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Town and Country Planning<br />(Grounds for Declining to Follow Recommendations) (Scotland) Regulations 2009 (Draft)
We move on to agenda item 2, which is evidence from the Minister for Transport, Infrastructure and Climate Change and his officials, on draft regulations. During this agenda item, the minister and his officials can respond to members' questions. I welcome Stewart Stevenson and, from the Scottish Government, John McNairney, deputy director of planning; Stephen Hall, senior planner; Alan Cameron, senior policy officer; Norman MacLeod, senior principal legal officer; and Oonagh Gil, deputy chief reporter. I remind the witnesses that we have requested that they remain at the table until all the agenda items on subordinate legislation—items 2 through to 9—have been considered.
I very much welcome the opportunity to answer questions from the committee on the complete package of planning regulations that were laid at the end of last year. The regulations are required to implement a major element of planning reform and will, if they are agreed to, put in place a new planning system for development planning and development management, and a new appeals structure.
I offer committee members the opportunity to ask questions of the panel.
Good morning, minister. You were right all along—in comparison with this lot, the national planning framework is, indeed, "a rattling good read".
David McLetchie puts his finger firmly on an important point. That eventuality is extremely unlikely, because the professional people who are involved have the necessary skill set and do not get such things wrong. However, that distant and unlikely prospect exists in any system that is based on the work of human beings. In the tens of thousands of parachute jumps that are made every year, the reserve chute is used extremely rarely. The provision falls into the same category.
I will add just that we expect most of the people whom ministers appoint to be reporters from the directorate for planning and environmental appeals. As David McLetchie said, they will be extremely experienced in undertaking such appeals. The directorate is held in high esteem by the planning profession and is widely trusted. As the minister said, we expect the regulations to be called into play rarely.
I accept that and I agree with what you said about the quality and qualifications of the personnel who are likely to be involved.
Thank you for your kind words. Ministers can call in plans, when that is appropriate. Ultimately, whether the process was correctly applied can be reviewed in the Court of Session. Matters can be resolved through a hierarchy.
If the examination process had been followed, the local authority had declined a recommendation on the basis of a reason in the regulations and ministers were unhappy with the local authority's declinature, then they could call in the local plan and correct the situation. Is that correct?
At the end of the process, when a local authority wishes to adopt its plan, the authority informs ministers of that. Ministers then have 28 days in which to tell the authority that it cannot adopt the plan and to call in the plan for approval by ministers or to ask the authority to modify the plan.
So the local authority's decision is not necessarily the end of the road.
That is correct.
For clarity, the minister does not need to take action. The plan is adopted if the minister takes no action within 28 days. We should consider what has happened in the past and what would be likely to happen in the future. The minister will take no action if the plan is satisfactory; therefore, it would be adopted.
Will the proposals effectively restrict the grounds for declining to follow recommendations?
Currently, a reporter's recommendation might be set aside and not taken on board by the planning authority. The roots of the legislative change are in trying to ensure that the public have more faith in the system and are more willing to engage in the development plan examination process. Essentially, we are looking to restrict tightly the grounds on which planning authorities can set aside a reporter's recommendations. That is what the regulations will do.
I would like to confirm the thinking behind the regulations. Is the aim to make the public understand the process more clearly or to ensure that they have more confidence in it?
The objective is to ensure that members of the public can have more confidence in the system than they currently have.
That takes us back to where Mr McLetchie started. Professionals are engaged in the process. Therefore, we need clear reasons why their views have been rejected, and we need clear documentation on why. The regulations simply draw together what people probably think is a normal and natural way to deal with things in any event. They redraw the line of balance a little bit.
You have gone some way towards answering most of the questions that we wanted to ask. However, will you give a little bit of clarity on the current situation and the situation that we are moving to? Currently, a planning authority can set aside a reporter's recommendation on a local plan. Does it have to give detailed reasons for doing so?
We want people to explain at every stage of the planning process why they have reached their conclusions. That is an important thread that runs through what we are trying to do.
Does the Government currently have specific criteria that must be adhered to in setting aside recommendations?
