I open the 10th meeting of the Communities Committee in 2006. I remind all those present that mobile phones should be turned off. Apologies have been received from Tricia Marwick, who is unable to attend the meeting.
I appreciate the fact that I am noted for my patience, and it is good to have it acknowledged this morning.
I will start the questioning. When do you expect every local authority in Scotland to have an up-to-date development plan?
Different local authorities are at different stages. We are not starting at a base from which we could reasonably expect all plans to be rolled out by a certain date. The process will be important for local authorities as they develop their plans, and they will not all do that at the same pace. Perhaps Jim Mackinnon can outline the timetable for some of the proposals that will be made in secondary legislation.
As the minister said, planning authorities are at different stages of plan preparation. Some are close to adopting local plans and some have structure plans either that are with us at the moment or that will be submitted to us shortly. Those should provide a long-term perspective on Scotland's future.
The committee shares your concern that the bill should not act as a deterrent to the production of development plans, which are needed. If we do not have development plans, it will be difficult for people to know what the shape of their community will be. However, our experience in Scotland is not uniform, and several local authorities' development plans are considerably out of date. What reassurance can you give the committee that the development plans will all be up to date? At the moment, in some local authorities, they are 10, 20 or even 30 years out of date.
The bill draws a line in the sand and makes it clear that the new system will be a development plan-led system. That marks out to local authorities why it is important for their plans to be kept up to date. Equally, we will have to ensure that local people understand that their engagement at the development plan stage is critical. That is why the development plan process will involve neighbour notification about specific proposals in the plan, rather than leaving that until an application for planning permission is made.
What action does the Scottish Executive envisage taking if development plans in a particular local authority are not kept up to date and do not comply with the five-year timescale?
It is helpful to work on the assumption that local authorities want to co-operate with the new process. They have been extremely positive and there is recognition that having an up-to-date development plan that local communities have bought into is a strength, because it helps local authorities to manage their business. There does not necessarily have to be conflict. However, as I said, the development plan is critical. If there is a pattern in a local authority of its development plan not being up to date, being out of kilter with everybody else and all the support mechanisms and training have not effected a change, ultimately the Scottish Executive can ask for a planning audit from which there will be recommendations that can be pursued.
My final question is about the ability of the Executive and the Scottish Executive inquiry reporters unit to consider development and strategic plans. Are you aware of the concerns of local government about the pressures that might arise, particularly in the reporters unit, as a number of local authorities finalise their development and strategic plans? How will bottlenecks be dealt with?
We want to work closely with local authorities to manage this business. There is no point in having a development plan system that falters because we do not have the means by which to work through the process to approve the plans. We need to work with the reporters unit and local authorities to identify what causes those bottlenecks, how the process can be managed and the problems addressed. Perhaps Jim Mackinnon can highlight some practical measures.
A key point to remember is that, for the first time, we are proposing a statutory requirement to keep development plans up to date. I am afraid that that has only been honoured in the breach so far. It has been a good idea and good practice, but we are now proposing that plans should be updated every five years. That requires a culture change in the management of the process, not just to make it a technical or bureaucratic process, but to ensure that communities are involved throughout the process and have trust and confidence in what is happening.
We heard evidence from the Convention of Scottish Local Authorities last week. The witnesses argued that giving a reporter the final authority on development plans failed to acknowledge local democratic accountability for decision making. How do you respond to that contention? Why have you given the reporter the final authority?
We acknowledge the critical role of local authorities in delivering development plans and bringing about change in local communities, and we acknowledge that local authorities are democratically accountable. COSLA probably highlighted that in its evidence. However, there is a tension. On balance, we judged that we wanted a broader—from the stakeholders' point of view—fairer and more independent process. That is especially the case if a local authority has interests in sites covered by the development plan. Two themes that have run through our discussions on the bill have been democratic accountability and local authority interest. We are trying to strike a balance and we acknowledge the importance of independent scrutiny.
It would be helpful if the wording were reconsidered. Communities need to know what they can expect from a development plan. At the moment, there are gaps that have to be filled. COSLA argued strongly that, if the final authority rests with a reporter, the work that local authorities are trying to do for their communities could be undone. The idea of there being a partnership must be strengthened; it should not be a case of one or the other partner being paramount.
We want to resist centralisation; the charge of centralisation concerns me greatly. However, communities have to be confident that what local authorities do is open to scrutiny. We are happy to consider the wording in the bill to see how COSLA's concerns can be addressed, but people want local authorities' plans to be open to independent scrutiny too.
In England, the recommendations of the inspector—as the reporter is called—are binding on local authorities. We do not think that that is appropriate for Scotland and we want to acknowledge local authorities' crucial role. However, people sometimes write to us to say that, although their case was considered at an inquiry and the reporter accepted their arguments, they now feel disillusioned and disenchanted with the planning process because the reporter's recommendations were overturned. We want to put checks and balances into the system. People's arguments have to be heard, and local authorities rightly have a role in the process. As the minister said, we will consider the wording to see whether we can ease COSLA's concerns.
Thank you for that.
The strategic development plans are significant and we want people to work together on them. The power is an important way of ensuring that the plans are developed in the way that has been suggested. The power is not to identify individuals and tell them to do a particular job; we want to ensure that the arrangements for joint working are effective and that management issues do not break the process.
On a more local matter, Fife is to be split between the strategic development plans for the Dundee and Edinburgh city regions. There is considerable opposition to that in Fife. How will you ensure an equal partnership between the local authorities that come together to develop the plans and that they work together effectively?
Fife will not be split in two, but Fife Council will make an important contribution to the city region plans for Dundee and Edinburgh. Scott Barrie knows Fife better than I do, but it is fair to say that, as Fife has an interest in both city regions, it is important that it is represented at both tables. At present, cities develop and the local authorities in the surrounding areas have to—
Pick up the pieces.
I would not say that, but that is because I live and work in a city, so I may have a slightly different perspective.
That is absolutely right. The issue is about where the boundaries are drawn and which areas might become less important. The salient areas near the two bridgeheads are important to the local authorities to the north and south of Fife, but the contentious matter is how far into Fife the regions will go. I accept that Fife will not be split in two, but there is a temptation to think that, because we will have to draw the line somewhere, which will obviously cut Fife. That is where the difficulty lies.
The critical point is that boundaries will be agreed by consensus or, if there is no consensus, the Scottish ministers will have a role. The underpinning idea is not that one council will impose its will on another one; the aim is to find a way of harnessing all the energy. Therefore, Fife Council will be at the table arguing on the challenging issues. For example, I am sure that travel-to-work patterns are not, as one might expect, that people who live at one end of Fife go to Edinburgh and people who live at the other end go to Dundee. Fife Council is best placed to point that out and make its case. Issues arise about getting a consensus on the strategic plans.
I make it absolutely clear that the bill will not give ministers the power to transfer staff or appoint people to specific posts. For pay and rations purposes and other employment reasons, the people in the strategic development team must be employed by a particular authority. Under the arrangements in Glasgow and the Clyde valley, which are a model for the arrangements that we are trying to roll out, Renfrewshire Council has that responsibility. The point of the power is to avoid creating a separate legal entity, with ministers directing who should be employed.
Excuse my hoarse voice. Was consideration given to including on the face of the bill a requirement that communities be consulted? That would reassure people that they will be fully included.
There is a critical need for early engagement with communities, which we have striven hard to establish. As has been identified, it will be important to involve communities early not only in the development plan but in specific proposals, which will need to be highlighted to neighbours who might be affected. We are doing a lot of work—I do not say this lightly—around community engagement and involvement. As well as publishing a planning advice note on the matter, we are ensuring that development plans and planning applications will include statements about what consultation has taken place.
The bill promotes community engagement in development planning by requiring each local authority to include in its development plan scheme a statement of how it will engage with all its stakeholders in drawing up its development plan. Communities will be key participants, but planning authorities will need to balance their interests with those of other stakeholders in preparing the development plan. Stakeholders will also need to be engaged in the issues report; such engagement was not previously required. In addition, significant proposals in the development plan will need to be notified to owners and neighbours, so people will be made much more aware of what is happening in their area.
That is helpful.
That is right. Consultation is not about sticking something on a lamp post and ticking a box to say that you have done what was necessary. The whole thrust of the bill is against that. If we are to get people involved at the development stage, rather than have them react to an application for planning permission, we will have to work a great deal harder at consulting. We must also be much more imaginative about how we consult. We will not consult young families at 9 o'clock at night in a village hall, because those people have caring responsibilities that prevent them from attending. Although there are statutory consultees such as community councils, which have a critical role, they are not the only means by which people can be engaged.
As the minister says, it is important that people have a clear understanding of how the bill will change the consultation process.
I have already said that there is important crossover from the work that has been done on community engagement. I say to Jim Mackinnon that, with respect, planners and the planning profession are not necessarily the people who are most tuned into engaging with communities. We have national standards for community engagement and we are currently developing a planning advice note, which must be shaped by something beyond the planning process. We can beat ourselves around the head and say that people do not feel that they have ever been consulted. Sometimes people do not feel that they have been consulted because they have not been agreed with, but that is a separate matter. The new planning advice note should be informed by the energy that exists in other bits of the system with regard to getting into local communities and persuading people to become engaged with issues about which they care. We are keen that there should be crossover and that the work should not be kept in silos.
You mentioned the difficulty for young families of meetings being held at 9 o'clock at night. It is important to encourage people to engage but, given what is in the bill, are you confident that effective and innovative mechanisms, including the new planning advice note, can be identified to encourage early and proactive rather than reactive involvement?
We are serious about consultation. The committee has received evidence about culture change. That is about saying that consultation is not something that people have to do because they will get a row for not doing it. Local authorities understand that in relation to other parts of their system; some local and planning authorities are very good at understanding it in relation to planning. If you are not close to an issue, you may not be aware of certain concerns. If you engage with people locally at an early stage, you are more likely to get good policy and planning. Authorities should have the confidence to view consultation not as something that they have to do but as something that will support the work of planners and planning authorities. For that reason, consultation must be imaginative.
You mentioned the development plan scheme in response to questions about consultation—I want to be clear about the role of that scheme. Will the regulations that you issue about the development plan scheme specify that such schemes must comply with the planning advice note on consultation? The letter from the Minister for Communities about secondary legislation states:
If it is identified that people went out and spoke to lamp posts, the consultation will not meet the standard that we expect to be met.
If the consultation does not meet the standard that is to be set out in the planning advice note, what will you do?
The planning advice note's purpose is to give advice. We are obviously keen that authorities take that advice. We want to be able to establish that they have taken that advice and worked it through in relation to their community consultation statements. I do not think there is a conflict in that area; it is a question of understanding, not a question of something's being imposed. It will be horses for courses within local authorities, but we want them to be able to establish that they have taken the consultation process seriously.
