Section 15 — Manner in which applications for planning permission are dealt with etc

Planning etc (Scotland) Bill: Stage 3 – in the Scottish Parliament at 9:45 am on 16 November 2006.

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Photo of George Reid George Reid None 9:45, 16 November 2006

Group 18 is on community right of notification and third-party rights of appeal. Amendment 123, in the name of Jackie Baillie, is grouped with amendments 124, 127, 128, 85, 129 to 135, 157 and 158. I draw members' attention to the pre-emption information that is shown on the groupings.

Photo of Jackie Baillie Jackie Baillie Labour

Unusually, I will start by telling the chamber what amendment 123 is not. I do so because there is an enormous amount of mince—[ Laughter. ] I am sorry; I did not mean to say "mince". There is an enormous amount of misinformation in the ether. This is not the third-party right of appeal by the back door. If members do not believe me, they should consider the comments of RSPB Scotland on our amendment:

"This process would not introduce a third party right of appeal regime. While this is not our preferred solution to the problems inherent in the planning system it offers a constructive way forward with minimal inconvenience to the development industry."

To label community right of notification as a form of TPRA deliberately misunderstands our proposals. Community right of notification is not anti-development and it is not anti-business. I come from an economic development background and I do not want to stifle development. It is about transparency, fairness, and involving communities in a strategic way where their input will be valuable and appropriate. It is about ensuring that we have the best possible planning system. We have a once-in-a-generation opportunity to ensure that the planning system is fit for purpose for developers and communities.

Amendment 123 is a joint effort from me, Sarah Boyack and Pauline McNeill. It has been developed during the past year and it reflects soundings that were taken from a variety of people such as planners, senior lawyers, members of the Faculty of Advocates and communities themselves. We applaud the Executive's intention to give communities the opportunity to participate at the very start of the planning process. That is entirely sensible, but we also want to give communities a say before consent is given.

A community right of notification mirrors the requirement that is placed on local authorities to notify ministers of planning applications that merit call-in. That is not new, nor is it rocket science. We are working with the grain of what already exists in legislation. The criteria for notification by a local authority are already set out in regulations under the Town and Country Planning (Scotland) Act 1997. The Executive indicated its intention to expand the criteria to include all local authority interest cases, major and local developments that are significantly contrary to the development plan, and developments that require an environmental impact assessment. That is all welcome.

Our proposal would have minimal additional cost, as local authorities are already required to notify Scottish ministers. The Executive anticipates that more notifications will come from local authorities as a result of the expanded criteria, rising from 350—the current figure—to 800. So, again, we are working with the grain of Executive legislation.

The procedure would be relatively simple. First, a body would have to be registered as a community body. Our amendment clearly sets out that criterion for registration and gives ministers enabling powers to make regulations in that regard. In order to trigger a community right of notification, a community body would be expected to have objected to the planning application in the first place and, within seven days, the local authority would have to notify the community body of its intention to grant permission. Within 14 days, the community body would have to get back to the local authority with its views on whether the application should be called in.

One organisation has suggested that we would be adding at least seven weeks to the process, and that—horror of horrors—the minister would have a period of 28 days in which to consider the matter, which could be extended. The last time that I counted, seven and 14 made 21—that is three weeks, not seven weeks—and the minister currently has 28 days in which he can consider matters, which period he can extend under existing legislation. We are not, therefore, proposing anything different. Let us keep things in proportion.

I want to make two points in closing.

Photo of Jackie Baillie Jackie Baillie Labour

Our proposed approach is proportionate. It would not create a third-party right of appeal or cause unnecessary delays, but it would deliver certainty for communities, for local authorities and—above all—for developers.

I move amendment 123.

Photo of George Reid George Reid None

I am sorry to hurry members along, but I must get everybody in. Speeches from now on will be three minutes at maximum.

Photo of Euan Robson Euan Robson Liberal Democrat

Amendments 124 and 127 seek to place in the bill the concessions that were helpfully made by the minister at stage 2. Those were that certain local authority interest cases and significant departures from the development plan would, henceforth, have to be notified to Scottish ministers. At stage 2, the minister said that

"planning authorities will be required to notify other applications, including certain local authority interest cases" and that,

"as soon as possible after the Planning etc (Scotland) Bill is passed ... a new notification direction ... will require all significant departures from development plans to be notified, irrespective of the scale of local objection."—[Official Report, Communities Committee, 13 September 2006; c 3928-9.]

It is important that those two requirements are placed in the bill to increase public confidence, because those two areas of public concern generate most of the calls for a third-party right of appeal. The automatic notification procedure is quicker than the appeals process and thus meets one of the bill's key objectives of speeding up decision making. My amendments are designed to cover those two areas but still to allow ministers to set out in regulations the parameters of both requirements. For example, it should not be necessary to require local authorities to notify all interest cases, such as the siting of a mobile classroom.

I recognise the effort that Jackie Baillie and her colleagues have put into the construction of amendment 123. It has the attraction of community involvement. Perhaps the additional power and responsibility might even stimulate a welcome growth in the number of community councils, as there are still places where there are none. However, I consider the amendment to be, ultimately, flawed. Say, for example, that an elected community council accepts a planning application but a recognised community body does not. Are we to prefer the view of an unelected body to that of an elected body from the same community? In any event, as notification will be automatic in particular areas of concern such as local authority interest cases and departures from the development plan, as well as being more swift than the process that is set out in amendment 123, are there enough grounds for concern to add that new process to the bill?