If I, as a minister, approve or reject a recommendation, I must give reasons for my decision. The regulations will extend what should be done a little bit further.
As the minister said, under the current system, an authority can depart from any reporter's finding, but it must give its reasons for doing so, as it will have to do under the new system.
Are reasons for doing so laid down under the current system? Is there a set of guidelines that local authorities must follow?
No.
Are the local authorities unfettered? Can they cite any reasons they want for departing from a finding?
Yes. There is no description of what their reasons should be. Any reason can be given.
Right. So is this the first time that criteria will be set out for setting aside a recommendation?
Yes. That is correct.
I am interested in what Mr McNairney said about trying to instil public confidence in the process. What is the problem with public confidence in the planning process at the moment? Much play has been made of planning professionals and the public being against each other. In the past 18 months, I have been involved in a number of cases in which the public have felt that planning decisions have not gone the way they wanted them to go. How can we instil confidence in the public if the previous planning regime failed?
Because of their experience, I am sure that all members will understand that not everyone will get from the planning system the answers that they seek, whether they are seeking to promote or oppose a scheme. The debate is not about changing the nature of the decisions: it is about changing the nature of the decision-making process, so that the basis upon which decisions are reached is more clearly focused along auditable, understandable, documented and rational process paths. At the end of the day, the decision might not necessarily be different, but we should have a process that is clear about why the decision was reached. We will certainly never get ourselves to the position where everyone gets what they want out of the planning system, because that is not in the nature of planning.
I accept that not everyone will get what they want out of the planning decision-making process. I am trying to draw out how the proposals that are before us today will instil more confidence in any member of the public who engages with planning decision-making structures and feels that they will show no major difference from the existing procedures, apart from getting more detailed reasons for decisions, which I thought people who object to planning proposals already get through the local authority planning process. When a planning proposal is made, officers have to outline the reasons for accepting or rejecting it to applicants, local authorities and objectors to the proposals. I am just trying to get at what is so different about the new proposals compared to the existing regime.
One of the key issues is that, by defining the grounds for rejection and thereby not allowing open season for something to be rejected for any reason whatever, we are building confidence in the process and in the individuals who make the decisions—particularly the councillors—by giving them the protection of a rational set of reasons from which they can choose to reject a plan. That is as important as anything else, and it will build confidence in the councillors who make the decisions. Mr McNairney would like to expand on that.
For many individuals and communities, it takes a lot of energy, commitment and courage to engage with an examination process that can be quite daunting, particularly to a lay person. If, having committed to engage with the system, you complete that lengthy process and an independent report has made a clear-cut recommendation, it can be surprising and disappointing, and it can prevent you from engaging with the planning system in the future if the recommendation is set aside on a basis that you consider to be arbitrary. That is why I said that the regulations are, in part, about building confidence in the system. They will provide clarity by condensing to a few grounds the bases on which the planning authority can set aside reporters' recommendations.
As there are no other questions to the panel, we will move to the debate on the motion. I invite the minister to move the motion.
Motion moved,
That the Local Government and Communities Committee recommends that the draft Town and Country Planning (Grounds for Declining to Follow Recommendations) (Scotland) Regulations 2009 be approved.—[Stewart Stevenson.]
Motion agreed to.
Town and Country Planning<br />(Development Planning) (Scotland) Regulations (SSI 2008/426)
Agenda item 4 is consideration, under the negative procedure, of three items of subordinate legislation that are related to the instrument that we have just considered under the affirmative procedure. The minister and his officials will be able to answer any requests for clarification. As members have no questions on the regulations, are we agreed that we do not wish to make any recommendations in relation to them?
Members indicated agreement.
Planning etc (Scotland) Act 2006 (Development Planning)<br />(Saving, Transitional and Consequential Provisions) Order 2008 (SSI 2008/427)
The Subordinate Legislation Committee noted a single typographical error in the order, so an amendment order has been prepared. Consideration of the amendment order will follow immediately after our consideration of this one. As members have no requests for clarification on the order, are we agreed that we do not wish to make any recommendations in relation to it?