What would be your threshold for saying, "That's not good enough?"
The planning advice note on community engagement will be a living planning advice note. The idea is that it should not simply be a case of saying, "That's the planning advice note produced in 2006. End of story." If examples of good practice arise, we intend to post that good practice on the website. As the Deputy Minister for Communities said, the planning advice note will be a benchmark that will highlight good practice. We expect local authorities to build on that and to take an approach that reflects the circumstances of their areas. I suspect that the sort of consultation that might be undertaken in a dense built-up area would be different from the consultation that would be carried out in a remote rural area. Equally, if intensive change is proposed for an area, a different level of consultation might be required than if little is likely to happen in an area. There would be a series of criteria-based policies about that.
To continue on public consultation on development plans, I know that you have said that local authorities will have to prove that they are not merely consulting through the lamp posts in the area, but how will the information that is gathered show that there has been genuine consultation of community groups and not just of a small group of people who are not representative of the wider community?
There has to be a consultation statement. The extent to which the authority has fulfilled its commitments in relation to it will be tested at the examination stage. There will be an opportunity to ask authorities what they did and to whom they spoke. There would be evidence of that at that stage. Authorities have to clarify what they intend to do and what they do, which will be reflected in the examination.
We need to broaden the basis of consultation on development planning. As the minister said, a consultation at 9 o'clock at night in the village hall will not encourage a broad spectrum of the community to become engaged. There are various techniques, such as citizen juries, whereby we can detect the views of a wider cross-section of the community. We expect planning authorities to take a more contemporary approach to consultation, rather than just taking the lamp-post approach—I feel a planning advice note on lamp posts coming on.
It is important that we engage with all groups in the community. How will you ensure that local authorities do that and that they treat people equally? We are consulting groups such as Gypsy Travellers, young people and people from minority ethnic communities. Will local authorities have to demonstrate to the reporters that they have engaged with such groups?
That is an important issue, because we are talking not just about geographic communities but about communities of interest. We have to meet the challenges of the equalities agenda and we have a responsibility to reach out to different communities, of which local authorities have to be mindful.
Before I move on to ask about key agencies, I have one follow-up question on consultation. I was struck by what the minister and others said about the typical meeting in a draughty village hall at 9 o'clock at night. At that time of night many of our constituents, particularly those with young families, are likely to be watching telly. If we want realistic consultation and information about important planning issues that affect the whole of Scotland, it is important to get broadcasters engaged so that instead of waiting to report a confrontation much later in the process, they report proposals early on. Has the Executive had any discussion with broadcasters about the role that they can play in getting information out to help ensure that there is realistic consultation early on? I know that that is difficult.
I am not so sure about involving broadcasters, although there is an opportunity to raise the issue with them. There has been discussion about that in other places. It strikes me that local newspapers, such as evening city papers, can be effective in providing information and supporting local campaigns, as we are all aware. They could play a critical role in giving people information about development plans to allow them to engage at an early stage. Such papers are rigorous in chasing down local issues. Planning is a critical issue. We will all benefit from people being engaged in the development plan process. I would certainly be interested in hearing how local newspapers think they can best be supported to do that job, if indeed they need such support. Another wee bit of the culture change that we are talking about relates to the critical role that newspapers play in sharing information with people in their communities.
That is an important part of the culture change that is required if we are to move to a proactive approach to planning.
We are at a key point in ensuring that key agencies are not simply passive consultees that come in and say something if they feel like it. It is crucial that they engage actively and that they regard that engagement not just as a right but as a responsibility. They have a responsibility to ensure that the final decisions on the development strategy are consistent with their business plans.
May I pick up on a couple of those points? First, the engagement of key agencies in the planning process is critical, but the planning authorities will have to demonstrate how they will balance the various interests that they take into account. For example, Scottish Water might have a particular view about the pattern of development, but that view might conflict with transport policy or green-belt policy. As development plans are taken forward, some pretty hard choices will have to be made. We want to ensure that development plans articulate those choices and explain how they came about.
The minister said that the Executive concluded that the imposition of legal conditions would be difficult—
Legal sanctions.
You said that legal sanctions would probably not be effective. I understand the technical point. You also talked about proactive involvement in action plans. Have you given any thought to the case for imposing on the key agencies a specific duty to act proactively to fulfil the objectives of agreed plans? That duty is important.
The key agencies will be required to co-operate in the preparation and delivery of development plans.
You will not be surprised to hear that we all have constituency experience of difficulties with Scottish Water. It has been put to us in evidence that developers and planning authorities experience difficulties with ensuring that water and sewerage infrastructure is provided so that agreed plans can be fulfilled. Does Scottish Water have the resources to deliver the required infrastructure? What can you do to ensure that Scottish Water gets its priorities right when it allocates resources in connection with necessary planning developments?
Scottish Water has confirmed that it has sufficient resources to fulfil the requirements that the Water Industry Commission for Scotland has specified. The challenge of getting our infrastructure to match our aspiration for affordable housing runs through Parliament's work. The committee knows that challenge better than most. Significant resources are available for that, so the challenge is to match Scottish Water's priorities with local priorities, which cannot be done unless there is engagement and discussion at the development planning stage. The better those can be married, the more effective the matching of infrastructure with the development plan will be. That is why we accept that it is so important that Scottish Water and other key agencies engage with development planning. It will be of benefit to them to see and be able to shape the broader picture, although that is not to say that it will be easy.
You will be aware that we have heard a range of views on sustainable development from different witnesses; some feel that it should, if anything, be beefed up in the bill and others have concerns about what it will mean in legal terms. Will you respond to the different views that have been discussed in the committee and give us your view on how sustainable development should be defined?
We all agree that planning is a key means of delivering social, economic and environmental sustainability; that is already recognised in our planning policies. It is significant that there will be a new statutory duty on planning authorities to exercise their development planning functions with the objective of contributing to sustainable development. That duty is part of our commitment under the sustainable development strategy, but I realise that there are different views on it. The Law Society of Scotland has said that there is a potential for legal challenge, while the Convention of Scottish Local Authorities has suggested that there needs to be more flexibility. We agree with COSLA, which is why there is no statutory definition of sustainable development in the bill or in any Scottish act.
I appreciate that we should avoid the danger that you describe as "a straitjacket", but the converse danger is that too much flexibility will allow people to ignore sustainable development if, for whatever reason, they consider it to be unnecessary or misunderstand it and think that it is a nice-to-do extra instead of a fundamentally different approach to development. How does the bill avoid that danger?
I understand that, but the guidance that we will issue on the implications of the sustainable development duty will highlight that it is not only an extra and that it should be taken seriously. The guidance will be issued in the context of the sustainable development strategy that the Scottish ministers have devised. If we are talking about culture change, we are talking about the political context in which the bill will be implemented. Political will must be attached to its implementation, and that is part of the political process, which goes beyond planning.
When will we be able to get some idea of what you intend to put in the guidance?
We aim to produce guidance towards the end of the year so that it ties in with the final part of the bill's progress. That is our indicative programme for the guidance.
Sorry, but I could not hear what you said.
We aim to produce guidance by the end of the year, but we obviously want to consult on it because it is important that there is an understanding of how the planning system can contribute to sustainable development. As the minister said, there is guidance in Scottish planning policy 1 about planning's role in sustainable development. However, there is scope for unpacking that guidance; I see no reason why we could not issue draft guidance later this year.
Why did the Executive decide to apply the sustainable development duty only to development planning functions?
The issue is efficiency in the management of the system. We believe that to do otherwise would create legal uncertainty and conflict over whether individual developments will contribute to sustainable development. I suspect that Patrick Harvie and I could argue all day long about whether individual planning proposals are sustainable.
Some other time, perhaps.
Absolutely. That emphasises the fact that a political discussion is involved. There are political arguments about such matters, which probably ought not to be resolved within a planning authority's decision-making process. There should be a political debate and a political consensus on the issues. All our political parties should contribute to the debate.
I think that it was COSLA that suggested that a local authority's general approach to development management would have to be spelled out in its development plan, so that approach would have to be consistent with sustainable development. Do you agree with that view?
We have stated what the relationship of the development plan is to sustainable development. As the development plan is a crucial factor in determining what development will happen, it is clear that in relation to sustainable development any planning application will be considered in that context. That is different from applying the test of sustainable development to each individual application.
I will add a couple of points. The point about applying sustainable development tests to development planning is that sustainable development is an holistic concept that seeks to balance economic, social and environmental considerations. The application of the duty to development planning means that the area as a whole is being considered rather than an individual development. Sustainable development is not about a series of short-term fixes: it is about looking to the longer term.
Okay. That is fine, convener.
I move on to supplementary planning guidance. The minister has expressed commendable support for the principle of local decision making. She is right about that, but some mechanisms in the bill provide for central control—I suppose that old habits die hard. COSLA has made the point that planning authorities are perfectly well equipped to produce their own supplementary planning guidance to deal with local circumstances. Why have you felt it necessary to require planning authorities to submit supplementary guidance to ministers and to provide a power for ministers to be able to require modifications?
Supplementary planning guidance that has been prepared with an appropriate level of consultation will be given a higher status in the planning system, so it is important to get it right. An important component of the proposals is to streamline development plans to make them quicker to prepare. Supplementary planning guidance can be used to set out the detailed implementation of a policy, for example on affordable housing or the contribution with respect to education. Because the guidance is important, there is an issue of consistency. It must be subject to the proper scrutiny, which is why the power of intervention is there.
Is the intention to take a light touch in that regard? Are you after consistency across the country, but without curtailing local councils' appropriate authority to make their own decisions?
I would never wish any local authority to think that I wanted to be heavy handed with them, given my historical commitment to local authorities and to the challenge of the different layers of government working together in harmony. Interventions would not be made lightly, and we would expect them not to happen terribly often. In fact, we expect interventions to be rare, which should make the partnership with local government a great deal easier.
I will advance that argument. One of the key aspects of planning reform is to make development plans sharper and more focused. That means that there is a role for supplementary planning guidance, which can be targeted more specifically. For instance, a consultation on affordable housing could be much more focused if it was done with housing interests, rather than being wrapped up in a general statement in the development plan, where its key importance might be missed. We want to ensure that the supplementary guidance is rooted in the development plan. That is important, as it is a development or an articulation of policy. We also want to ensure that adequate consultation is carried out.
Thank you—you are mentioning all the right places.
I wish to discuss inquiries into development plans. Under the bill, individuals or communities will no longer have the right to prompt a public inquiry by objecting to an aspect of a local development plan. From local experience, I know that that is a valuable right, and the proposal seems to run counter to the stated aims of modernising the planning system, making it more open and accessible and encouraging community involvement. Perhaps you could assist by giving some of the reasoning behind the policy.
