in the bill that diminishes either of those sets of aspirations. The bill contains an important set of steps, which will allow for development to proceed in the public interest. That, after all, is what planning is about.
I agree. The neighbour notification process and the risks involved in that will put a lot of pressure on local authorities and one has to look for savings elsewhere in the system if the process is not going to add to costs.
Do you know anything about how neighbour notification systems work in other parts of the United Kingdom and in other countries? Are there any bright ideas that we could pick up?
I had the honour of conducting research on that in the mid-1990s. Outside the United Kingdom, the only country where there is a comparable situation is Ireland. The British planning system is a discretionary plan-led system, which is very different from the more rule-driven systems that operate in mainland Europe. When we conducted our research, we were concerned about the risks that could be associated with challenges later in the process if things are not done correctly. At the moment, all the risk lies with the applicant, first to identify neighbours and secondly to ensure that they are served notice. That entire risk will be transferred to the local authority.
Yes. Do you really think that pre-application consultation will strengthen public consultation, or will it just involve the usual suspects?
There is a risk that consultation will just involve the usual suspects. The inclusion agenda will be a challenge for planning authorities in involving people in making plans, and for developers in involving people in pre-application consultations.
There is no disadvantage in promoting good practice among developers of different types to encourage them to engage with communities. That would be a welcome step. For example, the telecommunications sector engages with communities by talking to them to find out where there are sensitivities. Perhaps that good practice could be extended.
That would effectively be another stage in the process. What would that do to the workload of planning authorities? Some planning authorities are under a lot of pressure and have difficulty keeping to timetables. Would that get worse or would greater engagement with communities speed things up?
There are at least two ways to look at the matter. One is to say that there would be a lot of additionality but not enough people to do the job, so we would need many more planners. I would not stand in the way of that argument. Another way to address the matter, which I think is the Executive's view, is to say that it might be broadly cost neutral if savings were found elsewhere in the system by redeploying people away from dealing with relatively minor and inconsequential applications. If planning authorities dealt differently with minor planning applications, there would be scope to release resources and to redeploy appropriately retrained people to deal with areas in which there is growth in activity. However, that could be stretched only so far. Local authorities will undoubtedly have their own views on that.
I will come in on that—I am rather more pessimistic. I think that preparing the new plans, keeping them up to date and dealing with the new procedures will have a major impact on local authorities. It is an aspect of the modernisation agenda that we cannot bring in a new, modern planning system and use old institutions and mindsets to deliver it. We need a major change, so I suspect that there will be a transitional period as people adjust and take on new jobs. I suspect that the resource costs will be substantial, given that there is a shortage of professional planners in the public sector and that people must change. It is not an easy task.
I am afraid that you are probably right. To return to having the earliest possible public engagement, I am sure that I am not alone in having constituency experience of a situation in which an issue had been thoroughly thrashed out in the local plan consultation—or it was thought that it had been—some years before. A developer has come along, acquired land and wanted to undertake development that was included in the local plan following consultation, but the entire local community has suddenly thrown up its hands in horror and said that they did not know anything about the plan. Objections have come in at the application stage. How on earth can we give people their say when the strategic decisions are being taken? That, surely, is the big question.
That is a massive issue and a cultural challenge, to be honest. Generally, people tend to be constrained in their relationship with the planning system; they tend to engage with it when it affects them or when circumstances change, so there is a negative aspect of the planning system. Part of the challenge for us is to assert the importance of land use planning to every community in Scotland and to open up that planning to political scrutiny at the national planning framework level. We must be able to demonstrate across the board the importance of the new development plans, the openness of the process and the opportunities for engagement by individuals. We must get communities looking forward rather than always backward in reaction to proposals. We must all engage in—to use a hackneyed phrase—the visioning.
My final question is on the role of elected members in relation to predetermination hearings. We have all seen examples of elected members being put in difficult positions. An elected member who is a local ward councillor but who is also a member of a planning committee can find himself or herself in the difficult position of not being able to express a view on behalf of the people who have elected him or her about a proposed development in their ward. The people in the ward do not understand why the member has been gagged and feel that they are not being represented. Surely people get angry about that, but the elected member must be seen to be impartial. Will the situation be even more complicated if members are taking part in predetermination hearings? What can Parliament do to get round that problem?
