Planning Law (Enforcement)
The final item of business is a members' business debate on motion S3M-2011, in the name of Iain Smith, on the enforcement of planning legislation. The debate will be concluded without any question being put.
Motion debated,
That the Parliament notes with concern the difficulties faced by planning authorities, such as Fife Council, in attempting to deal with breaches of planning legislation through enforcement and stop notices; considers that development without the appropriate planning approval undermines the rule of law and the planning process and that the present planning legislation does not provide a sufficient safeguard against unlawful development; believes that appeals against enforcement or stop notices should not be permitted on the grounds that planning permission for the development would have been granted or that a planning application for the development has been submitted; further believes that there should be a presumption against approval for any development that has been carried out without the appropriate planning approvals, and desires further debate on these proposals.
I thank the members who signed my motion and enabled me to secure this evening's debate. I also thank members and the Minister for Transport, Infrastructure and Climate Change for staying behind to participate in the debate.
I sought the debate to highlight what I consider to be a serious weakness in our planning law that can undermine public confidence in the whole planning process. Unauthorised developments and breaches of planning conditions are not uncommon occurrences, but they can cause considerable anxiety and frustration to neighbours and communities, not least because of the apparent inability of the planning authorities to take effective action to prevent them. That can lead to the impression that those who are responsible for the unauthorised development are getting away with it. Indeed, there are times when it seems that some unscrupulous developers are trying it on—deliberately flouting planning laws by developing without planning permission or breaching the conditions of planning permission in the knowledge that they will probably get consent retrospectively for something that may have been turned down or accepted in a different form had they gone through the proper channels.
I will give members a couple of recent examples from my constituency. Last autumn, a number of constituents contacted me regarding the unauthorised use of land at Fordelhill farm near Wormit. Even before a planning application had been submitted, work had commenced to develop the site as a permanent site for travelling people's caravans. Indeed, in the week following submission of the application, the site was already occupied by between four and six caravans. I stress that the issue is not whether the site should have been developed for travelling people but its having been developed without proper planning consent.
I contacted Fife Council, which is the planning authority, to find out what was happening, and was advised that the council was
"continuing its efforts to ensure that development does not take place in advance of the planning authority giving consideration to the planning application."
As I am sure that members are aware, there are a number of mechanisms that the planning authority can use to try to prevent unauthorised development. The main ones are enforcement notices and stop notices. However, those two measures have certain drawbacks that made them unsuitable in this case, where a quickly enforceable measure was needed to prevent further development of the site. Members will be aware that enforcement notices require 28 days' notice and can be subject to appeal, with one ground of appeal being that a valid application has been submitted. A stop notice can be used but only if an enforcement notice has also been issued. There can be claims for compensation against the planning authority if an enforcement notice is overturned on appeal. That can be a disincentive to local authorities to use stop notices.
In this case, the council opted for an interdict to prohibit further work on the site. However, there was a problem with the measure, because an interdict must be served on and can only apply to named individuals. In this case it was not possible to identify easily all the individuals on whom an interdict needed to be served. In the end, interim interdicts were served on eight out of 12 of the individuals for whom the council thought that was appropriate, but the development continued nonetheless and caravans continued to occupy the site.
By now, we were well into the spring and there was still no resolution in sight. An action for breach of interdict was raised by the council in March; all eight individuals concerned accepted that they were in breach and were subsequently fined. However, none of that prevented the continuing development and occupation of the site. The application finally came before the north-east area committee of Fife Council in May. Although in my view there were grounds for refusing it—not least because the developers' pre-emptive actions meant that a full assessment had not been done of both the need for and suitability of the site as a permanent travelling people's site in north-east Fife—the application was approved on the casting vote of the chair.
I have no doubt that part of the reason for approval was the feeling that there was little the council could do to undo what had already happened. The fact that the applicant had blatantly and deliberately ignored and flouted planning legislation and had already developed the site in a way that was not consistent even with the original application, or with the conditions that were imposed in the planning consent, could not be taken into account by the planning committee. There is evidence that the applicant is already extending the site beyond what he has received approval for. It is a clear example of the failure of the present enforcement procedures. The applicant was willing to take the risk of a fine in order to get the development that he wanted, irrespective of the planning considerations.