There will be mandatory examination of all development plans objections against which have not been withdrawn. We hope that the examination process can be managed more effectively and speeded up while remaining just as robust. Indeed, the commitment to the process being robust remains.
Unresolved objections are to be subject to examination. What is the difference between that and the public inquiry process?
To avoid doubt, I make it clear that the bill creates a mandatory duty to have a public inquiry on and examination of strategic development plans. That is very different from the current situation. For 20 years, we have not had examination of structure plans, which set the long-term context for growth and regeneration. That is a significant step. The other significant step is that local authorities will no longer appoint reporters to local development plan inquiries; reporters will be independently appointed by the Scottish ministers.
I presume that that combination of reasons is why the reporter can determine the procedure that is to be adopted in an inquiry. If the emphasis is switched away from the local authority to the Executive appointing the reporter, it is logical to allow that reporter to determine the means by which he or she obtains evidence or hears issues.
That is the case, but that will happen within a framework of guidance and advice. We intend to update the codes of conduct on public inquiries to ensure that we have a code of practice on the conduct of local plan inquiries and on examinations in public of strategic development plans.
I will take you to the far north—to Shetland—and talk about the Zetland County Council Act 1974. The policy memorandum to the bill says:
The proposal reflects the will of the Parliament and will give effect to a decision that the Parliament made some time ago. The main provisions to transfer marine fish farms into the planning regime were enacted in the Water Environment and Water Services (Scotland) Act 2003 and were proposed by the Transport and the Environment Committee during the parliamentary process; the Scottish Executive did not promote the proposal. The Executive thought that the committee's position should be taken on board and discussion and consultation about the implications of the approach took place at the time.
The repeal of provisions in the 1974 act is not mentioned in the schedule to the bill.
The Parliament was clearly satisfied, because it passed the Water Environment and Water Services (Scotland) Act 2003 and the Transport and the Environment Committee was satisfied that the matter was of such significance that it should be dealt with in a bill that did not originally contain provisions on the matter. The provisions in the 2003 act gave effect to the Parliament's will and did not originate from the Executive, as I said. If Mary Scanlon examines the history of the issue, she will be able to judge whether the Transport and the Environment Committee was satisfied that there was adequate consultation.
I am now quite confused. We are talking about an important matter. The policy memorandum says:
No. The Parliament agreed that there should be a single planning regime for fish farms. There was huge pressure on the Executive to agree with that approach and I understand that as a consequence there were implications for the 1974 act.
However, the policy memorandum says,
I will explain the technical detail. The Water Environment and Water Services (Scotland) Bill was amended to allow ministers to make regulations to extend the planning regime to fish farms up to the 3-mile limit. Therefore, regulations under the Water Environment and Water Services (Scotland) Act 2003 are all that is required to implement that policy. The Planning etc (Scotland) Bill recognises that in Shetland—and only in Shetland, I think—the works licensing regime extends beyond the 3-mile limit to the 12-mile limit, so the bill will remove the potential anomaly whereby implementation of the provisions in the 2003 act would mean that there were planning controls only up to the 3-mile limit and the works licensing regime would apply between the 3-mile limit and the 12-mile limit. The bill will tidy up that aspect of the 2003 act. All the provisions that relate to the matter, including the repeal of provisions in the Zetland County Council Act 1974, can be implemented through regulations under the 2003 act, rather than through the bill.
I was not involved in consideration of the Water Environment and Water Services (Scotland) Bill, so I must accept your explanation.
That is a technical question too far for me. I do not want to give a wrong answer, so I refer to Mr Barraclough.
We checked the position after Ms Scanlon raised the issue at a previous committee meeting. Lynda Towers may correct me, but our understanding is that the bill's provisions will have no effect whatever on udal law. Udal law is to do with ownership of property and the bill will have no effect on that.
So the rights of the crofters and land owners in Orkney and Shetland under udal law will still stand—that law will not be overridden or repealed by the bill.
It will be overridden only to the extent that people will require planning permission in respect of use of the land, but the bill does not affect their ownership or other use.
So the extension of planning control to the 12-mile limit will not impinge on people's rights, either.
No.
Did you consult anyone on the effect on udal law? At a previous meeting, I asked officials to clarify the issue in writing. I have looked out for that clarification, but I have not received it. Have you consulted people in Orkney and Shetland and are they satisfied with the provisions?
I will check whether the correspondence that you should have received has been issued and, if not, it will be issued.
That would be helpful.
Why did the Executive decide to reduce the period for appeals from six to three months, given that we understand that the measure has caused problems in England?
One reason why people are anxious to have a third-party right of appeal is the sense that the balance is not correct in the first-party right of appeal, so we wanted to consider that balance. The period of six months creates uncertainty during which local communities are not clear whether decisions will be appealed. The change from six to three months is to concentrate people's minds. There are indications of a backlog in England, but that is not necessarily a consequence of the change there.
That is interesting, given that paragraph 232 of the explanatory notes states,
You are absolutely right that the number of appeals in England has increased significantly. It has been suggested that the reduction in the timescale from six to three months is a contributory factor, but other factors have contributed, too. It is argued that the planning delivery grant, which requires local authorities to make decisions more quickly, has resulted in the refusal of many more planning applications. I think that the rate of refusal of planning applications in England is about 50 per cent higher than it is in Scotland. We will check the figures, but I believe that about 90 per cent of applications are granted permission in Scotland, while the figure for England is 85 per cent, which means that there is a much greater volume of appeals.
You say that we must consider the changes as a package. Evidence from developers and local authorities suggests that the aim is to speed up the planning process. If we are speeding up the process, might not the unintended consequence be more appeals?
That is one way of thinking. On the other hand, the change might concentrate people's minds. We hope to set a context within which people do not make speculative appeals, as they will be able to establish from the development plan whether an appeal is likely to be successful. We must think about appeals in the context of the whole process. It is not in the interests of local communities to have an appeals system that can go on forever. We have heard stories and anecdotal evidence about people feeling ground down by putting in new applications and appealing. That is why we want to address the issues.
We want to change the nature of appeals. Local appeals tribunals will be set up to deal with local matters. Also, we are moving towards a review of the decision of the planning authority, rather than requiring a huge amount of additional information.
I had a supplementary question, but it went out of my head while you were talking about the appeals procedure. I hope that it comes back. I will ask another question and I may come back to it.
We are keen that the appeal process should become a review of the decision that is taken by the planning authority rather than an opportunity to present entirely new justification in favour of a development or a different slant to make it more acceptable. That goes with the grain of people's experience of the use of appeals. Such adjustments should have been made at an earlier stage, and the proposal gives applicants an incentive to engage at an early stage with decisions about what is acceptable instead of thinking, "If I get past this and get to the appeal, I can make my case then."
So you are not going to issue guidance or examples of exceptional circumstances, as you have in the note that we have received on what constitutes a variation. I do not think that I saw that in the minister's letter on regulations. There are definitions of what would be considered a substantial or an insubstantial variation, but I do not think that there are examples of what are and are not exceptional circumstances.
I can give you an example. If a development plan policy had been adopted in the period since the application was considered or if there was a new statement of Government policy, those would be exceptional circumstances. In considering whether something is exceptional, the emphasis will be on convincing the authority that it is exceptional and should be taken into account.
Court cases will probably provide the ultimate decisions on narrow definitions.
I would guess that a community could challenge the decision in the courts if they so chose, although Lynda Towers may have a contrary view.
I have agreed that.
We are trying to move towards a situation in which the appeal—whether it is to the inquiry reporters unit or to the local review body—is a review of the decision of the planning authority. For example, communities are not going to be saying that they thought that a planning application was for 50 houses, with an access in such-and-such a place and a mix of such-and-such houses. We want to move to a situation in which, if that is the proposal, that is the basis on which the appeal will be conducted. Exceptional circumstances would not change the nature of the proposal but, as the minister has said, there may be a new piece of Government policy on, for example, affordable housing, which might be relevant to the case in point. I suspect that the matter will always be open to legal challenge if people want to go down that route.
The matter would certainly be open to judicial review in the courts if a community was not happy that the reporter was considering exceptional circumstances in the appropriate way. I emphasise again the fact that exceptional will mean exceptional. What you said earlier was correct: the definition of what is exceptional will develop through what the courts say. The intention is to move things forward on the basis of the original decision.
Thank you. Given that the provisions on appeals interact with other parts of the bill that are to do with speeding up the planning application process—and there are other parts of the bill to which this might apply—will you consider having a section in the bill for review of the operation of the bill after a period of time? That is the practice in states such as Alberta, where provision is made for statutory review of a bill when no one knows how it will operate in practice, which allows the bill to be amended later. There seems to be a lot of interaction in this bill, but you do not know how the consultation or the speeding up of the planning process and the different appeal process will operate. You concede that
It is good government always to reflect on and review the legislative process, how legislation is developing and what the challenges are. I always talk about the law of unintended consequence. It would be a perverse Government indeed that did not recognise the law of unintended consequence and address it. That is not something that needs to be put in the bill; it is a matter of good government.
Yes, but my point is that the same people are not always in government. As far as possible, we should bind subsequent Scottish Governments to a review of the legislation.
There is nothing to prevent future Governments from abolishing the bill, if it is passed. I see no reason why we need to put a provision in a bill that identifies the responsibility of all elected members to be mindful and watchful of the impact of legislation and the need for further legislation—or, indeed, of things that are not to do with legislation. There are things that are identified in legislation that may not be successful because there is a breakdown of commitment to deliver what the legislation identifies. That would be dealt with at an administrative and political level.
I have a quick follow-up question on the point about parties to the proceedings not raising matters in an appeal that were not before the planning authority when the decision was made. Can you help me to understand the wording of the provision? The bill states:
We are saying that the appeal should be a review of the decision that was taken by the planning authority, rather than an opportunity to present entirely new justification, and that new material could be raised only in exceptional circumstances. That seems to be a clear indication of what the appeal should hear. I do not know whether there are legal niceties around that of which I should be aware, which you may wish to flag up.
It seems clear what the provision is intended to achieve; I just wonder what the consequences would be if a party attempted to raise new material but it was decided that exceptional circumstances did not apply. Would the appeal body have an obligation to disregard that new material or merely the discretion to disregard it?
In making the appeal decision, the authority cannot take account of information that is new unless there are exceptional circumstances.
It is a question of drafting. You are correct to say that the intention is for such material not to be raised. Anybody who was making a decision in this context would not take account of that information. It is not unusual in a court or inquiry situation for the decision maker to hear evidence and, where questions arise about its relevance, decide not to take account of it in the decision-making process. In this case, the reporter is likely to indicate that he or she will not take into account certain information, because the circumstances are not exceptional.
Thank you. That is helpful.