Members indicated agreement.
Planning etc (Scotland) Act 2006 (Development Planning)<br />(Saving, Transitional and Consequential Provisions) Amendment Order 2009<br />(SSI 2009/18)
The amendment order is required to correct a single typographical error that the Subordinate Legislation Committee noted in Scottish statutory instrument 2008/427. Do members have any points that they need clarified on the amendment order?
We should congratulate the Subordinate Legislation Committee on being so sharp-eyed that it noticed a missing "s". That is a great credit to the members of that committee and the assiduity with which they follow their brief.
Indeed—they were doing their job. As members have no further comments, do we agree that we do not wish to make any recommendations in relation to the amendment order?
Members indicated agreement.
Town and Country Planning<br />(Hierarchy of Developments) (Scotland) Regulations 2009 (Draft)
Agenda item 5 is consideration of an item of subordinate legislation under the affirmative procedure. Again, we will take evidence from the Minister for Transport, Infrastructure and Climate Change on the draft regulations. I invite the minister to make introductory remarks.
I will speak fairly briefly. The Planning etc (Scotland) Act 2006 introduced in primary legislation the hierarchy for planning and defined the three categories—national, major and local—to which all developments will be allocated. The draft regulations describe and assign classes of development to the categories of major and local developments. National developments are designated through the national planning framework. The hierarchy is at the heart of the proposals for planning reform and the intention is that it will encourage a more proportionate approach to processing planning applications, and focus resources on proposals that involve greater economic benefit or environmental impact. The approach concentrates on making the system more fit for purpose and efficient.
I have a brief question. When you decide on thresholds, there is always an issue about cases that are a little on either side of the threshold. In the classification of transport infrastructure projects, the cut-off point for major developments is a length of 8km. Why was that length chosen? When I first considered the issue, I thought about the new Forth road bridge, but that is in the national planning framework and is therefore not just a major development. However, other bridges that are less than 8km might be seen as strategic and therefore as major developments. How would those be picked up in the system?
The point that we must remember in any event is that you can treat things that fall below a threshold as if they were above the threshold if it makes sense so to do. Having had a little think about it, although the Clackmannanshire bridge itself is not 8km, I am pretty confident—although not certain—that when the roads on either side of the bridge are added you probably get to 8km. If it did not come to 8km, I would nonetheless think that one would be likely to end up deciding to treat it as if it had. The thresholds compel us to treat things in a certain way, but if the development is below the threshold we could still take the view that it should be treated as a major development. None of my officials is disagreeing with me.
Why 8km?
All the figures that are associated with the thresholds are subjectively chosen. We try to strike the balance of advantage, which is why it was important to find out during the consultation process what the right numbers are for the different thresholds to establish whether a development is major, minor, national or whatever. To some extent, it is inevitable that the figure is not objectively supported by evidence that it must be 8km rather than 8.2km or 7.8km, because it is not that nature of figure. That is why it is important that, after the draft regulations have been in place for a while, we review whether they are delivering the outcomes that we expect. We expect to start the review process after one year. The review will not necessarily lead to changes, but given that the figures that have been chosen are derived from consultation rather than having been scientifically derived, we will certainly keep an eye on the matter. The previous Administration—this was supported across the Parliament—decided that the matter should be addressed in secondary legislation so that we can refine and adapt the thresholds in the light of experience.
I used the 8km threshold as an example, but for each threshold, if a development is below the threshold, will it be ministers or the local authority that can decide that it is more important?
There will also be schemes of delegation. Local authorities will form their own views on what they want in a scheme, but it must be approved by ministers, so they are not distant from the decisions that local authorities make. It is clear that planning in central Glasgow is very different from planning in, for the sake of argument, Dornoch in the Highlands. There would therefore be no expectation that each of the 34 planning authorities would come up with exactly the same schemes of delegation. There is flexibility, but we have set out our stall in the draft regulations.
If something is classified as a major development—the draft regulations contain the criteria and guidelines according to which such classification will be made—is there a difference in how local authorities would consult the communities concerned?
