Transport and the Environment Committee
8 January 2003
[THE CONVENER opened the meeting at 09:39]
Convener (Bristow Muldoon): I welcome everyone to the first meeting of
the Transport and the Environment Committee in 2003 and wish you all a happy new
year. I hope that it is a successful yearfor most of us, anyway.
have received no apologies for absence from today's meeting, but Fiona McLeod
said that she would be late. If the meeting is still progressing at 11:30, Elaine
Thomson will need to leave to attend another committee.
I ask members to agree to take agenda item 7 in private. Item 7 is consideration
of a paper on the committee's approach to the examination of telecommunications
developments, following its report in 2001 and the subsequent action taken by
Members indicated agreement.
Building (Scotland) Bill: Stage 2
Convener: I ask members to ensure that they have copies of the marshalled
list of amendments and the bill.
Sections 22 and 23 agreed to.
24Building warrant enforcement notices
Amendment 57 was debated with amendment 11.
Deputy Minister for Social Justice (Des McNulty): I wish everyone a happy
Amendments 57 and 58 moved[Des McNulty]and agreed
The Convener: Amendment 59 is in a group on its
Des McNulty: Amendment
59 would amend and broaden the provision on building warrant enforcement notices
to reflect changes made by amendment 21, which removed the restriction on what
an amendment to a building warrant might include.
I move amendment 59.
59 agreed to.
Amendments 60 to 66
moved[Des McNulty]and agreed to.
Section 24, as amended, agreed
Section 25Defective buildings
The Convener: Amendment 107 is grouped with amendment 108.
MacKay (Edinburgh South) (Lab): Amendment 107 is intended to be a tidying-up
exercise to grant local authorities power to carry out emergency repair work.
Examples of such work include work on blocked drains and the right to erect scaffolding
to facilitate repairs, such as those needed by Ryan's Bar, which has been much
quoted during the committee's deliberations.
Amendment 107 has no hidden
agenda or greater intent beyond the wish to transfer the powers contained in the
Civic Government (Scotland) Act 1982 to the bill, where they would be placed alongside
local authority powers to serve defective building notices.
I move amendment
Elaine Thomson (Aberdeen North) (Lab): I support amendment
107. Following a fire in Aberdeen, the Poundstretcher building in Union Street
was left in a dangerous condition. Although the owners of the property collected
money, they failed to carry out repairs to return the building to a safe condition,
with the result that a workman who went into the building was killed. The local
authority had major problems with being able to bring enough pressure to bear
on the owner of the building to make it safe. The amendment might tackle such
problems. I ask the minister to consider the important approach of giving local
authorities adequate powers to tackle dangerous buildings in such circumstances.
Macmillan (Highlands and Islands) (Lab): I ask Angus MacKay to explain
further the implications of amendment 107, which begins:
appears to a local authority to be necessary".
What criteria would
the local authority use? I am anxious about the amendment's resource implications,
were we to agree to it. In principle, we want to ensure that buildings are as
safe as possible, so what would be the effect of the amendment?
Crawford (Mid Scotland and Fife) (SNP): My question is for Angus MacKay
and the minister. I am interested in the minister's response to amendment 107,
which has the sort of rationale that we should get on to the statute books.
subsection (15) says that the local authority may recover costs from the owner
of a building if it wants to. It may also remit any sum, or part of any sum, if
it wishes. I want to ask about circumstances in which a building becomes unsafe,
not because of lack of repair or proper building upkeep but because of something
happening outside. For example, an adjacent building or an earth tremorGod
forbidmight undermine the building in question and place it an unsafe condition.
In such circumstances, would an individual be expected to bear the cost, or would
that be an insurance matter? I wonder about some of the unseen things that can
happen to property. Would a local authority be able to seek redressand perhaps
costsfrom an owner for action that the owner had taken, despite the fact
that the owner has no right of appeal or any other mechanism to use against the
Robin Harper (Lothians) (Green): We are
talking about a sensible strategy for emergencies. How would competitive tendering
fit in? Would councils be able to take immediate action without putting the work
out to tender?
Angus MacKay: I shall answer those questions
as well as I am able to and in the order in which they were asked.