In your introductory remarks—which seem like an eternity ago—you talked about the hierarchy of development streamlining of the planning process. How do you define "national developments"? Last week we heard that COSLA was concerned that a major urban regeneration project that a local authority was nurturing could be defined as a national project. Will you comment on that?
It is worth explaining the point of the hierarchy and flagging up its importance. The hierarchy, whereby each development that requires planning permission will be classified as national, major or local, allows for a more proportionate response to planning applications, with the introduction of different application procedures for different types of development.
I would like to pick up on the specific point that Mr Barrie made about regeneration areas. Earlier this month, the Executive produced its regeneration policy statement, which identified a number of national areas for regeneration, including the Clyde corridor, the Clyde gateway, and parts of Ayrshire and Inverclyde. The national articulation of spatial priorities is largely reflected in that policy statement, but there will also be major regeneration priorities elsewhere in Scotland that are essentially local in character. The bill proposes that if a regeneration project involves a range of uses above a certain size, with a mixture of retail, housing and business, it will be treated as a major application and be subject to a processing agreement—we have provided the committee with information on those applications that we would regard as major applications that are subject to processing agreements. An articulation of national priorities for regeneration is set out in the regeneration policy statement, but local authorities will wish to pursue regeneration projects locally, whether in Fife, Edinburgh or Lanarkshire, and many developments over a certain size will be classified as major applications and subject to a processing agreement.
In the hierarchy of developments, will there be any differences between urban and rural classification? Last week, COSLA said that 100 houses in Shetland is a completely different kettle of fish from a 100-house development in Glasgow or Edinburgh. If there is no difference between urban and rural classifications and we go for consistency throughout Scotland, will there be a problem with the hierarchy of developments?
I do not think that classifying a development as major is simply to do with size. It is to do with the impact of the development and the level of complexity involved. You are quite right to say that a 50-house development in a rural area will be experienced differently from a 300-house development in Pollok, dare I say it. However, developments at that level would be matters for local development plans, which are well tuned into how things are experienced at local level. When it comes to major developments, our proposals are intended to ensure the efficient processing of the few very largest planning applications, so I do not envisage that the divide that you have identified between urban and rural contexts will apply to major applications that are complex and time consuming to process owing to their size and on which all parties agree that a decision cannot reasonably be taken within two months.
I would like to build on what the minister has said. It is important to explain that the intention with major developments is to ensure that we can deal with the huge planning applications—involving a wide range of agencies, section 75 agreements and consultation with Scottish Water, local education authorities, affordable housing providers and so on—which cannot reasonably be determined within the two-month period. The purpose of the major application category is to recognise that and to say, "Okay, this is an application for a very big project with a big impact, which will take a long time to determine, so let us agree with one another that it will take 10 or 11 months to process." There will still be certainty in the system. The processing agreement will be put in place with a reasonable length of time agreed, and then there will be a proper project plan and those involved will be able to work together to deliver certainty that the applicant will get a decision at the end of that period.
I hear what Ms Sullivan is saying about the difference between major applications and local applications, which is that major applications will be processed in a different, rather than better, way from local applications. It is useful to hear that, because some of us have struggled to get our heads round the definitions in the hierarchy of developments. Some witnesses raised the concern that developers might decide, for whatever reason, to play the system so that their development fits into a particular category. If planning applications of one category will not be dealt with any better than applications of the other category, is that concern unfounded?
Let me explain. A national development will be clearly identified as such in the national planning framework. If a development is not in the national planning framework, it is not a national development—end of story. The bill will require ministers to consult on the form and content of the NPF.
How will the processing agreements that have been mentioned operate? I take it that they will be introduced through secondary legislation.
Processing agreements are a key part of the decision-making procedure for major applications. It is intended that the planning authority and the applicant will agree to a timescale for the processing of such an application and that they will take into account the views of statutory consultees. A project plan will need to be prepared that identifies key milestones and actions for all participants so as to ensure that the application is processed as efficiently as possible, given its size and complexity. The agreement will be on the way in which the application will be dealt with. As the member has indicated, the issue will be dealt with in secondary legislation.
Let me expand on that. We are also trying to drive culture change in planning. As I mentioned in our earlier discussion on community engagement, we want to front-load the system. Before a processing agreement for a major development is drawn up—such developments will also be subject to pre-application discussion with the local community—the developer will need to deal with the range of issues that Michaela Sullivan identified, such as water and sewerage, transport, education and environmental protection. All the key agencies and different local authority functions will need to be involved early on to ensure that the planning authority's information on the scale of the development factors in the impact that it might have on retail, transport and the environment. The intention is to ensure that such material is submitted up front when the application is submitted, rather than allowing developers to say, "Here is the application, and the retail assessment is in the post." It will be a matter of front-loading the system with respect to engagement with communities and key agencies, ensuring that what is a complex process is managed effectively. That will include milestones and targets.
You have mentioned waste in this context. I wish you to clarify that you are talking about various different kinds of development, perhaps including landfill, incinerators and recycling facilities. Would the NPF purely identify the capacity that is required, or would it specify developments? If the Committee on Radioactive Waste Management recommended the long-term, deep storage of nuclear waste, and if a site in Scotland were identified, would that facility be included as a national development in the NPF?
What I have said is that, under the national planning framework, we are talking about major strategic transport, water, drainage and waste management infrastructure projects. Those projects will of course be subject to all sorts of consultation. Jim Mackinnon could perhaps give us the technicalities on this: the projects would be identified, but to what extent would the place be identified?
The national planning framework deals with the spatial consequences of existing policy. On waste, it would deal with the consequences of established Executive policy. I would not like to be too specific at this stage on precisely what the framework will do, but it is certainly not there to fetter the discretion of local authorities on specific sites. For example, it would not say that a particular waste management facility must be at a specific location. That would be for the development plan or, if there is no up-to-date development plan in place, for individual planning applications. The whole idea is to specify developments that are required in the national interest and which reflect existing policy that has been established elsewhere. The national planning framework is there to provide some general endorsement of such developments.
If a recommendation came through for the deep storage of nuclear waste at a site somewhere in Scotland, I take it that there would be little site discretion by the time the planning stage was reached. Would the NPF include such a development as a national development?
The bill does not prescribe the type of development that may be included in a future national planning framework. We know what the current policy is in relation to nuclear waste. The Executive's position is well known: that there will not be new nuclear power stations until that matter is resolved. That will be decided beyond the gamut of the proposed planning legislation before us. The Executive will have to judge and reflect on any recommendations on dealing with nuclear waste.
I return to the subject of processing agreements, which I was dealing with last week. I asked Richard Hartland:
First, we are not in favour of gimmicks. One thing that cannot be said about the bill is that it is gimmicky. It represents a genuine attempt to address issues across a range of interests in Scotland, whether it is local community organisations' experience of the appeals system, the grey areas that we experience as elected members, or the frustrations of developers in managing an inefficient process. The bill does not confer special benefits on any applicant. In my understanding, it recognises that in major applications it is beneficial to have an agreement that identifies the process of getting from point A to point Z. A timescale for the processing of major applications is eminently sensible rather than gimmicky.
To be fair to Richard Hartland, he did not say that the exercise was gimmicky; he said that it
We are in the business of providing a high-quality service. The whole drive of the bill is to improve efficiency and community involvement. If the bill is deemed to be gimmicky, I would like to know by whom. One of the key issues that we must assert is that the bill is a serious attempt at addressing the challenges of the planning system. If there are gimmicks in the bill, we will need to strip them out. My contention is that there are no gimmicks. The bill is an attempt to create a more efficient planning system, which has the trust of local communities. If you put a stamp of gimmick on to something, you devalue a serious process. I will ask Jim Mackinnon to come in on the practicalities of the processing agreement. We are clear that no one can buy favours in the planning system. That is not the intention of the planning system. However, it is in the interests of everybody—including local communities and developers—that the system is efficient and robust and that it involves people at an early stage. That is why we have made a commitment to a development plan-led system.
I wish to make two points. First, there is a major project close to the centre of Edinburgh where the developer proposes a £100 million development. He has invested heavily in design, planning and transport consultants. The planning fee is probably in the order of £14,000 for a development of that scale. That does not seem to me to be a lot of money. It is not about buying permission. Secondly, I wish to emphasise the minister's point that processing agreements are not a gimmick. Major applications are important for Scotland. The Finance Committee's cross-cutting review of economic expenditure demonstrated clearly that those applications were not being processed as efficiently as they should be.
The possible confusion about paying more to get a better service has arisen because the way in which planning fees are calculated is based on the concept of cost recovery. If you acknowledge that the major applications will have a longer developing process, in effect you acknowledge that the cost of that longer process will inevitably be higher. You cannot get away from that fact. The fee for that longer process will be higher, but it will still be based on the principle of cost recovery. It is not buying a better service; it is paying for the service that is being received.
At the risk of sounding like Jeremy Paxman, Richard Hartland said that the purpose of a processing agreement
I certainly disagree with the way in which he put it.
Meeting suspended.
On resuming—
I reconvene the meeting. I noticed that the minister tried to do a runner during the break, but we managed to get her back for the second part of the meeting.
I move on to pre-application consultations and predetermination hearings. We know that the Scottish Executive's main policy objective is to strengthen public participation in the planning system. We also know that developers and communities often have very different perspectives on what constitutes meaningful consultation. How can that divergence be bridged by pre-application consultation?
The different experiences of consultations and the assumptions that developers and local communities make add to the hostility and challenge that we all face in our local communities when we deal with difficult planning processes. I am keen that we get the message to developers that they must reflect on what local communities think of them. That is not to say that all developers are bad, but some communities' experience of some developers has been so poor that we need good developers to engage hard with the consultation agenda to address the situation caused by those developers who have a bad name. That will strengthen the developers' position in terms of the quality of their work. They have to see that their part of the arrangement is to engage genuinely rather than have to keep being pushed by people.
We want to move away from the stereotypical situation where a developer submits an application and then consults the community on it to one where there is a proposal for an area and there is engagement with the community on how that proposal will evolve. As the minister says, there is a distinction between a situation where people do not want development per se—whether a housing development or something more controversial, such as a waste management development—and a situation where there is a proposal for housing and people are told that the access and density might be different and there is provision for affordable housing. There will be an audit trail from the community engaging with the initial ideas on a development to the actual planning application. The development industry will have to undergo a significant culture change if it is to mainstream consultations as opposed to seeing them as a bolt-on extra. The objective is to move from consulting communities on applications that have already been submitted to engaging with communities so that they can help to shape the proposals.
I would welcome that, if it is the outcome of the legislation. However, we already have pre-application consultation on issues such as telecommunications masts. Communities have brought petitions on that to our attention, and we might speak about them later this morning. My experience—and local community experience—of that consultation is that it is not as effective as it should be. For example, a community might want a telecommunications mast to be moved to a green site a couple of hundred yards away from the proposed site, but the applicant might feel that it cannot take that proposal on board. Would you expect that to happen with pre-application consultations?