The development management regulations, which the committee will consider following this item, set out provisions for enhanced scrutiny. They explain that, along with national developments, a major development would be a candidate for pre-application consultation of the community. Major developments that are significantly contrary to the development plan would, at the end of the process, be subject to a pre-determination hearing and a decision by the full council of an authority. There is therefore a link to how planning authorities will process major developments.
Efficiency is important to the communities involved. We are spelling out a plan that will promote efficiency in processing major developments and which will make it clear in advance how the process of decision making will be documented. People or bodies in the community who are engaged in the process of opposing the development will have greater certainty about how the development will be dealt with, and about timescales. That will not only help those who are involved in the planning process to prepare and to organise themselves; it will help those who are seeking to oppose the development to organise themselves and to structure their approach. It is important to bear it in mind that the process is not just efficient for the developer; there are potential efficiency benefits for opposition, too.
That is a useful point. In my experience, communities sometimes oppose developments, because they are sprung on them—the first thing people see is a poster on a lamppost. The provision of pre-application scrutiny and consultation could lead a lot of potential objectors to buy into projects, so I would encourage that as a positive measure for speeding up the planning process.
You are right to say that 50 is an arbitrary number. Mary Mulligan made a similar point earlier. We started the consultation process with the thought that 100 would be the right number, but the workshops that we held led to the conclusion that, on balance, the right number was 50.
The key is the plan-led system that we are trying to promote, in which communities are given a real opportunity to engage constructively in the process. It is difficult to predict whether a developer would want to submit an application for 49 houses to avoid the requirement for pre-application consultation, although I have to say that house builders increasingly accept the benefits to their scheme, and to the process, of engagement in pre-application consultation with communities. There is a lot of guidance out there, some of which we provided, on the best ways of doing that. The landscape is generally much more positive. There are, of course, benefits for the developer in putting in an application that is above the threshold, simply because of the focus on front-loading the system and processing the application through it.
Is it correct to say that minor developments will now fall outwith the scope of the planning system or will no longer require planning consent?
No, no—not at all. A separate piece of work relates to permitted development rights, which could be described as you suggested in your question, but it will come later. We expect a scheme of delegation to deal with many minor developments. Under such a scheme, the decisions will be made by officials, but the appeal process will involve councillors. Minor developments will certainly not drop out of the planning system.
In that case, do you plan a public education programme on that process so that the public understands the point that you just made?
We are delivering more powers and responsibility to community councils across the planning reform agenda in general. We will work with them, in particular to ensure that they understand their additional responsibilities and role in the system and are equipped to deal with it, because it is an important part of that agenda.
Once the regulations are in place, we will work on an easy-read guide to the new system in order to set out the principles more effectively for the general public.
Can we look at the hierarchy with reference to a specific example with which the committee is familiar? I ask the minister to confirm whether the application for the Menie estate development—otherwise known as the Trump development—would have been classified as a major development under the hierarchy, had it been in operation at the time.
I speak from memory, but I think that the number of houses involved in that development is substantially in excess of 50, which would elevate it from being a minor development. In that sense, it would certainly be classified as a major development.
If I remember the circumstances correctly, that major development was contrary to the local plan, and it would also be contrary to the local development plan under the new system. Is that correct?
I was not part of the decision-making process, although I could have been. The development was so close to the boundary of my consistency and was to have such an impact on it that I was not part of the process. As I know about the details only informally, I do not wish to take the risk of misleading the committee. Although I accept the generality of what you are saying, I speak more as a constituency member with an informal understanding than as a minister involved in the detailed consideration of any of the material associated with that application.
Your caution is welcome. For the purpose of this discussion, let us assume that the Menie estate application was a major development that was contrary to the local development plan, which I think we will find is the case. Would that mean that, under the draft regulations, a sub-committee of a council, pursuant to a scheme of delegation, could never again take the final council decision on the matter and that, were we rerunning the Trump application under the new system that is being introduced, the final local decision would be taken by the full council of Aberdeenshire Council and not by a committee?
Yes.
So we will have no more Trumps.