Macmillan raised the cost implications, which would be minimal because amendment
107 proposes to incorporate in the bill existing law from
the Civic Government (Scotland) Act 1982. Therefore, I do not expect a significant
On Bruce Crawford's point about costs being recovered by
local authorities from an individual owner, or several owners, there would be
a need to test the circumstances against the provisions of insurance policies.
Without knowing the specific circumstances that Bruce has in mind, it is difficult
to envisage what they might be. The details of a property owner's insurance policies
would determine whether they were covered for certain costs. If an individual
felt that the authority was pursuing them unreasonably or unfairly for costs that
were not covered by insurance policies, the matter might have to be contested
through law. If such an action were raised, a local authority would certainly
have to defend its position in law. I find it difficult to conceive of an explanation
that would meet all the circumstances that Bruce Crawford described.
Robin Harper's point, we must consider the amendment for what it is. There is
nothing fantastical and new in it; it would simply bring together existing provisions
from the Civic Government (Scotland) Act 1982. Therefore, I do not envisage that
any material change would be created.
Nora Radcliffe (Gordon) (LD):
I am concerned that we may be creating a responsibility for local authorities.
If a local authority does not act in the way in which people perceive it should
have done, the authority will be held liable for not having done so.
McNulty: I am grateful to Angus MacKay for lodging amendments 107 and
108. I accept that there is merit in suggesting that we tidy up the provisions.
However, the professional advice that I have received is that the best way of
doing so may not be simply to import sections from the Civic Government (Scotland)
Act 1982 that contain different legal language and have not been worked through
in so far as the legal consequences of the bill are concerned.
MacKay were willing to withdraw amendment 107 and not to move amendment 108, I
would be happy to consider lodging amendments at stage 3 to achieve the effect
that he seeks. Executive officials have already had discussions with officials
from the City of Edinburgh Council, which has a particular interest in the matter.
We will consult both the council and Angus in developing the amendments that we
want to lodge at stage 3.
Angus MacKay: I am happy with
the minister's suggestion, as, I am sure, the City of Edinburgh Council will be.
On that basis, I am happy to withdraw amendment 107.
Amendment 107, by agreement, withdrawn.
Section 25 agreed
Section 26Dangerous buildings
The Convener: Amendment 88 is grouped with amendments 88, 89,
90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 105 and 106.
McNulty: As drafted, the bill requires local authorities to remove occupants
from a building only when the work that it intends to do relates to dangerous
buildings. It does not cover danger from work that a local authority intends to
do in other circumstances. The amendments are intended to rectify that situation.
They would provide that a local authority must require the occupants to leave
a building if such work might endanger them. That logical change to the bill would
ensure occupants' safety.
Amendment 105 would insert a new section to cover
work relating to various enforcement notices. The other amendments are consequential
to amendment 105. I do not propose going through each amendment, although I will
be happy for Lorimer Mackenzie to answer questions about the detail. However,
I draw the committee's attention to amendments 102 and 103, which would ensure
that the protection for tenants who were required to remove themselves from a
building was extended in line with the new section.
Amendment 106 would
provide a definition of "dangerous building" in section 51. It states
that the term should be construed in accordance with section 26(1), on dangerous
buildings, because, if the amendments were agreed to, the phrase would be used
more widely in the bill. We are proposing to tidy up the process and extend the
provision to take account of eventualities that we have recognised might arise.
move amendment 88.
John Scott (Ayr) (Con): May I ask for
clarification? If such a notice of temporary removal were given to occupants of
a building and, through no fault of their own, they were forced to evacuate, would
compensation be available?
Des McNulty: We are talking
about the protection of occupants' rights, which the provision was drawn up to
cover. The issue of compensation is not really for the bill. In that context,
we are concerned with ensuring that people can be removed from a building under
the various enforcement circumstances that may arise. The issue of compensation,
where appropriate, would arise out of the particular circumstances of the enforcement.
Mackenzie reminds me that if a building became dangerous, redress would be sought
against the owner rather than the local authority.
We are seeking to give local authorities the power to ensure that people can
be removed from a building safely.
Amendment 88 agreed to.
Amendments 89 and 90 moved[Des McNulty]and agreed to.
26, as amended, agreed to.