The weight of evidence that the Communities Committee received was against the creation of even a limited third-party right of appeal, and the democratic process should take account of that. With the enhanced notification procedure that I have described and the ethos of participation and involvement of communities in development plans, I do not believe that we need new appeal rights that could suggest that we envisage the failure of the provisions in the bill even before it is passed.

Photo of Ms Rosemary Byrne Ms Rosemary Byrne SG 10:00, 16 November 2006

I lodged amendment 126 on behalf of Friends of the Earth Scotland. The amendment, which is supported by RSPB Scotland and Scottish Environment LINK, aims to redress the balance in the bill. I do not agree with the minister that the weight of evidence does not support the creation of a third-party right of appeal. On the contrary, communities are very much in favour of TPRA, and I feel that they have been badly let down.

Amendment 126 would remove developers' existing rights of appeal so that there would be parity with communities. Why should our communities not have parity? The existing system is untenable, as it gives additional rights to a group that needs them least. Given the new opportunities that the bill creates for developers to participate in the preparation of development plans and to consult communities, their right of appeal is no longer necessary.

If amendment 126 was agreed to, developers would have to take community consultation and development plan preparation seriously, because they could no longer use the appeals system as a fall-back to gain planning permission. A level playing field between developers and communities would be created once and for all. Developers would no longer get a second bite at the cherry or have the means to place pressure on councils.

The measure that amendment 126 proposes would be easier to introduce and less costly than a third-party right of appeal. Scottish taxpayers currently meet the bulk of the cost of appeals, paying for both inquiry reports and council staff's time. That money would be better spent on delivering the new community consultation measures in the bill than on giving developers a second chance to subvert the decisions of democratically elected local councils.

Too often, developers have used and abused their right of appeal to wear down the resolve of communities while also creating uncertainty. That, in part, has led to calls for TPRA. By so vigorously opposing TPRA, developers have highlighted why their own position is untenable and unfair, and they should now face the consequences. Developers will no longer be able to intimidate councils into granting planning permission by using the threat of a costly and time-consuming inquiry.

Communities may believe the minister when he says that they did not substantially indicate that they wanted TPRA. However, I do not agree with him. Amendment 126 would not give communities TPRA—which would be my favoured option—but it would redress the balance, and I ask members to support it.

Photo of Donald Gorrie Donald Gorrie Liberal Democrat

Amendment 85 makes it clear that there should be a limited third-party right of appeal. I am not saying that the bill is so flawed that we need additional protection. Nevertheless, however good any system is, things will go through it in the wrong way and will need attention, so there must be a last line of defence. I suggest that there should be a limited third-party right of appeal with three conditions attached to it.

First, the appeal must be triggered by a genuine community body such as the community council or an equivalent body. It could not be just a few nimbies who had submitted written objections to a planning application; there would have to be genuine community strength in the view that the application should be defeated and that there should be an appeal.

Secondly, the grounds of the appeal would be limited to two, the first of which would be the council being a major player in the development and standing to benefit from it. It would be wrong for councils to be judges in their own case without there being any appeals process. That would fly in the face of natural justice and open government, and it would shake people's confidence in the people who are in government.

The second ground of appeal would be that a major application was contrary to the development plan. A lot of the bill says how important the development plan will be. That is fine. However, surely, if the plan is so important, the bill should say that anyone who submitted an application against the plan would have to overcome an additional hurdle in the possibility of an appeal by the local community.

The right of appeal that I propose is very restricted. The claim by Executive spokespeople that the majority of those who were consulted were against the creation of a third-party right of appeal is contrary to the information that I have been given. The figure of 80 per cent of respondents being in favour of a third-party right of appeal has been quoted, although I have not personally read all the responses and counted them up. The public are strongly in favour of a third-party right of appeal. Many organisations have been arguing for it for years, and it is important to the public's belief in the democratic legitimacy of the planning process that there is a limited right of appeal. I hope that other members will see it in that way.

Photo of Patrick Harvie Patrick Harvie Green

I understand why some people would respond to the Executive's unwillingness to consider TPRA by seeking to remove the developer's right of appeal, but I do not support that approach. Mistakes will always be made, and that is why there should be an appeals system, because people will feel the need, quite legitimately, to complain about those mistakes and to appeal against wrong decisions that have been made. Removing the developer's appeal also seems to accord with the implication that all developers are bad people who want to abuse their power. Some do, but not all do, and punishing all developers by removing the developers' appeal is the wrong solution to the problem.

Jackie Baillie began by saying that community notification is not TPRA, which is quite true. That is why I do not think that community notification is of much value. I do not think that community notification would remove the injustice and unfairness that exist if there are appeals on one side but not on the other.

We have debated several different solutions, and I have lodged an amendment that proposes another variant of TPRA. Amendment 129 goes along with the Executive's argument that TPRA would remove unfairness but that it is impractical and would cause problems in the system. Amendment 129 says that TPRA would kick in if, and only if, development plans are out of date. If the Executive gets its way with the bill and if we get development plans that are kept up to date, as the Executive expects to happen, it will get its way on TPRA. However, if that does not work, and if development plans are not kept up to date, that is a promise not kept—a promise broken. In those circumstances, there is a case for addressing the unfairness by introducing third-party appeals.