I am simply confirming the question about the specific process. My ability to look into the future may be more restricted than my ability to answer questions about the instruments that are in front of the committee.
We know how far sighted you are.
It is difficult to be precise, particularly in the current climate. Of the 50,000 planning applications that go through the system annually, half are householder developments. Between 4 and 10 per cent might be major developments, although it is difficult to predict how many will be submitted over the next year or 18 months.
I accept that it is dependent on the level of economic activity, but how many major developments were there among the applications that were processed in 2007, for example, when the economy was buoyant before the credit crunch hit?
The figures that we collect from planning authorities are based not on the hierarchy in the regulations but on lower thresholds. We take figures on developments of 10 houses and more, for example. However, about 5 per cent of last year's applications were major developments.
In broad terms, that means about 2,500 a year.
That is the figure that I have worked out.
I was heartened by your comment about engagement with community councils in the planning process, but those bodies do not cover all of Scotland. What remedies will be put in place to enable people to engage in the planning process in localities where there is no community council? Are you saying that the Scottish Government will campaign throughout Scotland for more community councils to be established to allow for local democracy in the planning process?
I suspect that, whatever efforts might be made, it would be impossible to achieve 100 per cent coverage. My constituency—I have no particular knowledge of other members' constituencies—probably has approximately two thirds of the community councils that it might have. I have a highly diverse constituency, with urban, rural and even remote areas.
The primary legislation requires that, before a planning application for a major development is submitted, the developer must give the planning authority notice of his proposal and an outline of the organisations that he intends to consult. The planning authority might request that consultation takes place with another body of interest in the community, in addition to the community council. Under the Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2008, to which we will come, the developer will need to carry out a range of consultation that involves holding one public event and advertising the proposal to hold such an event.
I welcome that response.
Councils have a duty to identify appropriate bodies. In my constituency, as well as those of other members, there are a number of community associations that are essentially indistinguishable from community councils. Some communities have decided, for whatever reason, to take that bottom-up route instead of setting up a community council under the aegis of the local authority. If there were a major development in Gigha, it is likely that Argyll and Bute Council would deem it appropriate to consult the Isle of Gigha Heritage Trust, which was responsible for the buyout there; the same might be true elsewhere. I would be surprised if councils did not want to involve community associations and tenants associations in the process.
As there are no further questions, and it seems that no member wishes to debate the draft regulations, I invite the minister to move motion S3M-3181.
Motion moved,
That the Local Government and Communities Committee recommends that the draft Town and Country Planning (Hierarchy of Developments) (Scotland) Regulations 2009 be approved.—[Stewart Stevenson.]
Motion agreed to.
Town and Country Planning <br />(Development Management Procedure) (Scotland) Regulations 2008 (SSI 2008/432)
Item 7 is consideration of three instruments under the negative procedure that relate to the instrument that we have just considered under the affirmative procedure.
Members indicated agreement.
Town and Country Planning <br />(Schemes of Delegation and Local Review Procedure) (Scotland) Regulations 2008 (SSI 2008/433)
Does any member have a question on the regulations?
How many local authorities operate a scheme of delegation?
All of them. I would like to bring in my official to say on the record whether the two park authorities operate such a scheme, given that they, too, are planning authorities.
One park authority has a scheme of delegation, but I think that the Cairngorms National Park Authority does not.
I thought that it was important to give a complete answer.
The national parks have different powers under the park orders.
At what stage do local elected members play a role in the scheme of delegation? How does a local member who does not agree with a decision on a delegated issue make that known?
The planning authority will agree on the scheme of delegation that sets the threshold up to which their officials will take decisions. The situation will vary throughout the country, as is the case at present. Under local government legislation, authorities have powers to operate schemes of delegation, although few of the current schemes allow officials to refuse applications. Under the new system, planning authorities will draft a scheme of delegation for ministers to endorse. Under such schemes, and subject to conditions that the respective planning authority will impose, officials will take decisions on local but not major developments. Depending on the number of objections that are lodged or representations that are made by community councils, officials will make decisions under the scheme of delegation.