OF DANGEROUS BUILDINGS
AND ADJACENT BUILDINGS
91 to 103 moved[Des McNulty]and agreed to.
3, as amended, agreed to.
Section 27 agreed to.
28Dangerous building notices
Amendment 67 is in a group on its own.
Des McNulty: Amendment
67 is a sensible amendment that seeks to expand the remit of the building standards
advisory committee in reviewing regulations, as set out in section 28. Under the
bill as drafted, the committee can keep under review only the operation of building
regulations in addition to its advisory role for ministers. We now believe that
the committee could play a useful role in keeping under review all regulations
made under the bill, including procedure regulations and regulations on fees and
charges. Consequently, amendment 67 would permit the committee to carry out that
I move amendment 67.
Amendment 67 agreed to.
Section 28, as amended, agreed to.
Sections 29 and 30 agreed to.
4 agreed to.
Section 31 agreed to.
32Scheduled monuments, listed buildings etc
68 to 70 moved[Des McNulty]and agreed to.
32, as amended, agreed to.
Section 33 agreed to.
34Service of notices etc
Amendment 104 is in a group on its own.
Des McNulty: The
purpose of amendment 104
is to ensure that people are given appropriate notice of the notices that are
served under sections 22 to 26, which are building regulations compliance notices,
continuing requirement enforcement notices, building warrant enforcement notices,
defective building notices and dangerous buildings notices. Amendment 104 would
provide that, when such notices are served, copies should be served on the owner,
the occupier and others who it appears to the local authority might have an interest
in the building. The amendment would therefore ensure that those who might be
affected by workin particular owners and occupiers, on whom the effect might
be significantwould be informed of the existence and requirements of a notice.
104 follows on in part from amendments that were agreed to at the committee's
previous meeting, which will allow people other than an owner to apply for warrants,
undertake work and submit completion certificates. Those amendments will also
allow enforcement action to be taken against those people.
I move amendment
Bruce Crawford: I understand why amendment 104, which
is a good amendment, has been lodged. It would protect people's rights and would
ensure that what the local authority is trying to achieve is clear and transparent.
However, what about the person who does a midnight flight and disappears off the
scene because they find themselves in a difficult situation with their own building,
such as a shop owner who has gone bankrupt and whose property is falling into
disrepair? If the local authority were unable to serve the notice, would that
prevent the work required on the building from being done? A local authority constituent
of mine tried to repair an unsatisfactory building but could not trace the owner
or anyone who was responsible for the building. I would not like what the Executive
is sensibly trying to achieve with amendment 104 to put a brake on work being
done if the relevant person cannot be traced.
The amendment would allow additional people, above and beyond the owner,
to be notified. Nothing in the requirement to serve additional notices would delay
work being undertaken. Where the owner is a midnight flier, as Bruce Crawford
described them, the local authority could act through compulsory purchase or other
mechanisms to undertake the work.
Bruce Crawford: I am
concerned about compulsory purchase. One of the problems with compulsory purchase
is that, if the owner cannot be traced, advertisements have to be placed in the
press to allow them time to come forward. The process is lengthy and time consuming.
That is exactly why I asked those questions. Compulsory purchase can take a long
time. If the local authority cannot act until compulsory purchase has been achieved,
we may be building in a delay mechanism that could create even more danger and
raise even more health and safety issues for members of the public.
McNulty: I am happy to look into the circumstances of owners who cannot
be found when compulsory purchase mechanisms are invoked, but such circumstances
do not pertain to amendment 104. The amendment is about extending the serving
of a notice to a range of people. I am happy to write to Bruce Crawford about
compulsory purchase and the time issues that are associated with it, but those
issues do not relate to amendment 104.
Amendment 104 agreed to.
Section 34, as amended, agreed to.
Sections 35 and 36 agreed to.
5 agreed to.
Section 37Work required
by notice: right of entry
Amendments 71 to 74 moved[Des
McNulty]and agreed to.
Section 37, as amended, agreed to.
Section 38Tests of materials
Convener: Amendment 75 is in a group on its own.