Telecommunications masts are a good example of the challenges that the bill throws up for everyone. There will be those who resist the notion of a mast being sited anywhere near them, and they are entitled to take that position. However, no matter how good the consultation or how good the developer and how well it has engaged with the local community, the stark fact remains that those people will not want a mast anywhere near them.
There is also a need to share and roll out good practice wherever it is happening.
Local authorities or planning authorities would have the consultation statement, which gives information on any undertakings that were given. The statement forms part of an authority's material consideration of an application. We do not see councils having a formal role in pre-application consultations. Of course, planning authorities already have a role in holding pre-application discussions with developers—indeed, such discussions are common. Having a discussion with an officer is not the same as having a council decision, although I think that people recognise the difference between the two. On balance, our view is that it is not necessary for authorities to have a formal role in pre-application consultations. What is important is that planning authorities reflect on what is said in consultation statements.
Do you believe that predetermination hearings will bring added value to the planning system? Many of the provisions on them have been left to secondary legislation. To which type of development will they apply?
Jim Mackinnon will come in on the second part of the question and give the detail.
I cannot add much to what the minister said. The categories are very much as she explained: applications for developments that are significantly contrary to the development plan, that require an environmental impact assessment or that have been designated as large-scale bad neighbour.
This is a major area. I believe that the minister used the word "controversial" to describe it, and referred to public participation and direct representation in a transparent process. However, given that the third-party right of appeal has been dismissed, predetermination hearings must work and people must have faith in them. On the intention behind the bill's provisions, Malcolm Chisholm says in his letter:
As we have said, the introduction of a statutory requirement for planning authorities to hold hearings and the provision of best practice guidance in the form of a planning advice note should ensure greater consistency in authorities' practice. Indeed, we have reflected that balance elsewhere. One theme that has emerged from today's meeting is the importance of the need for a balance between local authorities' rights and decision-making capacity, and their ability to act consistently and justify and be accountable for their decisions. Obviously, there will be some tension there, but I feel that we have struck the right balance. However, we—and I am sure local authorities—would resist any extra, bolt-on processes that local authorities would simply have to go through. The measures are purposeful and will support local authority decision making, and they should not be taken lightly and without regard to the good practice that we have identified.
With respect, minister, I did not allude to the guidance being a bolt-on. My question was about how to ensure consistency if planning authorities have discretion. If there are many objectors to a planning application, the local authority might use its discretion to take the view that, because the objectors have similar views, it will hear only two of them.
My point is that consistency and discretion must be managed together. If we simply wanted consistency, we would tell councils what to do, but that would not deal with the points that I discussed earlier with Scott Barrie about rural and urban differences or the different pressures that arise for authorities such as East Lothian Council and Glasgow City Council. We do not need to have just one or the other; we can accept the challenge of providing consistency and discretion. We are trying to strike a balance between what is decided at the centre and the extent of local authorities' discretion. I contend that the balance that we have achieved is right. We hope that the best practice guidance and the planning advice note will be reflected in planning authorities' actions—I did not suggest that you think they are bolt-ons. I am saying that, in our discussions with local authorities, we will be clear that the guidance should be seen as an integral part of the system and should therefore be taken seriously.
I want to build on the minister's point about the diversity of local authorities in Scotland. There are 32 different councils with planning powers, plus two national park authorities. In Clackmannanshire Council, every member is on the planning committee, but authorities such as the City of Edinburgh Council and Glasgow City Council have development control sub-committees. Argyll and Bute Council, Highland Council and Aberdeenshire Council operate area committees. Given those differences, it is important that we do not impose a single approach throughout Scotland. As the minister said, we are looking for a consistent approach, not central prescription.
I believe that predetermination hearings already take place in Scotland. What research has been done on the operation and impact of those hearings and on how members of the public perceive them to work?
I am not aware of our doing any systematic research on that, but we will work with stakeholders to consider how we can build on the successful examples in Highland Council, the City of Edinburgh Council and parts of Ayrshire. We need to consider the process from the local authorities' perspective and from the perspective of people who have engaged with it. As usual, we will work with local authorities, based on the information that they have provided us, but there will be opportunities for people to comment. To return to one of the minister's fundamental points, although the arrangements to hear a range of views might be adequate, people might not get the decision that they want—they may disagree with the fundamental decision.
That is understood and taken as read. As predetermination hearings operate in some areas, it might be useful to ask the public what they feel about them, as part of the consultation process.
I recall that, some time ago, we audited East Ayrshire Council's planning service, which included predetermination hearings. As part of that audit, we worked with stakeholders in local communities. On some aspects of the system, such as the time and place of hearings, the comments were favourable but, on other arrangements, such as the process that was to be followed, the comments were a bit less certain. We have anecdotal evidence on the hearings, but not systematic research.
In public local inquiries, there may be multiple objectors with similar but not identical objections. In such cases, the reporter tries to persuade parties with similar interests to combine their representation at the inquiry. The reporter's discretion is not the same as the discretion that the planning authorities will have, but it is similar. The system seems to work well, although I suspect that there are no statistics on that and that the evidence is anecdotal. However, the concept is not new.
My point is simply that it would be good for the Executive to consult members of the public who have been involved in predetermination hearings to see what they think.
Although we have not done any systematic research on that, we understand that City of Edinburgh Council and South Ayrshire Council have reviewed their hearings procedures and, because they think that there is much to commend them, they are proposing to continue with them, with minor adjustments. We know that individual local authorities have views on how their arrangements are working, but we at the centre have not conducted any systematic research on them. There is a body of expertise on which we can build in formulating a system that will be consistent throughout Scotland, but which will allow local authorities to exercise discretion on the basis of the circumstances in their areas.
Would it be useful to ask the City of Edinburgh Council and South Ayrshire Council to write to us with their views and to tell us what they found out from their communities?
I would hazard a guess that, given that the authorities reviewed their procedures in discussion with the people who used them, and that they decided to continue to use them, they were not told that they were rubbish.
All local authorities were given the opportunity to respond to the contents of the bill as part of the committee's consideration. If they wrote to us, the information that they provided was supplied to committee members.
We are very keen on the measure, because it will give people confidence. We see local authorities as having a key role in carrying out neighbour notification in order to strengthen public confidence in the planning system and provide more effective public participation. More consistent and reliable neighbour notification of planning applications will help in that regard. We thought that the planning authority was best placed to conduct such notification.
All the evidence that the committee has heard from community groups, developers or local authorities is that they welcome the proposal and think that local authorities should have responsibility for neighbour notification, because that will build back into the system confidence that people have been advised of a planning application. COSLA's main concern is about funding. Are you confident that the planning finance working party will come up with a solution to ensure that local authorities will be able to recover the costs of issuing neighbour notifications and will not have to find the resources to fund that new financial burden?
There is an issue about increasing application fees to reflect the higher costs that planning authorities will incur in carrying out neighbour notifications. We acknowledge that there will be a cost and that the whole bill has implications in relation to fees, which will have to be factored in. Local authorities will have to acknowledge the importance of their planning authority role in their own budgets. They have to be engaged in considering that. We acknowledge that there will be higher costs and we are trying to flesh out exactly what they will be.
I think that the local authorities' concern is that, although the cost of processing a straightforward, simple planning application is not great, a considerable number of neighbours might have to be notified. The one-off fee that the developer will pay might be quite small relative to the number of individuals and organisations that a local authority will have to contact. Local authorities think that that fact needs to be acknowledged.
I hope that such points and the implications for cost will be explored in discussions on the implications of the proposal. In addition, local authorities should benefit from having an effective neighbour notification system, even in terms of a reduction in the volume of traffic that is generated by folk saying that they have heard about something that they were never told about themselves and asking why that has happened. Things that have been done poorly create unnecessary work for local authorities. If the system was more efficient, and if people were clear about proposals, the planning authority would benefit.
COSLA raised a point, to which you alluded, about the sensitivity that would be caused by failure to notify those who live in a property of a proposal and the ability of individuals or groups to appeal to the local government ombudsman. Such failures might lead to spurious appeals. Of more concern is the possibility that they could lead to considerable delay. Are you concerned about that? Will the existing ability to appeal to the local government ombudsman, on the grounds of maladministration by a local authority, be retained?
I do not think that there are any proposals to reduce people's capacity to appeal to the local government ombudsman, which is an important protection. However, we recognise the implications of local authorities having responsibility. If a local authority is not fulfilling its responsibilities because it has not developed the procedures that would enable it to do so, that is very different from an authority not being able to fulfil its responsibilities because of inappropriate resources. That is what the planning finance working party and others are trying to address. It is not in our collective interests, nor is it in the interests of local authorities, to have a proposal without the means for local authorities to deliver it. We should also be mindful of the separate issue of authorities doing their business properly and being accountable for that in the normal way.
Will those who appeal a decision under the proposed schemes of delegation have confidence in the system, given that the same statutory body that made the initial decision will be responsible when it comes to the appeal?
We would not have proposed that if we did not think that that confidence could and should be retained. We should be able to place confidence in local authority decision making. The review will be done before an independent group of people who were not party to the original decision, and who we believe should be able to review that decision and either confirm or reverse it on the basis of the facts of the case. It is an important step to say that we want issues to be decided locally if at all possible and that, where there is a scheme of delegation, we want any appeals to be subject to local decisions.
Do you think that there might be further scope for deterioration in the relationship between elected members and planning officials under the scheme of delegation, compared with some of the tensions that exist at the moment?
The capacity of elected members and officials to rub along, even when they do not agree with each other, is evidenced at all levels of government, to be honest. People have different roles. We have to assert the primacy of elected members, who have a critical role in representing their communities and who are challenged with responsibility in so doing. Planning officials bring to their positions their expertise, professionalism and commitment to their local area. It is not to decry officials' professionalism for an elected member to disagree with them. That mature relationship can and should be developed. It is about recognising where authority lies and where the professional provision of information and advice lie. I do not think that our proposal compromises that any more or any differently in the case of elected members being given advice and choosing to act differently.
The process for each local authority setting up its scheme will involve the Scottish Executive before the scheme is finally agreed by the local authority. Is that the best approach? Is the approach intended to ensure consistency in decision making and in the way in which the different schemes throughout Scotland are set up?
Yes. It is important that people have confidence in the scheme of delegation. Given the need to balance the different layers of responsibility, authority and discretion, we felt that the approach that is outlined in the bill was the best way of ensuring that people would have confidence in the scheme of delegation that a planning authority proposes.
Under the bill, planning permission duration will be reduced from five years to three years. I can see some arguments in favour of such a reduction in that, alongside other measures, it might help to provide greater certainty to communities that are affected by proposals. However, we have heard concerns from developers, who have pointed out that certain types of development take much longer than three years because of factors that are outwith their control and outwith the control of the local authority. How does the minister respond to that concern?