Another example of the frustrations that are caused by the present inadequate enforcement procedures is in St Andrews, where a taxi firm began operating in a residential area without planning consent. In that case, planning permission was refused by the council, and enforcement and stop notices were issued. The applicant unsuccessfully appealed against the enforcement notice but attempts to prosecute for non-compliance with the stop notice ran into problems with the electronic submission system that is operated by the Crown Office and Procurator Fiscal Service, a subject on which I asked a question in Parliament before the summer recess. The net result was that the unauthorised activity was able to continue in that unsuitable location for many months.
The present law does not provide sufficient sanction against those who choose to ignore it. It seems that many developers are willing to take a gamble on developing without permission, or on going outwith consent conditions because they think that they will probably get away with it or, at worst, face a relatively small fine. That undermines confidence in the whole planning system, particularly for the vast majority of applicants, who are law abiding and who have to jump through all sorts of hoops to satisfy the requirements of the planning system for developments that can be relatively minor.
The provisions of the Planning etc (Scotland) Act 2006, which was passed in the previous parliamentary session, will provide some additional powers to planning authorities, most notably fixed-penalty notices and temporary stop orders, but I am not convinced that those will provide sufficient disincentive, or that they will give planning authorities sufficient teeth to tackle those who are willing to take the gamble. That is why the motion suggests a couple of ways forward. First, it surely cannot be an acceptable ground of appeal against an enforcement notice that an application has been submitted, or that if one were submitted it would be likely to be accepted. An enforcement or stop notice is intended to prevent further development before a proper application has been fully considered and its purpose is to ensure due consideration of an application. However, to provide a real disincentive, it should be made clear that if someone goes ahead with a development without approval, it is likely that that approval will be refused.
A presumption against development would be an extra hurdle that an applicant would have to jump before approval could be given. It would be for the applicant to show that there was good reason why they undertook development before receiving planning consent. There may be many such reasons. The applicant could have received the wrong advice from planning officers. There may be a need for urgent works on grounds of safety, or to maintain the fabric of a property. There could be a belief that planning approval was not required or had been granted. It would be for the planning authority to determine on the merits of each case whether those reasons were justified. However, in the interests of fairness and justice to the whole community, going ahead with a development for no good reason should not be allowed.
Those are just suggestions, and I would welcome any other ideas—from members or indeed the public—for improving the effectiveness of the enforcement procedure in Scotland. I thank the Parliament again for the opportunity to raise the issue, and I look forward to my colleagues' speeches and the minister's response.
Fife, which both Iain Smith and I, in our various ways, represent, was the place in which, with Patrick Geddes's famous proposals for the redevelopment of Dunfermline, submitted in 1896, modern town planning originated. Geddes had the enormous virtue of having his bright ideas just when a millionaire with a guilt complex turned up. Andrew Carnegie bankrolled the redevelopment.
Scotland has a planning tradition of which we are very proud. Yet, as Iain Smith has pointed out, that tradition has, in certain respects, a tendency to fall victim to Parkinson's law, in that we become obsessed with details and allow great infringements of our planning structures to pass by before we have the opportunity to intervene. An example of Parkinson's law is the committee that is studying a plan for a nuclear power station but spends most of its time discussing a bicycle shed. The nuclear power station is put through on the nod. Something like that is rather a tendency of Scottish planning.
In a previous members' business debate, I raised the issue of supermarkets. Some applications for supermarkets can go through because they have planning permission from long before as part of a land-bank strategy, but then the supermarket can open and alter totally the structures of the local economy and the way in which local businesses develop.
You and I, Presiding Officer, will have received solicitous letters inquiring about our views on the closures of post offices throughout the country. We may give those views, and may insist that the post offices in villages are not closed down. The village post office will often carry the village store with it, so its closure will infringe the county planning acts that were created to enable villages to be sustained and to survive. Nonetheless, as sure as fate, a decision will come back from the minions of the postal service to say that, regardless of what has been said—about Pathhead, or Earlston, or Greenlaw—the closures are going ahead.
I raise these questions not in order to consider bizarre areas of earlier planning law, but to make this point: if the planning structure is more often observed by negation than by actual development to keep abreast with modern society, the dodgy entrepreneur—the person with motives often on the edges of legality—is able to get past the planning structure.