Amendment 75 expands the definitions of "materials test" in
section 38(3) to provide that it
"includes a test of materials in combination
with other such materials and the test of the building as a whole".
was raised earlier. Amendment 75 will allow verifiers to test whether the materials
that have been put together fulfil certain functions, such as thermal or sound
requirements. The materials test can include a test of a whole building, where
such a test would be relevant.
I move amendment 75.
75 agreed to.
Section 38, as amended, agreed to.
Amendment 105 moved[Des McNulty]and
Sections 39 and 40 agreed to.
Section 41Sale of materials from demolished buildings
76 and 77 moved[Des McNulty]and agreed to.
41, as amended, agreed to.
Section 42 agreed to.
43Penalties for offences
Amendment 78 moved[Des
McNulty]and agreed to.
Section 43, as amended, agreed to.
44 to 49 agreed to.
The Convener: Amendment
79, in the name of the minister, is grouped with amendment 87. I invite the minister
to move amendment 79 and to speak to both amendments in the group.
McNulty: If possible, I would like to hear what John Scott has to say
about amendment 87 before I speak to it.
The Building (Scotland) Act 1959
includes "any railway line" in the list of exceptions. It was an oversight
not to include that in the bill; therefore, amendment 79 is simply a technical
amendment to include "any railway line" in the list of exceptions.
move amendment 79.
The Convener: I invite John Scott to
speak to amendment 87. He may speak to the other amendment in the group if he
wishes to do so.
John Scott: The minister will be pleased
to know that I had not considered railway lines.
Amendment 87 is designed
to broaden the scope of the bill a little, but not too much. In evidence, the
committee heard of the need to include in the bill areas of the built environment
that are by definition not buildings, such as car parks, footpaths, street lighting,
roads, and so on. We heard of the need to bring those important complementary
features into the scope of the bill, and my amendment 87 seeks to achieve that.
I note what is said in the minister's letter to the committee, and I lodged amendment
87 with a view to complementing that. The introduction of the expression "the
built environment" would also allow ministers to include in the scope of
the bill such areas as they saw fit. I would welcome the views of the minister
and other members of the committee on that.
I seek clarification from the minister on the exception of "any railway line".
Am I correct in assuming that the reason for that exception is that railway lines
would fall under the
jurisdiction of the Health and Safety Executive and UK legislation rather than
the Building (Scotland) Act 1959?
Des McNulty: On the convener's
point, railway lines have never been incorporated in building legislation, so
to incorporate them in the bill would take them away from the legislation that
currently deals with them and would require a change to the bill. We want to promote
consistency and not to give ourselves additional problems by not excepting something
that we had intended to except, and which it would have been an oversight not
to exceptif you see what I mean.
I recognise the argument behind what
John Scott is saying in amendment 87. However, I ask him not to move the amendment
for a couple of reasons. First, the phrase "the built environment" is
vague. I set up the cross-party architecture and the built environment group in
the Scottish Parliament, which chose the phrase deliberately because it was vague
and could encompass many interests. Some uses of the phrase "the built environment"
in planning are a long way from the purposes of the bill. Therefore, it would
not aid clarity in the bill to change the phrase in the long title.
the mechanics of the bill are tied to the definition of the term "buildings",
and to change that now might have a number of implications for the bill's substance.
Therefore, if John Scott wants to go down that route, he should be mindful that
it is a long and complicated means of changing the nature of the definitions in
the bill. In that sense, amendment 87 would not add much.
There are no other
amendments whose substance would justify amendment 87. My letter makes it clear
that the Executive is aware of the relationship between buildings and their surrounding
environment, such as roads and footpaths. However, amendment 87 does not tackle
the problem sensibly and would cause unnecessary complications. On that basis,
I ask John Scott not to move amendment 87.
Amendment 79 agreed to.
Section 50, as amended, agreed to.
Amendment 106 moved[Des McNulty]and
Section 51, as amended, agreed to.
and 53 agreed to.
108 not moved.
Schedule 6 agreed to.
Section 54 agreed to.
Amendment 87 not moved.
Long title agreed
The Convener: That brings us to the end of our
stage 2 consideration of the Building (Scotland) Bill. An announcement will be
made in tomorrow's business bulletin about lodging amendments for consideration
at stage 3. I thank members, the minister and the Executive team for the swift
progress that was made on stage 2 and I look forward to considering further amendments
at stage 3.