There is already a lot of practice around those hearings; we need to identify how some issues are being addressed and resolved. There are conflicts about the extent to which a local member is both a policy maker and a representative, so they can get into difficulties such as Mr Home Robertson described. However, predetermination hearings are not a completely new development; they have been tried by several authorities. We need to examine existing practice and how problems are being addressed, if they are being addressed. That information could be disseminated and we could produce for elected members guidance or amendments to codes of conduct in order to ensure that things are done in a way that avoids members getting themselves into such situations. We need to do some research to find out what is being done already.
It is not the members who get themselves into such situations; rather, the legislation does that when a proposed development is controversial but the local member is prevented from saying anything about it because of the risk of planning decisions being challenged as a result of their saying something about the development beforehand. Can we find a way of helping to avoid that sort of problem through the bill?
Part of the problem is that, at the moment, planning issues are rarely discussed in general debate. We do not see fruitful dialogue about planning issues in local newspapers, nor do we hear about what different communities expect or aspire to. That dialogue just does not exist. We have in that respect developed a secretive society, such that when a proposal comes along and issues are thrown up, the situation is suddenly adversarial and sensitive and people take polarised views.
I will resist the temptation to comment on the Scottish press.
If I have seemed preoccupied during some of the evidence, that is because I was trying to get my head round some of the processes in relation to schemes of delegation. I understand that the schemes relate to local developments and minor issues such as Velux windows and conservatories. If a local authority decides to treat a proposal as a local development, how could the community challenge that? I heard what you said about proportionality, but if a proposed major development—for example, a plan to attach 1,000 houses to a village in the Borders that has only about 100 houses—is to be treated as a local development, how could the community challenge that? I cannot see anything about that in the bill.
One way to deal with that would be to introduce consistency by determining local developments and thresholds through secondary legislation, such as development orders, so that everybody would know that local developments fall within certain limits and that a development that falls outside them is a major one. To leave that to the discretion of the development plan would lead to difficulties at the margins. People might assume that a deliberate political decision had been made to treat differently a development in a particular category.
So we would allow communities to challenge proposals at that stage, if the definition was in the local development plan.
Yes.
Fine. I want to put that matter aside for a moment.
Minor developments would be permitted. For local developments, the answer depends on how the schemes of delegation are prepared—they are to be prepared by local authorities but submitted to ministers.
Broadly, what is your guidance on the matter?
If a person is refused permission for a local development by an officer acting on behalf of the authority, or if somebody is granted permission subject to conditions that they believe to be restrictive, the right of appeal will be to the elected members, who will review the decision. If the person is not happy with the outcome of that process, that is it.
There is no further appeal.
There is not—unless the person feels that there has been legal impropriety, in which case they can go to the Court of Session.
That is the process for my conservatory or Velux window. What about a local builder who wants to put 30 houses in an area that is designated for building in the local development plan, but who is refused permission for whatever reason? How would the flow chart look in that case? I understand that the case would go first to the planning committee.
If the decision is not delegated, it would be taken by the authority. Any review would be done by central Government, at ministerial level.
The case would be referred to the Executive's Development Department and there would be a right of appeal beyond that to the Court of Session.
Yes, but only on legal grounds.
So the appeal could relate only to processes.
Yes.
I have asked previously whether the system will be standardised throughout Scotland. I know that proposals have still to be produced on that, but what is your view? We do not want people in Midlothian to find that East Lothian Council has different rules and restrictions.
There are two aspects to that. One is whether the definitions of "major", "local" and "minor" will be the same everywhere. If they are to be the same, that will be spelled out in secondary legislation. The other aspect is what will be delegated to officers. As I understand it, the fairly minor local stuff will be delegated, but there is scope in the delegation scheme for each authority to act slightly differently by giving their officers more or fewer delegated powers. Currently, some councils delegate a lot of powers to their officers and others delegate none. One way to avoid inconsistency and potential unfairness is to ensure that the definitions of "major", "local" and "minor" are determined nationally. The question would then be whether schemes of delegation should conform to a norm. I suspect that local authorities will want to decide what powers to delegate to their officers and not have ministers tell them to do it.
So we might have quite a bit of variety.
The schemes of delegation are to be prepared by the authorities and submitted to ministers. Therefore, ministers can intervene if they are unhappy.
The point about consistency is important. In all the consultations leading up to the modernisation of planning, the concern that was expressed by communities, developers and house builders was about there being inconsistency. It is important that there is a solid and robust attempt to create consistency, openness and transparency in the procedures.