I do not know whether other members remember a case from about two years ago when a small village in Lanarkshire found itself hosting a fireworks dump that actually had more explosives in it than the one that nearly wiped out the Dutch town of Enschede about four years ago. Somehow, the dump had managed to gravitate through the planning system. Iain Smith's points are valid enough, but how are we to combat such things?
The member should be winding up now.
We must not only ask for sharpness in local authority responses, but invigorate a much greater degree of local involvement in the way in which societies operate in communities and villages.
Members will find in the evidence of anyone from Fife that the number of protests from Iain Smith's region—the 12 miles or so around St Andrews—is greater than the number from almost anywhere else.
A stop notice has now been served on the member.
If this sort of thing can happen in Iain Smith's area, what possibility of redress is there in other areas of Scotland?
It is unfortunate that, on a Thursday evening, the issue of planning does not detain many members in the chamber. However, I congratulate Iain Smith on securing the debate. I empathise with the problem that he identifies but I did not sign the motion because I do not agree entirely with his conclusions.
I, too, have encountered a number of constituency issues in which a developer has commenced a development before gaining planning approval, and has submitted the application after the commencement, meaning that planning officers are unable to enforce any prior conditions because an application is outstanding. When neighbours have objections to such a development, it can be an extremely frustrating experience that can drag on for years.
In my constituency, there is an example of a lorry park on land that I think may belong to the Scottish Executive. Because the submission has been made after the commencement of the development, and because there was already development on the site, planning officers are unable to do anything about the development until the planning application has come before the committee.
However, I cannot agree with a presumption against approval—that is too draconian. On occasion, an individual might make a minor alteration to their own home that does not attract any objections from neighbours, but might make that alteration without realising that planning permission is required. As a councillor many years ago, I came across the example of the erection of a hut in the garden of a flat. A presumption against approval for all such cases would be inappropriate.
Another example would be somebody who installed central heating in their conservatory. They ought to get planning permission for that, although they may not realise it. It would be a bit draconian to refuse planning permission retrospectively purely on the basis that they had not sought approval in advance of constructing the conservatory.
The Planning etc (Scotland) Act 2006 has not yet been implemented in its entirety. On this issue, I urge the minister to implement the act in full. Perhaps he can explain why its implementation is taking so long. The act adds significant new powers to the enforcement process, such as temporary stop notices, enforcement charters and fixed-penalty notices, which should address some of the concerns that are raised in Iain Smith's motion. For example, temporary stop notices would require an immediate 28-day stoppage at an unauthorised development or where there is breach of planning control without the need for an enforcement notice to be served. The new provisions should be implemented, and their effect should be assessed and reviewed before we rush to new regulation. I do not think that we know, at this stage, that the 2006 act will not address the problems that Iain Smith has rightly identified.
One of the major problems in the planning process in Scotland is the lack of resource—in particular, the lack of human resource. The shortage of planners in local authorities results in long delays in the determination of planning applications. That can increase the temptation for applicants to anticipate the results of their applications, and it frustrates both the applicants and the objectors. Addressing the shortage of qualified planners must be a priority. Unless we have people who are able to progress the planning process in Scotland, we will never overcome the many planning issues that arise for both individuals and businesses.
I look forward to hearing from the minister the Government's views on how this particularly difficult problem may be addressed.
I, too, apologise to Iain Smith for not having signed his motion, on the same grounds as Elaine Murray—I do not agree with his conclusions. However, I welcome the opportunity that his motion gives us to speak about the issue in detail.
I always used to believe that planning was a complex process. However, having sat through stage 3 of the Planning etc (Scotland) Bill, I realise that planning is a simple process. It is only when one tries to apply or administer the process that it becomes extremely complicated and unwieldy. I suspect that that challenge will face us for ever more.
A brief that was circulated by the Scottish Property Federation contains in its conclusions a view with which I find some common ground. It states:
"we feel that the new planning legislation offers a package of measures that are superior to current Planning Enforcement powers and we question the need for any further powers before this new system has been tested."
I am prepared to leave it at that. Yet, there are one or two things that need to be addressed, which have been covered in the debate already.