Des McNulty: I am very grateful to members
of the committee. This might be the first stage 2 that has gone through without
The Convener: You will provoke Bruce Crawford during
stage 3, I suspect.
Control Areas (Authorised Fuels) (Scotland) Amendment Regulations 2002 (SSI 2002/527)
Convener: There are two negative instruments for consideration. No members
have raised points about the first instrument and no motion to annul has been
Bruce Crawford: I appreciate that no one has lodged
a motion to annul the instrument. The legislation gives certain companies the
authority to produce a product for smoke control areas. It is a good idea, and
I understand the Executive's reasoning, but I am concerned by proposed new paragraph
11A, which authorises Tower Colliery Ltd to manufacture Dragonglow briquettes.
It also mentions the address of the production area of the briquettes. Given that
the legislation states specifically where the company can produce the briquettes,
if it were to move, could it no longer produce briquettes for smoke control areas?
I am concerned that including the company's address would make it more difficult
for it to relocate and that that would require us to pass another statutory instrument
that would allow it to produce briquettes at a different location.
not sure that it is worth stopping the legislation, but that level of detail is
unnecessary. If the wording was "Dragonglow briquettes, manufactured by Tower
Colliery Limited", that might have allowed enough flexibility to ensure that
such circumstances do not arise.
The Convener: The clerks
advise me that we would have time to write a letter to ask such a question, which
we could consider at our next meeting. However, I take it that Bruce Crawford
does not oppose the measure and that it therefore might not be necessary for us
to delay consideration. We could still write the letter to bring the matter to
the Executive's attention and to ask for its response, which the committee would
consider. We could take either approach.
Bruce Crawford: I
do not want to cause any delay, unless the Executive's response is that what I
have to say has some merit and that it wants to produce another negative instrument.
However, that would mean restarting the process, and I suspect that the chances
of that happening are limited, given the available time. I am happy for us to
write to say that we have some drafting concerns and that the Executive should
ensure that such problems do not recur, unless somebody wants to take a stronger
Nora Radcliffe: The end of the explanatory
notes says that the place of manufacture of
several briquettes is now different. That implies that it is normal to include
the place of manufacture. As Bruce Crawford says, there might be a good reason
for that, because it looks as though that has been done previously and that designation
is now required again. It would be interesting to know about that.
Convener: On that basis, do members agree to make no comment that would
affect the instrument's progresswe will not oppose itbut to ask the
Executive to explain the inclusion of the manufacturer's address? We will ask
the Executive to write to the committee to share its views on why that was necessary
and whether it creates a problem for the instrument. Is that agreed?
Removal and Disposal
of Vehicles Amendment (Scotland) Regulations 2002 (SSI 2002/538)
The Convener: No members have made points about the regulations
or lodged motions to annul. As members have no comments, do they agree that we
have nothing to report on the regulations?
Scotland Act 1998 (Transfer of Functions
to the Scottish Ministers etc) Order 2003 (draft)
Convener: The order is a draft affirmative instrument. We have been designated
as secondary committee on it and we will report our comments to the lead committee,
which will consider the order on 21 January. If members have substantive questions
about the instrument on which they wish to hear evidence from the minister, we
could ask the minister to appear before the committee on 15 January. However,
if members do not wish to raise substantive issues, we could leave consideration
of the order to the lead committee. I seek guidance from members on the approach
that they wish the committee to take.
Bruce Crawford: I
do not wish to see the minister about the order. The only aspect that pertains
to the committee is the provision on the Transport Act 2000, under which the Scottish
ministers are being given an important power. I will explain that from personal
In the run-up to achieving the Rosyth to Zeebrugge ferry service,
considerable controversy blew up over whether the Department of Trade and Industry
would support the project in principle and through funding. I give all credit
to Henry McLeish, who at that time pushed hard behind the scenes. To clinch that
deal and make the ferry service a reality, the Executive was required to
pay £12 million to the DTI, which used that money to support the project at
Rosyth through a freight facility grant subsidy.