I chose the example of Midlothian and East Lothian at random, but we know that it is much harder to get building warrants for certain things in Edinburgh than it is in other parts of the country. We hear solicitors saying that people have had to jump through hoops to get building warrants in Edinburgh, but people in other areas have not.
There has always been an issue about the level playing field in rights of challenge. Groups of people who are much more articulate than I am will argue persuasively that there should be a third-party right of appeal, because the developer has the right of appeal. One could interpret the way in which the Executive has tried to deal with that as a means of levelling down the playing field, rather than levelling it up, by restricting the grounds for appeal by the developer. The Executive is restricting what the developer can ask to be reviewed.
I hear what you are saying. If the procedure has gone wrong, there should be a right of review. Someone might go to the ministers and have an appeal at the Court of Session, but only on procedural grounds, not on substance.
My reading is that it does not.
One can imagine good advocates fitting a lot of stuff in there.
The intention is to limit the right of appeal to the substantive planning issues that arose in the original decision—
I understand that but I can see holes.
To provide that no other matter may be raised whatever the circumstances might be a breach of natural justice, which could lead to challenges in the courts. In some circumstances, it may be appropriate to introduce new material. However, from my reading of the bill, that would be the exception rather than the rule.
Exactly. These points tie in with points that I have raised before on section 7, on variation of planning applications. If it is not considered "substantial", a variation can be agreed between the applicant and the planning authority. I am concerned about communities' rights. Their objections may have been rejected and plans may have gone ahead, but they may then find that there has been variation in the plan. The third party has no right to challenge the definition of "substantial" let alone challenge the variation itself. I take on board what you have said about rigorous consultation, but there seem to be problems here.
There is a big grey area. When a planning application is submitted, it becomes a process of negotiation between the applicant, the planning authority and any other parties, including the statutory consultees. There will always be scope for amendments to the application, in order to deal with issues that objectors or others have raised.
Can you tell me the answer?
The answer will vary. I am not sure that one definition could be applicable in all cases. It is a difficult question. How do we deal with such issues as we seek to avoid the need for additional rights of challenge—a third-party right of appeal, for example—and as we seek to ensure community engagement that is more effective, more transparent and more involving? I do not know the answer.
Could there be a procedural route for a third party to challenge the meaning of "substantial" in some forum and for an independent decision to be made? At the moment, the applicant and the planning authority can simply agree and no one else can challenge that agreement. What can people do? Can they go to judicial review?
There is a step before that. Development pressures, circumstances and conditions vary considerably across Scotland. Each local authority has to be sensitive to that and the onus is on local communities to be aware of differences and interpretations.
You are not answering my question; I am asking about the procedures that are in place. As a member of my community, I might find out that developers are being allowed to do something different from the original plan. The planning authority might have agreed to the change and the community might have been told that it is not substantial and is being allowed. If I think that the change is substantial, will I have any way to challenge the decision? It would be useful to have a definition of "substantial" so that there are no grey areas. There is no problem with simple cases of minor and major changes, but what about those at the margins? Where do we draw the line and who will challenge the decision if it is in the interests of both the planning authority and the applicant? I am looking for a procedure. Is it judicial review or should we have another procedure through which people can raise objections?
I am not a lawyer. I understand that you will take evidence from the Law Society of Scotland at a later date; it might be useful to put the question then. My understanding is that judicial review is about whether a local authority followed the process properly and made a decision based on all the relevant planning considerations. One characteristic of the statutory planning system is that there is always scope for discretion in what we mean by "significant" and "substantial". There is an assumption that the decision maker—that is, the minister or the local authority—will act in the best interests of the public as a whole. That has been the system from 1946 to the present day. One might argue that we have a more jaundiced view about such matters than we had in 1946.
Thank you. I will leave it there and put further questions to the lawyers.
I move on to the end of part 3, which includes the changes that the Executive proposes around planning permission in principle, planning obligations and good neighbour agreements. A number of my colleagues have highlighted the need for the reform of the planning process to build communities' confidence, so that people believe that the system is open and transparent and that community interests are considered in the decision-making process. Do you believe that the changes will do that?
There has been a lot of concern about those matters in the planning profession. The bill contains some significant steps forward. At present, as the policy memorandum explains, outline planning permission can be granted subject to a set of reserved matters, and no formal application or public notice is required. That system will be replaced by a formal requirement for planning permission in principle—applications will go through the normal planning processes. At present, reserved matters can be quite substantial; for example, they might involve the number of houses, how high they are and what they look like.