I am sympathetic to any and all variants that we can come up with to provide a solution. I will even support amendment 123, in the name of Jackie Baillie, because it is better than nothing, if only a little better than nothing. However, I hope that, if amendment 123 falls, members on the Labour back benches and Liberal Democrat members, whose own party policy is in favour of TPRA, will accept that the injustice in the system should not be allowed to continue and will support amendment 129.

Photo of Sandra White Sandra White Scottish National Party

I rise to speak to amendment 130 and to move amendment 130. In fact, I shall move all my amendments.

Photo of Murray Tosh Murray Tosh Conservative

You do not move your amendments at this stage. You simply speak to them.

Photo of Sandra White Sandra White Scottish National Party

I shall speak to amendments 130, 131 and 132. I specifically lodged three separate amendments to enable each to be taken on its own merits, and I remind members that only persons and communities that had originally made representations against consent for planning permission would be able to make an appeal.

Amendment 130 is on the environmental impact assessment—a simple condition in planning but one that, if ignored, can have devastating effects on a community. Amendment 131 is on land that the authority owns or has interest in. That is perceived by communities to be one of the most contentious issues, because they can see a complete conflict of interests with local authorities. Although local authorities may engage with communities, they have the right to go against their wishes, which can be a contentious issue with communities and the public at large. Amendment 132 is on strategic and local development plans, which are another highly contentious issue; I am sure that members' postbags must be full of issues raised by the communities that they represent throughout Scotland. Communities are asked to take part, sometimes for many years, in local development plans, only to discover at the end of the consultation process—we have seen this with hospital consultations, too—that a development is pushed upon them against their wishes. That cannot be right.

I remind members that my amendments are for a limited third-party right of appeal. I remind the Executive that 86 per cent of the respondents to its consultation supported some form of third-party right of appeal. I welcome early consultation—I am sure that communities, too, will welcome it—and the scrutiny of planning permission, which is included in the bill, but communities still will not have the right of appeal if a bad decision is made.

I will pick up on some of the issues that have been raised. It cannot be fair that communities do not have the right of appeal. Authorities can consult to death if they wish to do so, but there must be an end point, and communities do not have that end point. The third-party right of appeal is not anti-development, nor is it against economic growth. The third-party right of appeal would enhance the planning process and ensure that communities were brought in, not just at the beginning of the process but at the very end. I ask members to consider all three of my amendments seriously, on their individual merits, when I move them. I urge members to support some form of appeal in order to give communities the support that they deserve and to ensure that they are heard and listened to. That is only fair and just.

Photo of Dennis Canavan Dennis Canavan Independent

Eighty-six per cent of respondents to the Executive's consultation supported the principle of a third-party right of appeal. I was one of that 86 per cent. The Executive, on the other hand, is apparently taking the side of big business developers, instead of siding with the overwhelming majority of the people. I find that rather strange, particularly when the Labour party frequently declares that it supports the interests of the many, rather than the interests of the privileged few.

I support the amendments that have been lodged by Donald Gorrie, Patrick Harvie and Sandra White, but it seems highly unlikely that the Executive will support any of those amendments, so amendment 133 is a compromise. It would leave open the possibility of a third-party right of appeal being introduced through secondary legislation at a later stage.

I do not believe in a third-party right of appeal for every Tom, Dick and Harry, and I do not believe that we should pander to nimbyism, but in certain circumstances a third-party right of appeal can be justified. For example, if a community council is against a proposed development in the area that it covers, it should have a right of appeal to the Executive. Jackie Baillie's amendment 123 proposes something similar, although, as I understand from her remarks, it falls short of a third-party right of appeal. I hope that amendment 123 is agreed to, but if it is not I ask the Parliament to support my amendment 133.

Let us see how the legislation works out in practice. Let us see if the consultation procedures that are proposed in the bill are adequate. If they are not, instead of having to wait, possibly for years, for new primary legislation to be introduced, a third-party right of appeal could be speedily introduced by secondary legislation, and the exact circumstances in which that third-party right of appeal could be exercised would be defined in that secondary legislation. I therefore ask the Parliament to support amendment 133.

Photo of Murray Tosh Murray Tosh Conservative

A lot of members want to speak, so I shall limit speeches to two minutes.

Photo of Sarah Boyack Sarah Boyack Labour

It is a great pity that the Scottish Executive will not accept the proposals that Jackie Baillie, Pauline McNeill and I have made to extend the community right of notification. It is in line with the partnership agreement, which commits us to improving planning rights for communities.

I welcome the emphasis on up-front consultation. It is what I was trained to do as a town planner 20 years ago, so members must excuse me if I do not see it as an innovation. I see the benefits of developers consulting communities early. It leads to better proposals that are more in tune with what communities need and what is in the local development plans. It also provides the opportunity for better proposals and leads, at the end of the day, to more happy communities. However, it is not the full story because not everyone engages enthusiastically in that process.