There are numerous circumstances, which we perhaps cannot imagine, in which the absolutely draconian measure of presumption against approval in certain cases is acceptable. Also, inevitably, some situations will bring about breaches of the current regulation. As has been pointed out, frustration with a moribund system that struggles to cope with the demands that are placed on it can be enough to provoke some people to progress beyond the level of development for which they have permission.
I am concerned that we have heard at least one example from Iain Smith that was probably inappropriate for use in this context. As a result of problems in the north-east of Scotland regarding Travellers and Traveller sites, I have been made aware of the situation that he described in north-east Fife by my colleague, Ted Brocklebank. It is difficult for us to apply reason to situations regarding planning that affect Travellers and travelling people, as there are so many other things that have to be dealt with in those circumstances. Many illegal encampments have to be dealt with under other aspects of the law before we progress to using planning law in those particular circumstances.
As I said, I welcome the opportunity to discuss the matter. I am concerned that some people will abuse the system and overstep the mark deliberately. At the same time, many will not do that. Councils and some other departments are creating a problem if they are failing to apply retrospectively the same standards that they would have applied for any planning application. The idea that a building that has been constructed without proper permission should be treated differently is unacceptable, whether that is a positive or a negative for the developer or constructor.
The law as it stands should be given the chance to be used effectively and to demonstrate how effective it can be. I do not believe that we should revisit the matter and apply draconian conditions at this stage. Having listened to Iain Smith's speech, I believe that he gave a good argument for that—perhaps his motion contains one measure too far. I agree with his sentiments, but I cannot support the draconian conclusion to which he has come.
I thank Iain Smith for securing a debate on a subject that is of great concern to many people. I was happy to sign his motion.
Before being elected to Parliament, I spent more than 10 years on the area development committee in Dunfermline as a local elected member, so I have deliberated over many good and not-so-good planning applications. I have seen planning breaches on large and small developments and have visited sites where actual development was quite different from the approved plans. I found it extremely frustrating when, as councillors, we imposed limits on developments to protect the public and they were flouted by the developers. Council officials were all too often virtually powerless to stop them.
The eastern expansion of Dunfermline has led to the building of thousands of new houses in recent years. Over the past few years, I have received many complaints from residents about the way in which some developers are flouting planning conditions. The scale of development in my constituency in recent years has been so huge that Fife Council's planning department has not been able to keep tabs on all the developments to ensure that all planning conditions are being adhered to. I am not criticising the individual officers in Fife or elsewhere: they work extremely hard, but they do not have the resources that they need to do their jobs properly. Fixed-penalty notices would be useful as it would be much quicker and easier for planning officials to issue a notice than to prepare a prosecution. Of course, the fine should increase if there are subsequent breaches.
Some sites have developments built in the wrong position or a few metres too high on a slope. On a plan, that might seem to be a small deviation, but it can be devastating for neighbours, as it can result in them being totally overlooked, to the severe loss of their privacy. The law is often powerless to protect them. Working practices such as Sunday working or starting up large machinery much earlier than originally agreed can be upsetting for neighbours. Developers get away with such practices as they know that they will get only a slap on the wrist from the council, by which time the damage has been done.
The issues relate not only to new developments, because listed buildings are under threat, too. I remember a local case a few years ago when a landowner demolished a listed building so that he could use the stones from it to build a garage to house his fleet of cars. He was able to do so without being subject to any meaningful sanction.
The law makes it a criminal offence to carry out work on a listed building. The difficulty, according to the "Scottish Planning Enforcement Handbook", is that procurators fiscal and sheriffs do not take a consistent approach throughout Scotland. Even if a case gets to court, the handbook states that sheriffs are
"unlikely to impose a punitive fine."
The case of a shopkeeper in Edinburgh, who was recently fined only £400 for flouting council advice that his removal of an 18th century shop front would be illegal, proves that point.
Very flexible planning regulations and the severe lack of enforcement officers mean that developers who are so minded—they are in the minority—can flout the regulations to maximise their financial gain. Developers need to know that they will not be able to get away with that and that they will be subject to proper sanctions. Anything less undermines the rule of law and takes accountability out of the planning system.