I recognise the member's acknowledgement of the significance of our approach. We want to limit uncertainty for communities by reducing to three years the time period within which a development that has been granted planning permission must be implemented. Planning authorities will have discretion to extend or reduce the period within which developments must be begun. For developments that take longer than three years to progress, the bill provides for flexibility in the duration of planning consent in those circumstances.
Does that flexibility give rise to the possibility of another round of conflict over whether discretion should be exercised in a specific case? How can that be resolved?
That is the challenge of this approach. The bill will reduce the duration of planning permission to decrease uncertainty, but all sides recognise that we still need flexibility. I do not think that that nullifies the decision to reduce the time period. As a general rule, the period will be three years, but we recognise that flexibility will be needed for exceptions. However, local authorities will be required to be transparent about why they use that flexibility.
I am happy to leave that square circular.
The bill proposes new enhanced enforcement powers for local authorities, but COSLA pointed out to us last week that local authorities will need more resources to use those powers. Is the minister sure that local authorities will have sufficient resources to use the new enhanced powers?
My general point about resources—that we cannot ask people to do things and then not will the means for those things to be done—applies here as it does elsewhere. However, local authorities should reflect on the priority that they have given to planning and enforcement and on whether their planning budget has grown in line with the growth of the general local authority budget. I am keen that enforcement is recognised as a significant priority for local authorities. The resource challenges can be met through dialogue between the local authority and the Executive.
COSLA suggested that the Executive might consider using fixed-penalty notices to deal with serial offenders—developers who, I am sure, are small in number but who constituency members know about—whose practices leave a lot to be desired and who regularly breach the terms of their planning consent. Did the Executive consider that measure and rule it out, or is it something to which you would be prepared to give further consideration?
As I said, enforcement is critical, not just in dealing with a problem on the ground but as a deterrent to that problem being replicated elsewhere. To me, enforcement is significant. It is not just about dealing with the individual; it is about sending out a message about the credibility of the planning authority and its conditions and its authority to tackle somebody who disregards what it says.
We were grateful for a letter that explained a bit more about variations. Can you elaborate on how you can develop a range of criteria against which a planning authority can establish whether a change is sufficiently substantial to require a new application? That is a sensitive area. One problem with the current planning system is that people think that they will get one thing and they get something else. Is that a matter for guidance or secondary legislation?
The measure regarding the variation of application enhances the transparency of planning decision making. It will ensure that any changes to planning applications are made public and that substantial changes will not go through without the submission of a new application. The bill sets out a framework around an applicant's ability to vary his or her application during its processing. He or she will have to agree any variation to the proposal with the planning authority. Secondary legislation will define the circumstances in which variation is permissible. If the planning authority thinks that a variation is so great that it will change the proposal substantially, it will not agree to it and a new application will have to be made for the revised proposal.
Okay, so we are talking about secondary legislation—regulations that will assist us further with this.
It will have to be defined but, for example, a change of use class could be an obvious trigger. If someone submitted a mixed-use application for a retail unit and flats, and a subsequent change included a pub and restaurant in one of the retail units, that would be an obvious trigger for a new application to be made. A pub and restaurant would belong to a different use class from that which had originally been applied for. It will be possible to establish some fairly obvious triggers around changes from one use class to another.
What about density of development? What if an application was for 100 houses and then—hey presto—that suddenly became 150 houses?
That is where having up-to-date and effective development plans will be important. A development plan allocation should give an indication of the number of units that are acceptable on a site, and one would expect the application to accord with the development plan. A subsequent application for a development of massively increased density would probably be a reason for refusal rather than further negotiation.
What if, after the application had been lodged, there was variation at a later stage in the process?
If the variation at the later stage in the process rendered the application subsequently out of line with the provision of the development plan, that would be a reason for refusal rather than a trigger for a new application.
I ask Christine Grahame to make her question short, as time is marching on.
I will make it so short that you will hardly notice it, convener.
Yes.
Will that be sufficient to make the public aware that there has been a variation, in order that they can engage in the discussion about whether it is substantial or otherwise?
I defer to the professionals on the panel with regard to the details. I hope that community engagement and involvement will give people a better insight into what happens at different stages of the process, what they should be aware of and what they should look out for. I hope that they would be aware of the register and be able to see what was in it.
We could establish trigger points for renotification if a variation was considered substantial. We will probably have to consider that in more detail in the development of the secondary legislation.
Are you satisfied with that, Ms Grahame?
Not really, but time presses. I put down a marker for that.
Why does the bill give a right of appeal, in proposed new section 75B(1) of the Town and Country Planning (Scotland) Act 1997, against a planning authority that declines to amend a planning obligation agreement?
Developments evolve over time, and the planning obligations or agreements may lose their continued relevance. There needs to be a mechanism for securing changes to planning obligations; that mirrors the mechanisms that are in place for the amendment of conditions that are attached to a consent.
I could you a practical example of that.
That would be helpful.
The proposed new section gives a right of appeal if the planning agreement requires the construction of an access road or the provision of money, for example, and the developer feels that he or she has discharged that obligation and would like that to be reflected in an up-to-date agreement but the planning authority refuses to do that. It is not about asking the planning authority to review something when it does not want to do that; it is about whether the developer has discharged an obligation under the terms of the agreement.
Okay, I understand that. That is helpful.
Consultation on the proposed planning gain supplement is on-going. I am sure that people will have contributed to that consultation and highlighted what they perceive as its implications for Scotland. One point that strikes me about the measure is that it runs with the grain of what we understand by planning gain. As we understand it, the idea is that planning developments should result in a broader community gain. The proposal is for a tax, but it is related to what we understand as planning gain. The regulation of section 75 agreements is a devolved matter. We will consider the emerging proposals closely to decide whether to take action to change the way in which section 75 agreements are managed.
The idea of unilateral obligations seems odd, because an obligation is something that one party places on another party. I have asked various witnesses about that. Malcolm Chisholm's letter on secondary legislation talks about unilateral obligations, but also about unilateral undertakings, which may be a clearer term. However, an issue still arises about the value that will be placed on such undertakings in negotiations. Will the local authorities determine the value of a specific undertaking in negotiations? If we allow developers to give unilateral undertakings, they and communities will be unclear about the value that those undertakings have in negotiations. Local authorities might also be unclear and feel that they have less discretion to impose other conditions or decline an application.
Unilateral undertakings will be almost part of the appeals process. A point is sometimes reached at which a developer has made what it feels to be a reasonable offer to a local authority, perhaps on education contributions. In my experience, a local authority tried to get the developer that I worked for to pay for an entire school. The offer that we made was to pay enough to cover all the children whom we thought that our development would generate to go into the school. There comes a point at which negotiations reach stalemate, because the local authority seeks one measure, while the developer is prepared to offer another. At present, that leaves a difficulty in the inquiry procedure, because the reporter has before him just the two conflicting positions. The unilateral undertaking will allow the developer to put its offer to the local authority on the table. The reporter will then have information on which to base a judgment on whether it would be a reasonable section 75 contribution. If the reporter sides with the local authority, that could be a reason for refusal, but if he feels that the developer's offer is reasonable, he can find for the developer on the basis of what has been set out clearly.
The measure seems to weaken the local authority's hand somewhat.
At present, in an appeal, unless the undertakings are in place at the inquiry—which happens rarely, if ever—if the reporter decides that planning permission should be granted, an intentions letter is issued, which says that he is minded to grant permission, but that the subject of the agreement should be negotiated with the planning authority. In the case of recalled appeals, the Scottish ministers can do that. The negotiation process can take months and months of endless wrangling. We propose that, if, for example, a developer wants to contribute to a school, the offer will be put before the inquiry so that the reporter can adjudicate reasonably and proportionately in the circumstances. The reporter can then ask the authority and the developer to finalise the agreement on the basis of a clear set of parameters, rather than say simply that planning permission is granted and that the two parties should go away and negotiate a section 75 agreement.
Are you saying that the measure will come into play only at the appeal stage?
Yes, although the applicant can offer to make a unilateral obligation, along with the submission of their application. By and large, the measure will be most effective at the appeal stage.
Okay. I may return to the issue.
The committee heard that the Executive consulted widely on the majority of proposals in the bill. However, you did not consult on good neighbour agreements. Why was that?
I guess that it was one of those good ideas that came too late for the consultation. In effect, stage 1 provides the opportunity for the issues to be explored fully. The omission was not wilful; we simply did not think of it in time.
What are the benefits of good neighbour agreements?
We support good neighbour agreements as a way of promoting a stronger role for communities in monitoring the way in which developments are undertaken. They will give communities access to more information about a development and facilitate better communication between the parties in order to address issues of concern and avoid disputes.
How will the agreements be enforced?
Good neighbour agreements provide another option for improving the operation of developments, because of the potential for greater community involvement. They can be wider in scope than planning obligations or conditions. For example, the provision of information to the public on site access would not necessarily fall within the scope of a section 75 agreement or condition.
How will you ensure that good neighbour agreements will add value to the process and be of benefit to the community and developer? Ultimately, who will be the arbiter in any dispute?
The point about a good neighbour agreement is that it is an agreement, which means that there is engagement between the parties. In our experience, some communities do not have that at the moment. People cannot be forced to enter into a GNA, but they go along with our drive to have more discussion and communication at every stage of the process. The good neighbour agreement fits into the different approach that we are taking to the question about what the role of the developer or community is.
The convener asked why we did not include the good neighbour agreement in our initial consultation. As you know, we have done a lot of consultation on planning reform. The question of having such an agreement was raised in those consultations. We saw an area in which the community engagement and enforcement agendas that we are pursuing coalesced neatly, and that was a key driver to include the agreements in the bill. Ministers have spoken of the bill as a once-in-a-generation opportunity to reform the planning system. We felt that we had to take this step. Saying that we would introduce the measure in five years or so would not have been the right approach to take.
You say that the agreements can be enforced through the courts, but who will resource communities to do that? Often, when something goes wrong, communities have legal redress through the courts. However, if they do not have the finances, their ability to use it is severely hampered. Often, the communities that are most adversely affected are the poorest and most disadvantaged in the country. Even with the best will in the world, they cannot raise the money to mount a legal challenge.
That is why the purpose of the planning bill is to respect and engage with communities at the earliest stage and to put a far higher value on environmental justice. The weakest and quietest should not be more likely to become the repository of every development that nobody else wants. The challenge of the planning system is to deal with the things that nobody wants but which everybody needs. The environmental justice thread of the legislation should be recognised, as it gives balance to the different voices in the community.