We need better checks and balances in the system. In drafting amendment 123, we used and extended the Executive's notification procedures. It is not TPRA; Patrick Harvie was right to emphasise that. We are looking at communities, not individuals. Our proposal is not about automatically adding a year to every application if just one person is not happy. It is about the right for the communities concerned to be listened to before final consent is issued and before the developers' contracts and legal commitments kick in. I do not see what developers have to fear from our proposal, the process for which would involve a marginal amount of extra time for a much better outcome.

Euan Robson made a specific point about development plans. If the Executive wants us to move to a culture in which there are not just more development plans but leaner, less specific and less comprehensive development plans, I predict that more questions will arise in the future about what such plans mean in practice. More communities will be unhappy with local authorities' interpretations, and the Executive's notification procedure will leave that final judgment with the local authority and exclude communities.

Historic Scotland will still have the right to call for a review by the Scottish Executive, but communities will not. We will all still get hundreds of letters from people who are unhappy. The process that is proposed by the bill is neither transparent nor effective. Jackie Baillie's proposal would be a better way in which to deliver community planning rights, so I hope that members will support amendment 123.

Photo of Christine Grahame Christine Grahame Scottish National Party 10:15, 16 November 2006

We all know that many communities feel disfranchised by the planning system. The SNP fully supports robust up-front consultation and more involvement with communities, but that does not completely displace the need for a third-party right of appeal as a last resort. Indeed, such a right would act as a good deterrent for mischievous planning authorities or developers who breach the intended robustness of up-front consultation at the start of the process.

I commend Sandra White for her tenacity in following the issue through. I look forward to the Liberal Democrats supporting her amendments, because a third-party right of appeal is their party policy.

Photo of Christine Grahame Christine Grahame Scottish National Party

I am sorry, but I do not have time. I have only two minutes.

I commend Jackie Baillie. As she knows, I mischievously moved a similar amendment that she had lodged at stage 2. As Patrick Harvie said, Jackie Baillie's amendment 123 is better than nothing, but only just. She said that her proposal might not be the preferred option of those who want TPRA, but I hope that enough members will vote to allow amendment 123 to go through.

I am sympathetic towards Rosemary Byrne's amendment 128, but Patrick Harvie said it all when he said that developers are not all bad. Rosemary Byrne's solution, as I understand it, is too draconian.

We will support Euan Robson's amendments 127 and 124, Patrick Harvie's amendment 129 and Dennis Canavan's amendment 133, which are all well intentioned. The number of amendments indicates the level and strength of support in the Parliament for some form of third-party right of appeal.

Photo of Pauline McNeill Pauline McNeill Labour

Overall, the bill is a good one. It promises to address issues in the planning system that frustrate businesses, commerce and communities, which all have frustrations with the system. However, the bill does not fully address the issues of fair balance of representation between applicants and those who are affected by development—the people in local communities.

The community right of notification is both fair and simple and will help to provide balance. Nothing in the bill allows any objectors or community groups to challenge any decision. However, developers and applicants have the right of appeal and the right of judicial review, because they are the ones who usually have the resources to do it. Communities that want to use judicial review do not tend to have sufficient resources, even though they might have good grounds to do so.

The community right of notification is a modest proposal. I point out to Euan Robson that it is a trigger to notify ministers to let them consider whether the decision needs to be examined again. I do not know that it really matters who triggers the process, but the right would exist. It would be the only part of the planning system in which community bodies would have a trigger to enable Scottish ministers to examine the issues. That would restore the balance of fairness.

In some cases, there are arguments over the development plan and how it is interpreted. The plan is the basis of the system. Planning authorities will tend to interpret the development plan in their own favour, and they will be judge and jury. The problem is that communities see local authorities as having an interest in building development. The question whether two-storey or four-storey buildings are built matters to communities, and of course the applicant has a vested interest in the buildings being higher. Communities also have an interest if 100 extra cars are being brought into their community. Therefore, it is vital that we provide a mechanism for communities to trigger the process.

Even if the Executive had conceded that community objectors would be advised of outcomes when it is already looking at applications, that would have been symbolic of the place that was given to MSPs and objectors in the system. That concession would have been helpful. I urge members to support amendment 123.

Photo of Mr Andrew Arbuckle Mr Andrew Arbuckle Liberal Democrat

The various amendments that have been lodged are legacies of the current adversarial planning system. As a local councillor, I have railed against the lack of democracy in the current system when an appeal lands in the hands of a Scottish Executive reporter.

Euan Robson pointed to the difficulties with Jackie Baillie's amendment 123, but he did not comment on the potential burgeoning of nimby community bodies. I reckon that three or four applications on the agenda for a recent Fife Council planning meeting could fall into the scope of amendment 123. That is one meeting in one planning area. An issue that has not been mentioned so far, although I hope that it comes up in this afternoon's debate, is the general lack of qualified planners throughout the country. I do not know how many such applications would emerge if the new requirement of prior consultation were to operate well. Perhaps they will end altogether.

We are putting a lot of faith in the new system of prior consultation. As such, I have a degree of sympathy with Dennis Canavan's amendment 133, which would mean that if the new system does not work properly we would at least have a mechanism by which we could come back and re-examine it.

Photo of Karen Whitefield Karen Whitefield Labour

I appreciate Jackie Baillie's long-standing interest in the issue. However, in my opinion, amendment 123 fails to recognise the significant cultural and procedural changes that the bill will make to the planning process, in particular through the requirement to put community engagement at the heart of the process.