I hope that the report on the Government's planning enforcement consultation, which closed earlier this year, will give us the opportunity to address breaches of planning legislation and ensure that the public can be confident that developers will be held to account if they break the law.
I thank Iain Smith for providing us with the opportunity to debate this issue which, although it has not attracted the greatest participation or, indeed, the largest audience, is important to people throughout Scotland and which the Parliament engaged with in a broadly consensual way when we introduced the Planning etc (Scotland) Act 2006.
I will be unable to make any direct reference to the couple of examples that Iain Smith used in his speech. One of them, in particular, is still an active case and, as a minister, I cannot therefore make any remarks about it. Any remarks that I make will not be connected to the examples that were put before us, but I will use the kind of cases that Iain Smith discussed to illustrate the general points.
We are looking at regimes for licensing taxi offices, and there will be a taxi summit later this year. That will be part of helping to control that particular type of business, outwith the planning system.
Chris Harvie made some comments about supermarkets. I will use that as an excuse to illustrate our determination to respond to breaches of conditions when it is our responsibility to do so. There was a supermarket in Dundee that—as was well publicised in the local press at the time—was intent on opening before some very significant conditions were fulfilled. We became aware of that on a Friday morning, and at 2 o'clock the same day we were in court, successfully securing an interim interdict. The supermarket appealed on Saturday morning but lost the appeal. The company was unable to open that supermarket for a significant period of time as a result of our intervention and we were able to gain the remedies that we needed to ensure that the public interest was protected. Of course, it is my officials who do the work; the minister merely consents to it happening. I hope that that is the kind of response that we will see across Scotland, and that our actions will help to ensure that that happens.
Elaine Murray and Alex Johnstone made it clear that the presumption to refuse would lead us into dangerous territory. Like them, we would like to see the 2006 act—over which we all laboured long and hard—settle down. Elaine Murray asked why that is taking so long. My answer is that the secondary legislation is quite complex, notwithstanding Alex Johnstone's suggestion that planning is really very simple. In principle that is true, but in practice it is anything but. We are undertaking serious consultation, but we are not far off being in a position to bring almost everything forward.
We recognise that the lack of human resources in local authorities is a constraint. On a number of occasions we have engaged with the industry and planners and we are looking for ways forward, although it is clear that that will not remedy the situation in the very short term because we cannot magic more human resources out of nowhere.
There are people who abuse the system. I think that the new provisions will make a significant difference to how those people are treated. The 2006 act expands and enhances the range of powers that are available to planning authorities. The introduction of fixed-penalty notices will provide an alternative to the lengthy process of seeking a prosecution if a developer fails to comply with an enforcement notice.
I assure members that it is our intention that the financial penalties will be significant enough to change behaviours. We have heard concerns in the consultation about the proposed level of fines. We continue to consider our response.
Temporary stop notices have been mentioned. They will enable immediate intervention and provide part of the remedy that today's debate has touched on. It is clear from the consultation that there has to be one exception: a temporary stop notice is not the appropriate intervention when it applies to someone's sole residence. That creates an issue when the sole residence is a caravan, but we have to strike a balance and we will bring forward further material on the subject later.
We are in full agreement on appeals against enforcement notices on the ground that planning permission ought to be granted. Mr Smith should note that provision was made in the 2006 act to repeal that ground for appeal. The provision will be implemented in due course.
At first glance, some of the proposals that have been made look attractive, but I think that it is appropriate to wait for things to settle down.
It has been suggested that most of the instances that we are talking about are accidental misunderstandings rather than deliberate actions. The deliberate will pay much higher prices in future. There is an element of unfairness in the present system, because people can bypass its requirements. The changes will mean that if someone applies for planning permission after they have completed a development, they will still have to go through all the same processes. Development without permission will no longer be a potential shortcut to achieving planning consent. That is appropriate.
We must also ensure that the use of powers remains at the discretion of planning authorities. We are clear in the Government that local decision making should lead on local issues, and planning is predominantly a local issue. I am confident that planning authorities will have the tools to provide fair, effective and efficient enforcement of the planning system. In doing so, they will help us to create a modernised planning system that will be trusted by everyone who is affected by planning and development and which will support the development of our communities and economy throughout Scotland.
Meeting closed at 17:37.