I agree with you about the stages at the beginning of the process, but I have a slight concern. Say we have a community that is willing to engage with the local authority and the developer, for example about a landfill site—I do not know why that springs to mind. That community is willing to contemplate such a facility coming to its area. The developer wants the site badly; the local authority wants it badly too, to fulfil its obligations. Everybody signs up to the plans and to a good neighbour agreement. What happens when the developer has done everything that it agreed to do? The developer ultimately wants to get its way, but the community is left with a good neighbour agreement, which is theoretically enforceable in court but financially unenforceable because the community cannot raise the money to take legal action against the developer.
I stand to be corrected, but I would have thought that the critical stage comes when the developer, the community and the planning authority discuss the application and decide that certain things will be insisted on as a consequence of the development. That is not a good neighbour agreement; it is conditions being put on the planning application. When people are round the table, they cannot agree to something that they have no intention of delivering later. We recognise the broader point that the convener has made in the past about the cumulative impact on communities; therefore, it should be recognised more broadly in the planning system that everyone has to have a bit of the pain, if you like.
That is right. One should not see planning conditions, section 75 agreements and good neighbour agreements as pointing in different directions. One would expect lorry movements, blasting or types of material deposited on a site to be properly reflected in planning conditions and under section 75. The reality is that most of those things would be enforced by the planning authority. As the minister said, there are arrangements to toughen enforcement in relation to things like joint working with the fiscals about the quality of evidence that is required and the consideration of fixed penalties in certain circumstances. Ultimately, there is the choice of going to court and getting a £20,000 fine, which is a sharp deterrent.
I have a couple of technical questions. First I might be wrong, but given that good neighbour agreements will be contractual, how will local authorities have any locus unless the agreements contain an enforcement regime? I cannot see how they will. The councillors who gave evidence last week thought that it would be good if local authorities could enforce the agreements, although they would need resources to do so.
I do not see good neighbour agreements as being substitutes for planning conditions that will be enforced by local authorities.
I did not say that they would be.
One approach does not necessarily conflict with the other.
Communities are groups of individuals who come together, so I am not sure whether it would be appropriate to use legal aid regulations. My gut reaction is that a better approach would be to have something parallel to enforceable planning conditions that would give the local authority rights of enforcement within the planning system.
Would that address the fact that a local authority would have no locus under the current proposals?
Yes. In a sense, there would be parallel provisions.
The minister is right to say that we are dealing with developments that we all need but that no one wants in their back yard.
As I have said, we do not expect communities to live off the back of good neighbour agreements alone. In addition, there will be a planning and enforcement regime that we are determined to make effective. It will not be the case that communities that cannot get developers to the table to formulate good neighbour agreements will have to accept whatever comes their way.
The use of performance bonds is not uncommon in planning in Scotland; indeed, a number of local authorities already use powers in that respect, particularly with regard to opencast coal and mineral mining.
Good neighbour agreements are not and should not be an alternative to planning conditions. However, from my interpretation of the proposals, the agreements will often cover issues such as the relationship between the developer and the community. Such issues often leave either a bad taste or a good taste in the mouth of the community. My concern is that if what is included in the good neighbour agreement is not lived up to, that will add to the resentment that could be felt in a community about what people had been led to believe they could expect from the developer. It is important to recognise that.
If good neighbour agreements are to be seen as reflecting a change of attitude, with developers and communities coming together, developers must understand how significant it would be if a developer were to enter such an agreement with no intention of upholding their side of the bargain. That is what I was talking about earlier when I mentioned developers rising to the challenge of the bill, and the new culture that that will bring about. In the case of opencast coal mining, the people who work the coal have understood how damaging it is to their reputation to be described as some communities have described them in the past when their experience has not been positive. I would have thought that the very fact that developers will enter good neighbour agreements reflects a change in attitude, but they will need to understand the consequences for their reputations of entering such agreements but not living up to them. Bad experience of one developer could drive people to believe that all developers are of a kind, and that that is the nature of the beast. We challenge developers to understand the consequences of not engaging seriously with that process, but I believe from the discussions that I have had that many of them understand those challenges.
In my final question on good neighbour agreements, I would like to advise you of what the Law Society of Scotland told us. It is not necessarily a view that most members of the committee would agree with. It is the Law Society of Scotland's belief that communities do not have the wherewithal to engage in the process of establishing good neighbour agreements. I do not think that that is the case, because I have constituents who are more than capable of engaging actively in the process and of advocating well on behalf of their communities. Does the Executive share the Law Society of Scotland's concern that communities might not have the wherewithal to engage in that process? If so, how can you give them the ability to do so?
Through Planning Aid for Scotland, we have given communities advice and support in engaging with the process. As we have already indicated, we want communities, through the proper community engagement and empowerment, to understand the system. I refute the Law Society of Scotland's suggestion that communities do not have the capacity to understand the system and that they require lawyers to speak on their behalf.
I turn to advertising. The committee has heard concerns that the cost of advertising and the way in which development plans and planning applications are advertised in local papers are not conducive to people engaging with the planning process. What consideration has the Executive given to how we might ensure that people who need to know about development plans and planning applications are involved in the process at an early stage, and that we do not waste resources but instead target them at the right places?
There is a broader point to be made about the language that we use to describe what applications are and how accessible they are—I mean literally accessible, in terms of the format in which adverts appear as well as in terms of the language in which such adverts are couched. I know that, from a legal point of view, people have to be precise with the language that they use, so I can understand the extent to which people are thirled to that, but we must also recognise that such language can exclude people. Adverts can be put in local papers and people could be supported in understanding the significance of the advert so that they are happy to play a community advocate role—which sometimes happens—and to be used as a way of getting information out to people.
Has consideration been given to abolishing the need for local authorities to advertise in the Edinburgh Gazette, which they claim no one apart from planners reads? People who should be involved in the planning process do not read that publication.
A few years ago, we issued a consultation paper entitled "Getting Involved in Planning", in which the idea of no longer advertising in the Edinburgh Gazette was mooted. We are happy to write to the committee to explain what we consulted on and what the reaction to the suggestion was, but I recall that we decided not to proceed with it because the Edinburgh Gazette is a useful source of information. People who do not happen to be represented locally have legal representatives who consult the publication. Tim Barraclough may have more to say on that.
A new factor is the advent of e-planning and the role of electronic advertising. It has been suggested that electronic advertising should replace the current advertising requirements, but because of issues of equality and access to the internet, it is far too early to proceed with that suggestion. However, we will keep the matter under regular review to ensure that advertisements are in the proper formats, are accessible and meet the requirements of the bill.
My final question is about the conditions that are attached to planning consents and whether people know that planning consent has been given for a development. I understand that, in the United States, outside sites housing developments and new landfill sites, huge billboards are placed that advise people about the planning consent and the conditions that are attached to it. Is the Executive willing to consider such an approach? People become aware of developments only when they see them happen. Making it easy for them to identify the conditions might be a positive contribution to the process.
That is an interesting and useful idea, especially in relation to enforcement. If people do not know what the planning conditions are, they cannot take the first step towards highlighting that a condition has not been complied with. Perhaps a billboard outside a building is a touch more accessible than the Edinburgh Gazette.
The practice that the convener described is also common in continental Europe. Billboards indicate the identity of the architect, the landscape architect and the engineer. It has been suggested to us that we may want to consider ensuring that copies of the approved plans are available for inspection, so that there is no dispute about the plan that is being built to. However, we must be careful, because we do not want to encourage people to wander around building sites, opencast coal sites or mineral operations when they are not suitably protected. The idea is worth exploring, but we must take such action in a way that does not compromise public safety.
In section 26(2) of the bill, proposed new section 160(1A)(b) of the Town and Country Planning (Scotland) Act 1997 mentions
We propose to define the phrase effectively—we would not dream of doing it in any other way. You will be happy to know that, subject to further discussion with stakeholders, we intend to define "cultural or historical significance" in guidance. The definition is likely to include examples, such as a tree's being the oldest surviving tree of a particular species in Scotland—I think that I have visited our oldest surviving tree—and of trees that are linked to the history or culture of an area, such as the Douglas firs in Perthshire.
Okay.
You are supposed to say that that is marvellous.
This will be brief. Will you include ancient woodlands? In the Highlands, the question has arisen of ancient woodlands being used for developments that tend to relate more to what is below the ground than to what is above it. Will ancient woodlands be covered by tree preservation orders?
Yes. The bill includes provisions that allow tree preservation orders to be served for historical or cultural reasons, the meaning of which will be clarified in guidance. That will offer new protection for ancient woodlands or special trees, such as the oldest living example of a particular type. It is also our intention to introduce secondary legislation to make the Forestry Commission Scotland a statutory consultee for applications that involve more than 0.25 hectares of felling.
Thank you for that. You will have made a man in Nethybridge very happy.
I have lived for this moment—it is the first time I have made anyone happy.
I just wish that you had made a man from Dunfermline happy. Highland Council has apparently expressed concerns about whether it will still be possible to promote a tree preservation order with an outer boundary without specifying individual trees in the woodland. Will that be possible?
We consulted on tree preservation orders, which will be in secondary legislation. It is clear from the responses that a plan that identifies trees is regarded as a key element of such orders. Several responses stressed that the plan should identify and reference specific individual trees, stating their species, and recording their age and condition. We envisage taking that approach, rather than just identifying an outer boundary.
Of the extra money for the bill, £2.7 million is identified in relation to tree preservation orders. What benefits will be provided by that quite large expenditure?
The money is not just for tree preservation orders. The tree officers will have not only that statutory function; they will have wider responsibilities, which we should all welcome, relating to management of open space, landscaping and other environmental issues. We have to consider not only cost but benefit. There will be benefits in savings as the system becomes easier to use. It will be for local authorities to determine the number of staff they need to carry out the range of functions, which might be different in different parts of Scotland.
On improvements, one of the major problems is not only preserving trees but getting rid of, or controlling, the nuisance hedges that exist in certain parts of Scotland. Would it be possible at stage 2 to introduce a scheme that would examine the problem?
In line with the extremely important work that has been done by Scott Barrie, we have taken the view that the issue of high hedges is a nuisance issue rather than a land-use planning issue and so has to be dealt with in those terms. People who have uncontrolled hedges or trees ought to be dealt with because they are creating a nuisance; the issue is not intrinsically to do with the tree itself. The issue could be addressed through Scott Barrie's bill on hedges, for which we have indicated our support.
I am imagining an antisocial behaviour order being slapped on a high hedge, but I will move on.
We are indeed reaching the last lap of a marathon. It might be worth mentioning that I have run a marathon. The feeling was not dissimilar to the feeling that I have at the moment, although when someone runs a marathon they do not usually run another one the next day.
How will assessment improve the planning system? As an addendum to that question, how will you engage with the public in the assessment process so that they know what is going on and are part of it?