You mention a review body. Will that be the planning committee?
The regulations refer to a committee of the planning authority that comprises no fewer than three members. Our original consultation proposal was that the review body should involve between three and five members of the authority, some of whom might be planning committee members. Following the consultation and workshops that we held with stakeholders last summer, we removed the ceiling, to give authorities more flexibility to establish local review bodies that are appropriate for their areas. In some areas, the membership might be small, whereas in other areas it might be larger. The regulations do not prevent the review committee from being much larger; that would be agreed by the planning authority.
The regulations permit a local authority to have multiple instances of the review committee, which might be required in geographically large areas such as Aberdeenshire and the Highlands, where council decision making has an area facet. The regulations allow but do not require councils to have several instances of such a committee.
John McNairney said that an applicant can appeal. If a planning officer takes a decision under delegated powers with which local elected members are unhappy, can councillors override that decision?
Once a decision is made, the question is whether the applicant appeals it. However, before a decision is made, flexibility is built into the primary legislation to allow the local authority to recall the decision—that is the terminology—for the committee or the full authority to make, rather than have a delegated decision. The mere fact that an application falls within the scheme of delegation does not require it to be determined by an appointed person. Planning authorities still have the flexibility to have a decision taken by a committee or by the full council.
That answer is helpful. Thank you.
I will ask about an issue that arises from the regulatory impact assessment, which says:
John Wilson asked two questions. The first was about holding a review every five years. The regulations say:
It will not be possible for the planning committee to revisit the decision of the local review body. The process is that the official will take a delegated decision on an application in the local developments category. If an applicant is aggrieved by that decision, they will seek a review by the local review body. The decision of the local review body will be final, short of an appeal to the Court of Session. That will be the decision of the authority on review.
I am not sure that it is because what you describe might muddy the waters slightly in relation to the local review body and the delegation of powers. You referred to an applicant whose planning application is rejected. Another aspect is what happens when a planning application is approved and objectors wish to object to the decision being made by the delegated officer.
It is important to go back to the point that there is no limit to the number of people who can be on the review body. When a planning application goes to the review body, it will be the first time that politicians will have considered it. If a local council decides that the membership of the review body should be identical to that of the planning authority, it will be a matter for that council. The regulations offer councils the flexibility to structure things in a way that they determine meets their needs. The only requirement is that at least three people should be on the local review body. I invite Mr McNairney to expand on that.
The planning committee will delegate to its officials the authority to take decisions on certain planning applications, as they do now. The key change that the 2006 act brought about is that there is a new scheme of delegation and a link to local review. Through the scheme of delegation, the planning committee will already have agreed which applications it has entrusted to officials to take decisions on. It is the challenge that is new.
Are there any other questions or points of clarification for the panel?
You just said that you would not expect the applicant to speak at any hearing that was held. Why is that?
At the moment, if someone is aggrieved at a planning decision, they can appeal it and they have a right to be heard, but the 2006 act changed that. Whether an appeal is made to ministers or a review is carried out by the local review body, the future landscape will be that the applicant will be asked how they would like their case to be dealt with, but they will no longer have an automatic right to be heard.
I understand that we want to move away from adversarial situations and I appreciate what the minister said about the difficulty of resolving planning issues when there are strongly held views, but I wonder about not involving all the parties, including the applicant. Perhaps that is an issue for another discussion.
I will try to deal with that point. The local review body must meet in public, even if it is considering how a case will be dealt with. In circumstances in which the local review body considered that a hearing was necessary, it would invite the parties that it thought needed to participate to come to the hearing and to make their views known. The regulations allow for that to happen.
Are we asking about appeals?
No. We have drifted a wee bit, but we are not quite at the appeals regulations.
We are going into quite a bit of detail, but I want to ask a more general question. When do you envisage that the changes under the 2006 act and the SSIs arising from that act will come into force? What information about the changes will be fed to the officials in the local authorities or planning authorities, to the members of those authorities, and to the public and community councils? What process is envisaged for all that information?