Amendment 123 would destroy the balance that the bill creates between community involvement in the development plan process and a swifter and more transparent decision-making process. Given that we are restricting the scope of appeals, it would seem rather strange to introduce a further layer of bureaucracy that would delay the process and give communities no meaningful engagement.

Amendment 85, in the name of Mr Gorrie, represents the reintroduction of yet another amendment that was defeated overwhelmingly in the committee at stage 2. The argument that held sway then, which was that the amendment would not ensure that we had a definition of a truly representative body, still stands.

The amendments in the name of Sandra White and amendment 129, in the name of Patrick Harvie, attempt to introduce a limited third-party right of appeal—as does amendment 133, in the name of Dennis Canavan, in a wider way.

I say to Patrick Harvie that in this Parliament we do not legislate for legislation to fail; we legislate to have legislation that will work. Introducing amendments on the basis that the legislation might not work seems ludicrous to me. The effect of all those amendments would be to increase confrontation, cause delay and uncertainty and require central decision making. That is not the type of planning system that I want and it is certainly not the type of planning system that my constituents deserve. In the past, people in the poorest communities have often faced the worst planning decisions.

Today is an opportunity for the Scottish National Party to come clean. What is its position on the third-party right of appeal? It is up to the SNP to decide whether it will side with Jim Mather and support Scotland's business community or whether it will consign Scotland to being an economic basket case.

Photo of Dave Petrie Dave Petrie Conservative

The Conservatives are sympathetic to all TPRA issues. It is vital that the views of all organisations are acknowledged and listened to during the planning process—indeed, that is the aim of the new planning process. However, our concerns lie with the obvious conflict between TPRA and the aims and objectives of what is supposed to be a fast-track comprehensive planning system.

I have sympathy with amendment 123. I have discussed the matter with Jackie Baillie and I see where she is coming from, but I share Euan Robson's concerns. There is the risk of rogue community bodies upsetting the apple cart. I will support amendment 127, in the name of Euan Robson, and consequential amendment 124.

Photo of Susan Deacon Susan Deacon Labour

We must be clear that no amount of end-stage process will give this country the planning system that it needs and deserves. In the many years of debate leading up to the bill, a disproportionate amount of time and emphasis has been placed on end-stage appeal rights. It would be a travesty if, in the implementation and delivery of the change that flows from the bill, a disproportionate amount of time and energy were again spent on end-stage process.

A third-party right of appeal—or indeed a community right of notification—will address neither the anger and frustration felt by communities at the planning system nor the current system's shortcomings. However, it will inevitably delay decisions on vital social and economic developments, add to processes and lead to more end-stage disputes. I say to the members who have moved these amendments that their proposals raise enormous issues of interpretation, definition and practicality that it will take time to resolve.

Critically, these proposals will divert attention and energy from getting things right at the front end. We need to concentrate more on—and hear much more from the Executive about—how we can make a reality of the culture change that is needed at the beginning of the process to ensure that all local authorities, including those that might need to be dragged kicking and screaming to the table, will engage meaningfully with communities.

I also want to hear the Executive's proposals on building capacity and support for communities at a local level. Let me be clear: although many of us will vote against these amendments today, we are every bit as passionate about ensuring that in future community views and interests are reflected better in law and in practice.

I urge colleagues to reject the amendments and to work towards a planning system that works from the beginning and does not add delay and disputes at the end.

Photo of Cathie Craigie Cathie Craigie Labour

I acknowledge the level of interest in this area of the bill, although I am perhaps disappointed that so much of people's time and energy has been spent on it.

The bill's key aims are to modernise the planning system to make it open and transparent; and to allow communities to have, from the outset, a say in shaping their areas, in the development planning process and in individual applications. However, I share other members' fears that if we indicate to our communities that there is a mechanism that they can use at the end of the process, they will simply not engage at that very early stage.

I understand that members feel passionately about their amendments and I admit that they might have had a point if the planning system were to remain as it is. However, that is not the case. The system will be much improved and will allow communities to take part in and engage with the whole process.

Throughout the bill's passage, we have said that its proposals require a culture change on the part of professionals and community groups, including some of the umbrella groups that have been pushing for these amendments. I hope that we will give the bill our full backing and ask colleagues to reject all the amendments in this group.

Photo of John Home Robertson John Home Robertson Labour

Proposed subsection (13) that amendment 123 seeks to insert into section 43 of the 1997 act defines the community bodies that would be able to trigger the notification and appeal mechanism that has been suggested by some of my colleagues. It says that such bodies would have to be "formally constituted"; would have to

"consist solely of members who ... reside ... and are entitled to vote" in a particular postcode area; and would have to

"have at least 12 members".

As any national pressure group could constitute itself in ways that could fit those criteria by organising its membership on a postcode basis, this proposal could act as a device for serial objections and obstruction by such pressure groups, regardless of the interests of local communities. Dennis Canavan mentioned the problem of nimbyism and I fear that this device could be used by others with an obstructive agenda.

Amendment 123 would, in effect, create a licence for obstructing necessary and desirable developments. There should be no place for such obstructionism in the new, open and democratic planning framework that the Executive has proposed and which the Communities Committee has overwhelmingly supported.