The DTI did not want to
fund the project and the Executive had no power to fund it, so a book mechanism
had to be found to ensure that the money was in the right coffers to enable Superfast
Ferries to set up shop. That seemed to me to be a ridiculously bureaucratic system.
The order will remove that problem, so if ministers in Scotland wish to support
a ferry project from Scotland to another countryrather than an internal
ferry, such as from Aberdeen to Orkneythey will be fully at liberty to do
Given that the power will come to the Scottish ministers, my only question
is what will happen to the finances that were previously available to the DTI
to support such activity in Scotland. Will that money come to the Scottish budget?
I am not sure whether that issue is linked directly to our requirement to consider
the order, but it is an obvious question that needs to be asked. I am glad that
the new powers will come, because they will remove unnecessary bureaucracy from
the system, but will the money follow with them?
The Executive note on the order mentions
for shipping services which start or finish or both outside Scotland".
that intended to cover ferry services that call in in passing?
The order covers issues that are in the justice
committees' remit and issues that are in our remit, which is why we have been
designated as a secondary committee on the order. Bruce Crawford pointed out correctly
the part of the order that relates to our remit. I note that Bruce welcomes the
transfer of the powers, but I cannot answer his question about whether there will
be a financial transfer. To answer that question, we could correspond with the
minister and ask him to send a response to the lead committee and a copy to us,
so that the lead committee has that information available to it when it considers
the order. If members are content, we will indicate that we do not wish to take
evidence on the order and that, in general, we welcome the transfer of powers,
which will simplify the process with regard to ferry or shipping services that
the Executive wishes to promote. We will ask the specific question that Bruce
Crawford raised and request that the minister send the response to the lead committee
and a copy to us prior to the lead committee's consideration of the order. Do
members agree to that action?
Members indicated agreement.
The Convener: We
have eight public petitions to consider today, some of which cover the same subject,
so we have grouped them into five headings. As we are approaching the dissolution
of the Parliament, some of the petitions that we are considering now or that we
will consider in future meetings might not be considered fully prior to dissolution.
The committee is required to refer back to the Public Petitions Committee any
petitions that do not reach satisfactory completion in our minds prior to the
dissolution. The Public Petitions Committee, when reconstituted after the election,
will decide whether to refer such petitions back to newly constituted committees.
If we do not finish the consideration of a petition between now and the dissolution,
the petition will not necessarily die. We will have the power to keep the matter
live, if we feel that further work can be done on it.
Mining (PE346 and PE369)
The Convener: At our
meeting of 9 October, we agreed to write to the Minister for Health and Community
Care to ask about research on the impact of opencast coal mining on public health.
We welcomed the indication that the relevant national planning policy guideline
was to be reviewed, but we had further questions on health matters. At that stage,
we agreed to copy any relevant correspondence to the Health and Community Care
Committee to keep it informed on the health issues.
We have now received
a further response from the Minister for Health and Community Care to our questions
on health issues; members should have a copy of that letter. Members should also
have received a copy of another letter from the primary petitioner of Scotland
Opposing Opencast's petition, who encloses some articles from The Lancet Oncology
on respiratory illness relating to pollution in the air, including particulates.
look to the committee for guidance on a suggested course of action. I suggest
that the issues that are directly within our remit, such as planning powers, have
largely been dealt with. The Executive has said that it will review the relevant
national planning policy guidelines, and the committee agreed on that way forward
when it considered the matter previously. However, questions still exist on the
health aspects of opencast mining, which have not been fully resolved and which
are outwith our direct remit. Perhaps we should, therefore, decide that although
we have concluded consideration of the aspects of the petition that are directly
within our remit, we should refer the minister's correspondence and the committee's
consideration of the health issues to the Health
and Community Care Committee, for its consideration.
I agree that we should refer the matter to the Health and Community Care
Committee. The fourth paragraph of the letter of 2 December from the Minister
for Health and Community Care states:
"The Executive's Health Department
does agree ... that there is a need for further research to address current uncertainties
surrounding the general relationship between environmental exposure to airborne
particulates and respiratory ill health."
However, it goes on to say
"The relationship between respiratory ill health and opencast
development is not regarded as a major driver".