I agree with that. The bill tries to realise efficiencies in the system while opening it up to create greater confidence and transparency. Those are important steps in trying to bring the two sides together.
I do not think that there has never been willingness in local authorities to enforce planning conditions, but local communities have said to me that planning conditions are sometimes not worth the paper that they are written on, because nobody enforces them or checks that they have been adhered to. Sometimes, people would rather have some pretty detailed and limited conditions than a whole raft that nobody pays attention to. Will the bill get that balance right?
The emphasis on enforcement and demonstrating that decisions have been taken and are being carried out in the public interest is a major step forward. Research over the years has shown that enforcement is the weak link in the planning system. The bill recognises that. It represents a step forward, and I welcome that.
We did research on this subject in the mid-1990s, when a whole raft of new enforcement powers were introduced. We checked the extent to which they provided an effective toolkit for local authorities to tackle unauthorised development. We came to the view that the toolkit was effective, but that there were lots of reasons why local authorities were not using it, for example because of resources or because of political considerations. Some authorities refused to serve a stop notice in any circumstances. The authorities that delegated powers to their officers were more active in enforcement than those that did not.
Does enforcement need to be done by planners, or could some of it be tackled by other people who work in planning departments in local authorities? Is there sometimes reluctance in planning authorities because planners want to do everything? I am not saying that they should not try to do everything, but is there a need in the profession for planners to say, "Although there are certain things that we have to do and want to do, and those are our priorities, we accept that other people can do this job and we can work in partnership with them to ensure that everything to which we aspire happens"? Enforcement might be one of those areas.
My view is linked to my earlier response: it is for local authorities to reallocate their resources in light of all the new responsibilities, attitudes and mindsets. Again, depending on circumstances, each local authority should be able to make its own arrangements. Planning is about looking forward and regulation. Enforcement could be disentangled as an administrative task. However, there would always need to be close co-ordination between the planning agencies and the enforcers.
That is right. Enforcement officers need some skill sets that are not coincidental with being retired police officers, which is what they have tended to be in some cases. However, many of the difficulties with enforcement arise from authorities approaching the task inadequately, compared with how police officers investigate cases. We are talking about whether something is development and whether it is unauthorised. It seems to me that there is not a lot of grey area around those matters, and that they do not require professional planning judgments. Determining those matters requires people to collect evidence so that action can be taken.
My final questions relate to good neighbour agreements, which are new. Do you have any research experience of how they work? I think that the one country in the world that has used them is the United States. Is there a body of evidence to suggest that they have worked well there? If so, what can we do to ensure that ours work equally effectively, so that communities feel that good neighbour agreements contribute positively to ensuring that developments are partnerships between developers and communities for community benefit?
Good neighbour agreements are prevalent in the United States and in Canada, where, it might be said, there is a different attitude on the part of developers and industry. They are keen to be seen to act with the community, as it is an expression of corporate social responsibility.
The only thing that I would add is that they are agreements, and therefore they require parties to agree on the circumstances in which the agreement might have to be enforced. Operators will enter into agreements with local communities about many activities on land, and developers will enter into agreements about the construction phase of major developments. Those are not the problem; the problems arise with operators and developers who are not interested. The issue is how to bring them into agreements. One way of achieving that is to make an agreement a condition of receiving planning permission, as we do with planning agreements or obligations.
That is true. In fact, I know all about that, because Greengairs is in my constituency. I was not going to mention it today—
You always do.
Have you mentioned wind farms yet, Mary?
No.
I know from experience in Greengairs about the difficulties that can be caused by developers who sometimes do not want to engage with communities. However, I also know that communities can become experts in such matters. Indeed, to deal with the hard reality of living next to the type of development that most people would prefer not to live next to, some people in Greengairs have turned themselves into experts and have become very articulate and effective at working with developers and landfill operators to ensure that their community gets a better deal.
Gentlemen, I presume that you welcome the bill's provisions on assessment of planning authorities' performance. Are the proposals adequate to meet that objective or might the Executive need to establish a stand-alone inspectorate that is similar to, for example, Her Majesty's Inspectorate of Education to examine authorities' performance?
This issue is highly sensitive. For a start, it all comes down to the question of resources. If we intend to modernise the planning system, we need to examine how it will be resourced, what kind of infrastructure will be provided and how all the activities will be co-ordinated.