The key provisions on development management will take effect in August. We will revise and publish the circulars at the end of the current parliamentary process. We will then hold forums to promote the changes and discuss issues that practitioners and communities are concerned about. We will make more information available on our website and we have a database containing more than 7,000 contacts to whom we provide e-alerts of changes to the planning system.
As members have no more questions, are we agreed that the committee wishes to make no recommendation on the regulations?
Members indicated agreement.
Town and Country Planning <br />(Appeals) (Scotland) Regulations 2008 <br />(SSI 2008/434)
Do members have any points that need clarification on the regulations?
What volume of appeals do you anticipate, based on previous experience? How many of those are likely to lead to a hearing or an inquiry session? How do you expect the differentiation to be made between a hearing and an inquiry session?
Currently, the directorate for planning and environmental appeals deals with around 1,400 cases per year. Of those, approximately 80 per cent are dealt with through an exchange of written submissions or in writing. The remainder go through some form of oral process.
Am I right in thinking that the working assumption is that, if a local authority refuses permission for what is classed as a major development in the hierarchy of applications and the applicant appeals against that refusal, it is more likely than not that consideration of the appeal would be conducted through an inquiry session rather than a hearing session?
I certainly hope that the balance would be that it could be resolved without a hearing.
That might be rather optimistic, because in the scenario that I describe a major development, which falls into one of the categories that we discussed under the previous item, has been refused by a local authority. It is therefore almost certainly contrary in some respects to a local planning policy or has raised a considerable amount of local controversy. The likelihood of such an appeal not being considered in a public forum must be minimal.
Under the new regime, the expectation is that even with a major development we will look closely at the case, identify the issues that require examination and consider the best way to take evidence and consider it. It may well be that, for a major development, one part of the scheme is such that an oral process would be beneficial but other aspects that are in dispute may still best be dealt with through written submissions.
Although it may be wonderful to have such a hearing, we know from our parliamentary experience that the veracity and accuracy of assertions often require to be tested. We all know from experience of such situations that it is not unknown for people—in all good faith and because of their passionate beliefs about how their community should develop—to make, shall we say, exaggerated or inaccurate statements in the context of the consideration of planning applications. How are such statements to be tested in an environment in which everyone is just sitting around having a cheery little discussion, in the course of which people can make assertions one after the other without any kind of challenge as to whether their assertion is factually accurate or in any way consistent with other assertions that are being made in relation to the application?
I draw the member back to the process of dealing with the written submissions, when the submissions are put from one party to the other and there is a process by which the assertions are either accepted or rejected and reasons are provided for why that is the case. Mr McLetchie will be familiar with that process, which is a standard part of, for example, house buying, when it is decided what conditions will apply to offers and acceptances. Assertions will not escape unchallenged, however the issues are dealt with—there is a range of ways, which Ms Gil will address.
I would not describe a hearing as a cosy little discussion; they are reporter-led, reporter-managed events, at which the reporter's duty is to set the agenda and lead the discussion. That is to ensure that, at the end of the session, they have sufficient information to come to a conclusion. They are expected to challenge and follow up any arguments if they feel that there is a lack of clarity, or that people are not providing the full picture or are presenting it from a particular viewpoint. Hearing sessions allow for rigorous debate and discussion. As you can imagine, parties in that environment will still wish to disagree with each other, and they are invited to do so. The difference is that there is no formal cross-examination, as would be expected in a formal inquiry.
We are placing a heavy onus on the reporter, as the conductor of the discussion, to ensure that the assertions are properly tested, that the facts are put and that, if need be, people are challenged on their assertions. Can we be clear that the intention is to have a rigorous system in that respect, rather than one that simply takes at face value all manner of assertions—from whatever sources they might come—that have no foundation in fact?
My colleagues in the directorate are well used to rigorously assessing evidence from a variety of forums. The expectation is that they will continue to do so.
I am heartened. Thank you.
There are no further requests for clarification from members. I invite members to agree that they wish to make no recommendation on the regulations.
Members indicated agreement.