If the Executive recognises
that there is a need for research in that area, we might legitimately ask what
it is doing to promote such research. If it is doing generic research into the
effect of particulate matter on respiratory health, it does not matter whether
the research is conducted using opencast mining or anything elsethe important
thing is that it is done. Generic research would be relevant to opencast mining
because it would still be scientific evidence about the effect of particulate
matter on health.
We should refer the matter to the Health and Community
Care Committee, but it might also be appropriate for us to write back to the Minister
for Health and Community Care, pointing out that the implication of his letter
is that the Executive should be doing something about the matter.
Crawford: I agree with the convener. The jury is out on whether there
is any point-source pollution from opencast mining operations especially because
of particulate problems. I understand that the University of Strathclyde is keen
to pursue some research on that subject, especially in the coalfield communities.
the circumstances, it is incumbent on the committee to keep the issue alive and
the only way we can appropriately keep it alive is to pass it to the Health and
Community Care Committee, to ensure that that committee is aware of the concerns.
I am not sure whether that committee will have time to do anything about it before
the dissolution of Parliament. However, at least it should make the decision to
hand it back to the Public Petitions Committee to keep the matter going and ensure
that any research that is undertaken is followed up by the appropriate parliamentary
committee. We will then be able to come to a conclusion about whether there really
are the health effects from opencast mining that people in nearby communities
John Scott: I, too, agree that someone should
examine further the health matters. I also agree that the matter should be referred
to the Health
and Community Care Committee. I presume that, if that committee does not have
time to consider the matter before the election, it will consider it after that.
Macmillan: I agree that we should refer the matter to the Health and
Community Care Committee. We should also refer that committee to the discussion
that we have had about the subject today.
There is broad agreement on the way forward. We will correspond with the petitioners
on the basis of the evidence that we have taken so far, relating to the areas
where the NPPG is going to be placed under review, and we will inform them that
we have decided to refer the health issues to the Health and Community Care Committee.
As the petition is passed to the Health and Community Care Committee, it will
be given a copy of all relevant committee discussions and any correspondence that
this committee has received on the issue. Are we all agreed?
Playing Fields (PE422,
PE430 and PE454)
The Convener: The second group
of petitions, PE422, PE430 and PE454, concern the disposal of playing fields.
When the committee considered those petitions initially, we agreed to write to
the Executive for its view on the implementation of current planning guidelines
on the disposal of playing fields. The Executive's response detailed the current
planning system, and the measures that the Executive and sportscotland have undertaken
to improve the system.
The committee then agreed to write to
sportscotland and the Convention of Scottish Local Authorities regarding their
views on the adequacy of current guidance and their implementation of the guidelines
that are currently being developed by the Executive. A cover note that was circulated
with the petition recommended thatconsidering the preparation of NPPG 3
under a policy advice note to support NPPG 11, and COSLA's and sportscotland's
comments on the current guidelines on protecting playing fieldsthe committee
may decide that there is no need to take further action at this time.
could agree to conclude consideration of the petitions and write accordingly to
the petitioners and we could provide them with copies of correspondence from each
of the bodies with which we have corresponded. I seek members' guidance on whether
they wish to accept that course of action or to pursue another.
Crawford: I understand why we might
want to do as the convener suggests, but I have two concerns about this issue.
Torbrex community council highlights a paragraph in section 77 of the School Standards
and Framework Act 1998 in England and Wales. Unfortunately, I do not know what
that legislation says about how we could strengthen the position in Scotland,
and there is no explanation in the papers. I do not feel that I have all the information
that would allow me to come to a final conclusion as far as that is concerned.
It might be that the new guidelines that are being drawn up by the Executive will
cover that legislation and might prove to be adequate.
I noted another issue
from the covering paper that does not relate to particular planning issues. Sportscotland
asked the Executive about preparing guidance on the appropriate standards for
playing field provision. So far, sportscotland has been unable to secure the Executive's
support for that work. I would have thought that that was a reasonable request
for sportscotland to make, given that such guidance would provide a framework
in which local authorities could operate in terms of planning guidelines and so
on by establishing a standard. The committee must decide whether it wants to support
sportscotland in that callI would certainly like to ask the minister why
it was rejected, because it would have been a reasonable course to take.
cut to the quick, I suggest two things. First, we should ask the minister why
the Executive did not support sportscotland's view on standards. There might a
good reason why the Executive did not support itI do not know. Secondly,
we can ask for further explanation of what section 77 of the School Standards
and Framework Act 1998 in England and Wales says and compare it with the Executive's
position in order to find the best option.