That leads neatly to my next question, which concerns the level of fees. Is the proposed fees structure appropriate and will it achieve the increase in resources that you have suggested will be necessary?
It is generally accepted that the current fee arrangements are not efficient, partly because of the proportionality aspect. For example, the fee for processing and regulating a development proposal worth millions of pounds might be only a couple of thousand pounds. We need to redress that situation because, under the new hierarchy, the authority might need to dedicate an extensive amount of effort to processing and regulating major applications. If we are to reflect the full economic cost of the procedure, the fees will need to be radically revisited. However, I do not think that developers will necessarily object to such a move if it improves the planning service and leads to more consistent and quicker decisions. At the moment, there is simply no proportionality between the level of fees and the energy and work that are dedicated to the process.
I do not wish to put words in your mouth, but are you suggesting that the fees for processing more minor applications could be lowered while there could be more marked increases in fees for major applications?
Such an approach would certainly accord with the principles of progressive taxation. I am not saying that the fee would be a tax, but it would represent a progressive charge that reflected the resources used to reach a decision.
My last question concerns the support for organisations that help people to lodge objections or to become involved in the planning process. Current funding goes predominantly to Planning Aid for Scotland, but is it adequate? Should that aspect be developed in some way and, if so, how should the provision of assistance to people so that they can engage in the process be developed? Should the fee structure take into account the necessity for funding advice organisations? Would you consider taking some sort of levy off the top of the fees to assist in the provision of independent advice and support?
The bill provides for various kinds of grants to be made by ministers and Planning Aid for Scotland is one of those organisations that have benefited from such support. I am aware of at least two functions that it performs. It is a network of volunteers who provide their services for nothing to help people, not to get planning permission but to understand how to go about dealing with the planning issue about which they are concerned. The other important aspect is training. It seems to me that the role for bodies such as Planning Aid for Scotland might be more in awareness raising, training, and skill development than in advocacy or helping people to deal with particular difficulties. Other bodies, such as universities might also provide such support. Money could be used for that purpose.
If we are saying that it is important that community groups and communities in general are more involved at the early stage of development plans, is there a mechanism by which some consistency can be given to them? Developers will have access to a lot of technical and legal advice, but community groups that want to advance their case will not have access to that advice; is there a need for public provision to assist community groups in such circumstances? Would you say that providing such assistance would be consonant with the general principles of the bill?
I would welcome a world where developers carried out their corporate social responsibility to local communities. I would like developers to explain why their proposals are significant and important, to allow the community to articulate its concerns and to have a productive dialogue about them. I would challenge secrecy as much as possible.
Professor Prior, I am conscious that you wanted to leave the meeting by 12.30 pm. I anticipate that the committee will have five to 10 minutes more of questioning. If you need to leave to get to your other meeting, I am sure that committee members will understand. I hope that Professor Lloyd will be able to answer any additional questions that we might have.
If we are talking about finishing at about 12.45, I am happy to stay, as I would not want to leave Greg Lloyd on his own.
Thank you for hanging on that little bit longer. I hope that members will remember that their questions should be short. Christine Grahame, you can ask one very short question.
Certainly, convener—dare I not.
I did not mean to sound disparaging—
I did not mean disparaging of the personnel.
As a concept it is important to track and monitor the performance of planning authorities, because after all they are providing a public service and public moneys are involved. I was not saying it in any negative way.
We will forget that I said that.
However, it is important that the criteria by which local authorities are assessed reflect the modernised planning system. It is about qualitative as well as quantitative evidence. I would love to hear communities saying, "Things are much better now." I look forward to the day when developers say, "Things are really beginning to happen." Those are the important messages that we should be looking for.
So would you propose a review and reform of the planning audit unit, so that it does not just take in bare facts but has some other role? That is what I was getting at.
To say "review and reform" is probably too strong, but the unit should certainly reflect the new regime.
I am delighted that you are both still here for the final group of questions because it is close to home for you—it is about planning education. The financial memorandum acknowledges that the planning system is currently underresourced and underperforming—that has been a theme throughout today's questions. I shall lump my questions together and allow more time for your answers. First, on the shortage of qualified planners, I have information from a parliamentary question, which is based on 2003 statistics, that there are 84.5 full-time equivalent vacancies—perhaps you have a more up-to-date figure. Furthermore, I am told that a high percentage of the planners in our local authorities are over 50. If you have anything on that issue, that would be most helpful.