Photo of Kenneth Macintosh Kenneth Macintosh Labour

However sympathetic we might feel to the principle of TPRA, all of us will be aware of the practical difficulties of introducing full third-party right of appeal and the strengths and flaws of the amendments in this group—including amendment 123, for which I have particular sympathy.

However, if the minister and the Executive cannot accept any of these amendments, what reassurance can she give to the many individuals and communities that we represent that this new planning system will give them equal—or, at least, fair—access to that system? Can she reassure communities and individuals that they can feel confident that their views will be heard throughout the planning and appeals process? Moreover, what reassurance can she give to ensure that these communities do not feel outgunned, outnumbered and outmanoeuvred by developers and others, as happens so often at the moment?

Photo of Tricia Marwick Tricia Marwick Scottish National Party 10:30, 16 November 2006

I say to Cathie Craigie, who regretted the amount of time that has been spent on discussing community issues such as TPRA, that this is a democracy and we have a right to talk about these matters.

The amendments in the name of Sandra White, which seek to introduce a very limited third-party right of appeal, are sensible. With the bill, the Executive is expecting communities to make a leap of faith, undergo a culture change and simply accept that the new system will somehow make everything all right. If the minister is right, the consultation with communities will work effectively.

However, Sandra White's proposal seeks to deal with situations in which, for example, a local development plan that has been agreed in the consultation process is simply overturned for a particular planning application. Surely, in such circumstances, a community has the right to appeal. After all, it has engaged in the consultation at the beginning of the process; if its views are then set aside by the planning authority, it has a perfect right to be heard.

Amendments 130, 131 and 132 seek to introduce a very limited third-party right of appeal and I ask members to support them.

Photo of Helen Eadie Helen Eadie Labour

I support amendment 123 not only as a previous member of Fife Council's planning committee and as a member of the Parliament's Public Petitions Committee but on the basis of the Executive's own analysis of rights of appeal in planning, which said that, even with the exclusion of responses from campaigners—postcards and so on—59 per cent of respondents supported TPRA.

However, with amendment 123, Jackie Baillie seeks the introduction of a community right of notification, which is a fundamentally different matter. The proposal is particularly good for communities in Scotland, because we need to realise that this is an issue of trust. The Parliament should build up and maintain that trust. If we do not support the amendment, we will be in real difficulties.

Photo of Johann Lamont Johann Lamont Labour

This debate is serious and important and anyone who is under the illusion that this idea has simply popped up at the last minute—as I think I heard someone say on the radio this morning—has not engaged in the kind of discussions and conversations that I have had, particularly on the issues that Jackie Baillie, Sarah Boyack and Pauline McNeill have raised. Everyone in the debate has acknowledged the huge challenges that we face and the major concerns that have been raised.

It has been argued that the system does not strike the right balance between the applicant and the community that is affected by the application and that, therefore, some mechanism should be available at the end of the process. However, I contend that the bill, which has been shaped by the Communities Committee, brings together a strong package that strikes the balance that we are all seeking between the rights of applicants, developers and those who want to create the infrastructure that we want in our communities, and the rights of those communities. Dennis Canavan says that, with the bill, we are standing with big business; I am standing with the Scottish Trades Union Congress on this matter and I am happy to do so.

We want all developers and planning authorities to recognise that their actions impact on local people. The bill is designed to help them to face up to that reality and to engage consistently across Scotland. That is why our proposals focus on securing meaningful community engagement at the front end of the process both in development planning and in early engagement in applications, with rigorous enforcement of any decisions that are taken. That view was reinforced at stage 2. We believe that planning authorities should focus their available resources on where they will make a difference. Indeed, as we said time and again yesterday, we recognise that our democratically elected local authorities must take responsibility for ensuring that their decisions are taken openly and accountably and in the interests of the areas that they represent.

All the amendments in this group should be considered in that light. We believe that the proposals in amendment 123, for a community right of notification, and in amendments 129 to 133, for a third-party right of appeal, would significantly disrupt that critical balance for no real benefit. Our view is that the introduction of additional procedures and complexity at the end of the process would not improve the quality of decision making but would add to the delay and uncertainty that we want to tackle. In addition, it would undermine the democratic role of local authorities and would fail to give communities social and environmental justice. As we have said before, it would reward strong communities and punish weak ones.

Amendment 123, in the name of my colleague Jackie Baillie, proposes the introduction of a community right of notification procedure, which some people support as a compromise to ease the debate on appeal rights. However, the proposal presents difficulties. First, it would introduce more formal procedures and more delay into the planning system. Under the system that we propose in the bill, the key controversial cases will be notified to ministers. For those cases, the community right of notification procedure would not be relevant and would not give community bodies any meaningful extra input into the system.

The proposed procedure would make a difference in cases in which a community disagreed with the local authority's judgment that an application need not be notified. In those circumstances, no one can tell me that we would not be opening up the opportunity for a huge range of applications to be notified on the ground that communities thought that notification was deserved. There would be no one to mediate or to make a judgment on such matters at local level. The procedure would come in when a local authority was not to be trusted on the notification responsibilities with which it had been charged and it would mean that the role of elected local authorities in taking reasoned judgments on behalf of their communities would be significantly undermined. All the evidence suggests that local authorities are almost overcautious and that they notify when they think that a proposed development qualifies for notification.