Town and Country Planning <br />(Amount of Fixed Penalty) (Scotland) Regulations 2009 (Draft)
Under agenda item 8 we will take evidence from the minister and his officials on the draft Town and Country Planning (Amount of Fixed Penalty) (Scotland) Regulations 2009. I invite the minister to make some introductory remarks.
The Planning etc (Scotland) Act 2006 amended the Town and Country Planning (Scotland) Act 1997 to introduce a new planning enforcement power that enables planning authorities to issue a fixed-penalty notice as an alternative to prosecution when a person who has committed a breach of planning control subsequently fails to comply with the requirements of an enforcement notice or breach of condition notice to correct the breach. The purpose of the regulations is to set the levels of such fixed penalties. Effective use of enforcement powers is a key element in ensuring that the planning system operates fairly for all involved.
One frequent complaint about enforcement is that local authorities have not had sufficient enforcement officers to carry out the role. A witness on the proposed national planning framework 2 suggested that we did not have enough planning officers per se—which is particularly important considering the SSI before us. Are you confident that there are sufficient planning officers to enforce the regulations?
We are adding to existing provisions by allowing an offer to be made to the offender—as we might call them—which that person may accept or reject. The regulations will, I hope, result in a lower burden on officers.
Are you happy that there are sufficient officers to ensure that enforcement is carried out? People often feel that that is where the planning system falls down.
The employment of planning officers is a matter for local authorities. We are seeking to remove burdens from officers so that they can focus on the things that matter most to people, and the regulations form a part of that process. Other parts of it, which I have referred to previously in committee, include permitted development rights, which will remove a lot of minor issues that currently take up a great deal of planning officers' time. The regulations must be viewed as part of the provisions in the round—they are a modest part of ensuring that the professional skills of the planning officers will be focused where they can be used to greatest effect.
What sanctions do local authorities currently have for a breach of planning control?
If there has been a breach of condition, a planning authority may serve a breach of condition notice, about 3,000 of which are served each year. A more serious breach of planning control could be dealt with through an enforcement notice—authorities currently serve about 500 enforcement notices each year.
I was wondering how many cases go to prosecution. How many come out the other side of the sausage machine with prosecutions secured? Fixed-penalty notices will be of benefit in less serious cases if the burden can be taken off the system. Can you give me some idea of the numbers?
I am sorry—I should have said this earlier. A very small proportion of cases are currently prosecuted: about five to 10 of the 500 enforcement notices find their way to the procurator fiscal each year.
We have been given the figures of 3,000 and 500, but we have not been given figures for stop notices. I do not know whether the Government collects data for the average fine that is imposed on developers but, given the figures that we are talking about and the fines that can be imposed, it would be useful to know the figures for local authorities. Is there uniformity among local authorities for the fines that are imposed? Is it up to each local authority to choose its own methods for determining the levels of fines?
I do not think that we know the levels of fines that are imposed in practice, but the figures in the regulations come to about a third of the maximum that may be imposed. That is the standard in the legal system—fixed penalties are normally a third of the maximum fine that might otherwise be imposed.
Depending on the size of the development—it can range from a small development concerning an individual householder to larger developments—the concern is whether fixed penalties are sufficient to deter developers as they proceed with a development. I want to test that point, but if we do not have the figures for the fixed penalties that are currently applied, we could review the matter at a later date.
It might be modestly helpful for me to mention that one further piece of legislation is coming. It relates to the use of temporary stop notices, which are a particularly useful tool in flagrant breaches, and will provide that, without the necessity of going to the court, a stop may be put in place, and the financial clock starts to tick. We have had some slight drafting issues with those provisions, which is why they are not part of today's package, but once they are added to the armoury we will have an effective set of interventions available to us.
There being no other questions from the committee, we move to agenda item 9, which is to debate the motion on the regulations.
Motion moved,
That the Local Government and Communities Committee recommends that the draft Town and Country Planning (Amount of Fixed Penalty) (Scotland) Regulations 2009 be approved.—[Stewart Stevenson.]
Motion agreed to.
I thank the minister and witnesses for their attendance and their evidence this morning.
Meeting continued in private until 11:45.