Assessment of planning authorities is important. More rigorous audit and intervention are intended to stimulate authorities to make improvements to planning services a higher priority, to provide the basis for sharing good practice, to give ministers the opportunity to intervene where performance failure is persistent, and to improve public confidence in the system, which relates to the second part of the question. That reflects the balance that we seek to strike in our relationship with local authorities. There is a great deal to be done and we must work positively with local authorities. We must understand the challenges that they face and we must support them, but we must also recognise that it is reasonable to expect planning authorities throughout the country to meet certain standards and to be consistent.
Public confidence in the process is critical. For the past few years, we have run a system of non-statutory audits and a key part of that process has been engagement with stakeholders—including local architects and developers, but also community representatives—on what they think of the service that they get. Much of the debate with communities is on objections to individual planning applications. We need to take the debate out of that environment and to think about quality of service. Can people access planning officers? Is enough time allowed for committee hearings? Do people feel that they get adequate opportunities to participate in hearings? We want to build on that engagement.
Is there a role for Audit Scotland in that?
We discussed the proposals with Audit Scotland, which has a great deal of expertise in methodologies for assessing performance. We will work with Audit Scotland to develop our methodologies. We think that there is a specific issue in respect of planning functions. There is a case for systematic focused effort to consider the functions of planning authorities in more depth and more regularly than would normally be the case with the reports that Audit Scotland produces under the best-value regime. We need something a bit more detailed than that. Audit Scotland is happy with that approach.
Are you suggesting that Audit Scotland could do that?
No.
Who will do it?
We are considering the options. Scottish ministers will be responsible for establishing who will undertake the audit programme. The options include the Scottish Executive Development Department, which already conducts the administrative, non-statutory audit function, and there may be other options. The bill gives the Scottish ministers the power to allocate the task to whomever they think appropriate.
In that case, who keeps the keeper? Who guards the guards? Who will audit the performance of the Scottish Executive, which is the ultimate planning authority?
The Scottish Executive is ultimately accountable to Parliament.
I knew that that was coming. It was a soft ball at the end.
As ever, we are mindful of the electorate, to whom we are all accountable. It is important for the Scottish Executive to engage with everyone in the planning system as opposed to sitting atop it and saying, "Now you sort it all out." That sense of the different levels of Government and communities working together to change the planning system sits strongly with the committee's discussions and the responses to the bill from people throughout Scotland. It is certainly reflected in the Executive's commitment to the aims of the bill.
Audit Scotland has a role in relation to the operation of the Executive—Audit Scotland might throw a less soft ball.
Audit Scotland certainly has a role in relation to other parts of the Scottish Executive's work.
Why should ministers and not local authorities set the fees?
Your question returns us to a theme of our discussion. We want to revise the entire fee structure to reflect the new hierarchy, to ensure that authorities can cover a broad range of costs and to allow for higher fees for retrospective applications. However, we want to strike a balance. There should be consistency; it will be important for people to know that equivalent applications will be treated in much the same way throughout Scotland.
I appreciate that, but given that local circumstances might be different, will you consider introducing fee bandwidths instead of having a one-size-fits-all approach, to allow some flexibility?
The key is consistency, although we acknowledge that there is diversity among local planning authorities. We anticipate a comprehensive review of the fee system in due course and all such proposals will be considered in the round. It would be interesting to hear the arguments for the approach that you describe and to consider how heavily those arguments weigh against the crucial need for consistent fees throughout Scotland.
In effect, a bargain is being struck: if planning authorities are more effective, developers will swallow the larger fees. Given that research from Ove Arup and Partners, for example, suggests that local authorities underresource their planning departments, is there a danger that increased fees will simply go into the existing black hole? If that happens, what recourse will there be?
As is the case for all local government spending, there must be transparency. I have probably flagged this up already, but if a local authority indicates that it will give priority to its planning function, will it match that commitment with priorities in its budget and dialogue with the Executive about those priorities? There will be a review of planning fees and an improvement in the planning system should be part of that process. However, other factors will have to come into play and we are not talking simply about increased funds to manage a system that is not geared up to the new challenges. The new system will present challenges for everyone.
What recourse will there be if a local authority does not perform?
We have indicated that our first step would be not to attack local authorities with sanctions, but to try to work with authorities to enable them to improve, because local authorities have a central understanding of their communities' local development needs. However, for major applications there will be processing agreements that set out a timetable for dealing with the application, and the fees for administration costs, and we have indicated that if that timetable is not met half the fee should be returned. We do not propose to extend that approach to other applications, although that is a small measure that could be taken. In the long term, the reaction to recommendations that emerge from the audit should give confidence to people who pay planning fees.
It was suggested to the committee—albeit by just one source—that change-of-use planning permission should be a requirement for the development of houses in multiple occupation. I think that the matter came up during the passage of the Housing (Scotland) Bill. In another context it was suggested that second homes should be treated in the same way. Does the Executive have a view on that?
I do not want to comment on second homes, but I am much exercised by issues to do with HMOs. I do not think that the suggestion is the right one, but I will take advice on the matter. We are very interested in how local authorities view the role of the planning system as well as the licensing system in that context. The matter was flagged up during the passage of the Housing (Scotland) Bill. We recognise that some local authorities might need to identify through the planning system the number of HMOs in their areas, which is a different activity from saying whether an individual flat would pass HMO licensing. We are in dialogue with local authorities and others on that and we will report further on it at a later stage.
Will you report on it before we reach stage 2 of the bill?
Very much so. The HMO issue was raised with us previously and we have provisionally organised a seminar on it for next month. The issue is restricted to a number of small areas, such as parts of Glasgow and Edinburgh. HMOs also have an impact in towns such as St Andrews that have a substantial student population. As the minister said, there is a lack of clarity about the relationship between planning and licensing and a lack of understanding about how the various systems operate. We will have a session on HMOs next month with a range of organisations and MSPs to discuss the issues and whether we need to legislate.
It might be helpful if a written report of that seminar were provided.
I would be happy to do that.
One of the difficulties in St Andrews and other places is that large numbers of HMOs are found in a single area, which can affect the long-term public provision of schools, for example. There are also other, different uses of public facilities that have implications. Those who are worried about the number of HMOs in a particular area want some balance, so that local services are not completely altered and local authority provision is not constrained in certain aspects.
We are aware of the particular challenges of HMOs in certain cities and towns, such as St Andrews, which have large universities sited in them. Some of the challenge can be explored through the planning system, but some of it self-evidently cannot. We were keen to ensure through HMO licensing that properties are safe to live in. However, we recognise that there is a separate issue about what HMO licensing can do to the nature of a particular area. We are trying to explore with local authorities and others whether dealing with that is a matter for legislation. If it is, would the provisions sit most appropriately in this bill or would they sit better somewhere else? Could the same aim be achieved by simply observing good practice? Could it be done by different bits of local authorities—the planning bit and the licensing bit—talking to and engaging with each other? We seek to explore such questions because we recognise that the HMO issue is important for many people and that no easy solution to the problem has been provided so far.
When the Crofting Reform etc (Scotland) Bill is considered there will be discussions about the pressures on crofting land for housing development. Can you clarify whether crofting community plans or general planning procedures take priority when a decision is made about the ultimate use of crofting land?
We live in interesting times because of that bill. Certainly, I have a strong commitment to crofting, which is important to some of our communities. The planning system and the crofting regime both regulate the use of rural land and they need to work together properly to deliver the best options for land use. We would need to consider whether the Crofters Commission should become a statutory consultee for development planning and management. Such issues would be dealt with in secondary legislation.
In expecting the two planning areas to work together, would you expect any crofting community plan to be included in the local development plan so that it would have the same degree of consultation as other kinds of development in Scotland?
I am not going to stray into technical areas where I am not clear how bits fit together. I know that the issues to which you refer are current. However, we are clear that the Crofters Commission would have a role in reflecting a view on a development plan. I do not know whether any of my officials wants to add anything.
Not really. I think that the crofting plans go much wider than statutory development planning and will raise issues about land management and so forth. Certainly, the evidence that we have so far suggests that planning authorities and the Crofters Commission work reasonably closely. They are separate systems, but they need to dovetail and nest together as much as possible. We are not aware of big issues in this area, but if particular issues arise we are always interested to hear about them. As the minister said—
I do not want to labour the point but, although I am sure you will agree that working relationships have been good in the past, the provisions of the Crofting Reform etc (Scotland) Bill increase the potential for housing development. People are concerned that housing development could come in by the back door, instead of going through the normal planning process.
There is no question of decisions on the planning merits of cases being affected by the Crofting Reform etc (Scotland) Bill. Applications for planning permission will have to be submitted and determined in the normal way.
That is fine. Thank you.
A number of petitions—particularly petitions on phone masts, terrestrial trunked radio masts and landfill sites—have argued that health should be a material planning consideration. Similarly, a petition on sewage sludge called for a health impact assessment to be included as part of the planning process. How can concerns about the impact on public health of particular types of development be taken into account as part of the planning process?
We are straying into very difficult ground—or interesting and challenging ground. As I think people are aware, health could, in principle, be a material planning consideration depending on the particular case. For cases in which potential impacts on health are acknowledged, other control procedures are already in place—through the legislation on building standards, pollution control, discharge consents, and health and safety, for example.
You are correct in suggesting that many people in communities have serious concerns about the health implications of phone and TETRA masts and landfill sites. Years ago, concerns were expressed about the environmental impacts of certain developments in and around our communities, and the Government decided to introduce environmental impact assessments to go along with planning applications. In a similar way, could all health-related facts not be gathered together in one report to the planning committee?
That is still a different matter from health fears that have not been backed up by evidence.
You suggested that you might have the Crofters Commission as one of the statutory consultees. Would health boards also have a role as consultees? In the list at present you have the Scottish Environment Protection Agency, Scottish Natural Heritage, enterprise companies, Scottish Water and the regional transport partnerships. I understand why they are on the list, but would health boards have a role too?
We have said that that list is not finished and set for ever. If a case can be made for particular organisations to be included, they will be considered. One of the things that is slightly different—I will take advice on it because I do not know if it applies to health boards—is that agencies of the Scottish Executive will not be dealt with in the same way. They have a different way of feeding in their contribution and of being consulted. I am not sure whether they would be captured in that way.
Minister, what progress is being made on the review of the general permitted development order? Will the public be provided with the opportunity to be consulted on developments such as telecommunications masts that fall within the general permitted development order category?
That is important. People recognise that if there is a hierarchical system, things should be done at all levels of the hierarchy, but what should happen at the lower end of the hierarchy might not be as straightforward as we might initially think. Some things can be quite difficult for folk at a local level. In recent times, one of the big frustrations has been developments that have been captured by the general permitted development order.
Thank you. Minister, I am sure that you will be relieved to know that that concludes our questions for you this morning. Thank you for your attendance and for your willingness to remain until we had covered all the issues that we wanted to cover.
Meeting closed at 13:17.