Secondly, the proposed procedure would reduce the incentive for communities, developers or local authorities to engage seriously in the early stage of the process. We know that some bodies are not keen on such engagement. Under amendment 123, a community body, without having to prove that it represented a significant body of opinion, could simply take the decision out of the local authority's hands and allow the minister to judge whether the decision should be made at the centre. Our aim is to reduce the procedural complexity and delay that plague the current system, and to challenge people to engage at an early stage. Amendment 123 does not achieve either of those aims, nor does it assist the process of modernisation of the system, so I urge Jackie Baillie to seek to withdraw it.

Amendments 130, 131 and 132, in the name of Sandra White, together with amendment 129, in the name of Patrick Harvie, seek to introduce into the planning system a form of third-party right of appeal. Amendment 133, in the name of Dennis Canavan, seeks to introduce a slightly more open form of third-party right of appeal. Those amendments are unnecessary and unwelcome.

Dennis Canavan almost hit the nail on the head when he said that we do not want to provide a charter that would allow every nimby in the country to get support, but the problem is how we define what a nimby is. From where I am sitting, it sometimes seems that people's attitude is, "I am not a nimby, but everyone who disagrees with me is." We must confront that challenge when we address the planning process.

It is understandable that at both stage 1 and stage 2 the Communities Committee rejected the arguments in favour of third-party right of appeal. The Executive has carefully considered the arguments for and against its introduction. Although we recognise the depth of feeling that exists, we do not think that TPRA is the way forward.

I am baffled by the sudden appearance of amendments from Rosemary Byrne at such a late stage. She has popped up at the last minute to discuss an issue that the rest of us have engaged with fully. She wants to leave appeal rights exactly as they are, which is absurd. No one agrees that that is desirable. We have always said that a crucial part of restoring trust in the planning system is to ensure that, as far as possible, appeals are limited to reviews of the original decision so that applicants cannot introduce material that should have been available to the planning authority and the local community. We want to prevent people from abusing the first-party right of appeal but, for some bizarre reason, Rosemary Byrne wants to stop us.

On amendment 85, people can already make their case to us about why they think that an application should be called in by ministers. We have already taken into account the issues that amendment 85 seeks to address. It would simply duplicate and complicate existing provisions.

With the leave of the Presiding Officer, I want to make an important point about amendments 124 and 127, in the name of Euan Robson. We understand that some members want to enhance some of the ministerial notification requirements by including them in the bill. That is the intention behind amendments 124 and 127. However, they would oblige ministers to call in all planning applications that involved development proposals that were contrary to the development plan or in which the planning authority had some interest. I know that that is not the intention of Euan Robson and other members who have an interest in the issue. Decision making would be centralised not just for a small number of contentious development plans but for a host of minor and inoffensive proposals. That would cut across everything that members said yesterday about the role of local authorities and local democracy. Many more applications would be called in by ministers.

However, we acknowledge Euan Robson's concerns and understand why some people are worried about the way in which some planning applications are handled. We have already made clear our commitment to enhancing the scrutiny of local authority interest developments and departures from development plans. Planning authorities must carry out a range of developments in the exercise of their duties. In addition, they own significant amounts of land, which might sometimes be needed for new development. It is essential that councils respect the formal process and the inherent fairness of the planning system and that they treat any proposal in which they have an interest openly and in the same way that they would treat any other proposal.

On 13 September, I said to the Communities Committee:

"planning authorities will be required to notify other applications, including certain local authority interest cases".—[Official Report, Communities Committee, 13 September 2006; c 3928.]

I confirm that planning authorities' requirement to notify will go beyond the existing categories of notifiable applications. As I said at the time, that requirement will be backed up by the full force of the law.

Development plans are central to shaping future development in all our areas, so it is reasonable and, indeed, essential to expect that planning decisions will be taken in accordance with those plans. However, sometimes departures from them are necessary and it is vital that they are scrutinised carefully.

Our policy and proposals are clear. When a local authority intends to permit an application in which it has an interest, but that application either constitutes a significant departure from the development plan or faces a substantial body of objections, the authority must first notify Scottish ministers, who will consider whether to call it in. I believe that what we are suggesting will meet the demands of Euan Robson and will avoid the dangers that the amendments unintentionally present. We are committed to scrutiny in those circumstances, which is far more proportionate than the suggestion that ministers should call in every application that met the proposed criteria. I urge Euan Robson not to move amendments 124 and 127.

In summary, it is fundamental to the success of the planning modernisation package that we retain the focus on ensuring that local authorities, local communities and applicants work together from the outset to achieve sustainable outcomes. We do not want to let anyone off the hook in the early stages of the process. The challenge of meeting the participation standards is written into the process. Developers will not get away with ticking a box.

I urge members to recognise that the balance of the package of measures that the bill offers, which has been shaped by the committee, will give comfort and support to local communities in shaping their environments and to local authorities in exercising their crucial role. It will also provide the opportunity for the planning system to deliver the economic development and transformation of our communities that we all wish to see.

Photo of Murray Tosh Murray Tosh Conservative

I realised the significance of the point that the minister was making, but I suspect that we will need to make up time later on.

I said that I would give Jackie Baillie three minutes, so I will honour that.