A complex range of issues is involved. It is generally acknowledged that there is a shortage of planners. Many of the graduates who come through the undergraduate route have the generic, core and specialist skills that make them attractive in the eyes of other professions. The careers that planning graduates take up are not confined to the surveying or development world. At the moment, my graduates are also going into the consultancy field. Notwithstanding the opportunities that exist in public service, they are looking more widely at the available opportunities and making rational career decisions.
I have a follow-up question on the Ove Arup "Resources for Planning" report. The answer to a parliamentary question that I asked stated:
No. There is a body called the Scottish planning education forum, which in effect comes under the auspices of the Scottish Society of Directors of Planning. The Executive is represented on the forum, as are planning consultants. It meets regularly and enables some of the issues to be articulated. The issues that you raise have been around for a long time and are well recognised. It is important to say that the planning schools talk to each other about the way in which we can promote planning education in Scotland. We are aware of what we need to do.
The shortage of planners is also a big issue in England. The Office of the Deputy Prime Minister recognised that and one of its responses was to create a series of postgraduate planning scholarships. The ODPM set aside £3.5 million for 144 fully funded scholarships each year for three years. That is a substantial amount of money to put into education. The ODPM has said that there is a shortage and that the way to address that is by funding people to study planning, provided that they come out at the end of those courses and go into public sector planning—and, from the ODPM's point of view, in England. We have benefited from that to some extent. The Scottish Executive does not have anything like the budget of the ODPM, but it has put its limited planning and development budget into mid-career training. I have always asked Jim Mackinnon—although he has always said no—whether we could do something on an equivalent scale to encourage people to come into planning courses in Scotland and to ensure that they stay in Scotland, because there is a risk that they will leave. We are now attracting many more high-quality graduates, but there is a risk that they will leak south, because of the conditions of their scholarships.
Have you had any feedback from the Executive to confirm that it is looking at the outward migration of many of our planning graduates? What can be done to make local government an attractive option for a planning graduate, because it does not appear to be attractive at the moment?
To answer the second question first, one of the things that must be done—and the modernisation white paper is contributing towards it—is to say that planning is about spatial planning, vision and forward thinking, and that it is not principally about deciding whether a conservatory should get planning permission. Changing the minor end and taking that out of the system, changing who handles enforcement and concentrating scarce planning resources on big spatial development management issues is one way of getting back to why planning was introduced in the first place—to sort out and manage our land development pressures over long periods of time. That will help, but I think that students, including my students, will go into planning and take their planning skills into the private sector if they see that as more exciting, dynamic and rewarding. Rightly or wrongly, they tend to associate local government with bureaucracy, negativity, low morale and few career prospects, so we also need to address some of those issues.
The bill's approach is to promote a much less adversarial system. Some of our planning directors acknowledged your point that planners face battles every day and that that can be quite stressful. Given the thrust of the bill, do you think that that is enough to attract some of your graduates into local government, or do you think that it is really a financial thing and that local government planners are simply not paid enough?
The Planning etc (Scotland) Bill and last summer's white paper have certainly engendered a sense of excitement about planning, but we must not become complacent and assume that everyone will recognise that excitement. We have to go out and promote it, celebrate it and champion it. After all, young people want to make a difference and many of them do not realise that the land use planning system is the way to change landscapes, cityscapes, the urban condition and so on. When they realise that and learn about it, they become very much engaged. I would like the modernisation agenda to be debated, popularised and promoted as widely as possible, because we need people with vision to come in. That seems to be the bias of the bill; it is about looking forward, thinking ahead and trying to anticipate change. For me, it is exceedingly exciting.
Will you both be considering expanding the number of places in your planning schools in order to meet the requirements of the bill?
At postgraduate level, that is not a problem. We will take as many MSc students as are prepared to pay the fees to come and study with us. The difficulty, of course, is for those who do not have the financial wherewithal to study, so some kind of scholarship scheme to address that would be welcome. There is no restriction on the number of good-quality people we can take on at postgraduate level.
That takes us nicely to almost 12.45. The committee questioned you about its areas of interest, but I am conscious that we may not have touched on matters that you would have liked to raise. Feel free to do that but, given the timescale, it may be easier for you to write to us with any issues that were not covered today.
Thank you; we will do that.
I thank you both for attending and for your good evidence. I am sure that the committee will reflect on it.
Meeting suspended.
On resuming—
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