Photo of Jackie Baillie Jackie Baillie Labour

Thank you, Presiding Officer. I will try to take less than that.

The debate has been both passionate and disappointing. Many of the points that have been made have been based on a perception of what amendment 123 seeks to do, rather than on what it is actually trying to do. I am genuinely disappointed that some colleagues have not taken the time to examine the detail of my proposal.

I want to deal with the different views that have been expressed, beginning with those of Euan Robson, Dave Petrie and John Home Robertson. I say to Euan Robson that of course there will be different views. That is the beauty of working in communities. There were different views when we had two-tier local authorities. Applications are already sent to ministers for a 360º view and we think that they can continue to cope with that.

I say to both Euan Robson and John Home Robertson that we seek to allow ministers to set the criteria under which community bodies will be registered with their local authority each year. We think that it is important to recognise local knowledge and to prevent the formation of the nimby groups to which Andrew Arbuckle referred—I am sure that he meant to suggest not that his community was made up of groups of nimbys, but that people had genuine and serious concerns about planning matters. We recognise that there may be difficulties, which is why we have sought to give ministers enabling powers to set out criteria for the community bodies that will be recognised.

I say to Karen Whitefield that there will be no restriction on the developer's right of appeal, except that the timescale will be reduced from six months to three months. We understand why the Executive has gone for that approach and we do not demur from it. In our proposal, we have gone with the grain of the Executive's approach, both as regards the criteria for notification and the process that would otherwise be followed.

I say to Susan Deacon that I acknowledge her passion and her commitment to her community. As a member of the committee that considered the petition from Musselburgh racecourse, I know just how difficult some of the issues are when there is a clear local authority interest. Such a proposal would fall to be considered under a community right of notification.

I will talk briefly about what happens now and illustrate that with the example of a local supermarket development on what is probably the prime amenity site in my town. As it is a local authority interest case, the decision to call it in should have been relatively quick, but it took 700 letters from some very articulate people for that to happen. For the Executive to have to respond to 700 letters is not a good use of its time. Also, it leaves less articulate communities without a voice.

Our procedure is simpler and transparent. It is not a question of trust, as Scottish ministers already overrule local authorities' decisions through the notification procedure. Our approach is fair and proportionate. It gives rights to communities, not only at the start of the process but throughout it. It will deliver certainty for communities, local authorities, and—above all—developers.

Photo of Murray Tosh Murray Tosh Conservative

I infer from what you said, Ms Baillie, that you are pressing the amendment.

Photo of Murray Tosh Murray Tosh Conservative 10:45, 16 November 2006

The question is, that amendment 123 be agreed to. Are we agreed?



Division number 6

For: Adam, Brian, Baillie, Jackie, Baird, Shiona, Ballance, Chris, Ballard, Mark, Boyack, Sarah, Byrne, Ms Rosemary, Canavan, Dennis, Crawford, Bruce, Cunningham, Roseanna, Curran, Frances, Eadie, Helen, Ewing, Fergus, Fabiani, Linda, Fox, Colin, Gibson, Rob, Gorrie, Donald, Grahame, Christine, Harper, Robin, Harvie, Patrick, Hyslop, Fiona, Ingram, Mr Adam, Kane, Rosie, Leckie, Carolyn, Lochhead, Richard, MacAskill, Mr Kenny, Macmillan, Maureen, Martin, Campbell, Marwick, Tricia, Mather, Jim, Maxwell, Mr Stewart, McFee, Mr Bruce, McNeill, Pauline, Morgan, Alasdair, Neil, Alex, Robison, Shona, Ruskell, Mr Mark, Scott, Eleanor, Sheridan, Tommy, Stevenson, Stewart, Swinburne, John, Swinney, Mr John, Watt, Ms Maureen, Welsh, Mr Andrew, White, Ms Sandra
Against: Aitken, Bill, Alexander, Ms Wendy, Arbuckle, Mr Andrew, Baker, Richard, Barrie, Scott, Brankin, Rhona, Brocklebank, Mr Ted, Brown, Robert, Brownlee, Derek, Butler, Bill, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Davidson, Mr David, Deacon, Susan, Ferguson, Patricia, Finnie, Ross, Fraser, Murdo, Gallie, Phil, Gillon, Karen, Glen, Marlyn, Godman, Trish, Goldie, Miss Annabel, Gordon, Mr Charlie, Henry, Hugh, Home Robertson, John, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Johnstone, Alex, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, Maclean, Kate, Martin, Paul, May, Christine, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McGrigor, Mr Jamie, McLetchie, David, McMahon, Michael, McNeil, Mr Duncan, McNulty, Des, Milne, Mrs Nanette, Mitchell, Margaret, Monteith, Mr Brian, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Murray, Dr Elaine, Oldfather, Irene, Peattie, Cathy, Petrie, Dave, Pringle, Mike, Purvis, Jeremy, Radcliffe, Nora, Robson, Euan, Rumbles, Mike, Scott, John, Scott, Tavish, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stone, Mr Jamie, Wallace, Mr Jim, Whitefield, Karen, Wilson, Allan
Abstentions: Douglas-Hamilton, Lord James

Photo of Murray Tosh Murray Tosh Conservative

The result of the division is: For 45, Against 74, Abstentions 1.

Amendment 123 disagreed to.