Nora Radcliffe: I
picked up on Bruce Crawford's second point. I have read the papers and it seems
to me that there is a gap between the guidance and appropriate standards it is
fine to defend the existing standards, but what constitutes reasonable provision
of playing fields? Although that matter is obviously not within our remit, we
have identified the gap, so should we draw it to the attention of the Education,
Culture and Sport Committee and ask it to pick up that detail?
Crawford: It could come under the guidelines to local authorities on
planningfor their own provision, provision on a housing estate or provision
by the education authority. If whoever forms the Government after the Scottish
election in May decides to hold a consultation on planning, the issue could be
considered as part of that. That would be a reasonable way forward for the Executive.
That is why I think that the issue falls within our remit.
Robin Harper: I agree thoroughly with what Bruce Crawford
has just said. Despite the assurances that we receive from the Executive, we continue
to lose play space and sports space.
I am not satisfied by paragraph 13
of the cover note, which states:
"The Executive response states that
... Sportscotland often negotiates alternative sports pitches with developers".
those sports pitches are a long way from areas that were local and accessible
to the people who used them. We do not want young children to have to travel ever
further to reach play spaces that should be local and accessible. We should do
everything that we can to keep the issue alive. We should be aware of the fact
that this is a cross-committee issue that also involves the Health and Community
Care Committee and the Education, Culture and Sport Committee.
Convener: I understand that section 77 of the Schools Standards and Framework
Act 1988 was addressed in previous correspondence on the petitions. That correspondence
has not been distributed with the papers for today's meeting. I suggest that we
dig it out and provide members with copies of it, so that we can consider whether
we are satisfied with its content. We can keep the petitions live in that respect,
but we do not need to write further letters on section 77 at this stage. If members
are still not satisfied after they have considered the correspondence, we can
consider taking other action.
In its response, COSLA indicates that it has
consulted section 77 of the Schools Standards and Framework Act 1988 and believes
that the current legislation is sufficient.
Bruce Crawford asked about sportscotland
and the issues that it has raised with the Executive. There seems to be consensus
among members that we should ask the Executive how it intends to respond to sportscotland
and whether it intends to issue guidelines on appropriate standards for playing
field provision. Do we agree to write to the Executive on that issue, which sportscotland
raised and which Bruce Crawford has highlighted? Do we agree to consider the petition
further once we have received a response to that question and once the correspondence
concerning section 77 has been circulated to members?
Developments (Planning) (PE425)
The Convener: Petition
PE425 concerns planning procedures for telecommunications developments. We considered
the petition before the summer recess and raised a number of issues arising from
it. The Executive has since responded
to us on those issues. The Public Petitions Committee is now asking the Transport
and the Environment Committee whether we would welcome formal referral of the
petition to us.
I remind members that we have agreed to take evidence on
the planning procedures for telecommunications developments. We could consider
the issues that the petition raises at the meetings that we have scheduled over
the next few months and advise the Public Petitions Committee that we have already
decided to review the planning process for telecommunications developments and
will be happy to advise it and the petitioners of any thoughts that we have once
we have completed that process.
Angus MacKay: What does
a formal referral of the petition mean?
The Convener: The
Public Petitions Committee has not formally referred the petition to us for detailed
consideration. The Public Petitions Committee is asking us whether, on the basis
of the Executive's response, we want the petition to be referred to the Transport
and the Environment Committee. We could then consider the petition by taking evidence,
appointing a reporter, corresponding with the Executive and taking whatever other
action we deemed fit. We are agreed that we will conduct a review of the committee's
work on the subject and of the experience of implementing the new regulations
that the Executive has introduced. I suggest that that work overlaps with the
issues that the petitioner has raised and that we should continue with the work
that we envisaged carrying out. We should agree to advise the Public Petitions
Committee of that and say that we will advise it of our conclusions. The petitioners
can then be advised in due course.
Angus MacKay: I am happy
with that approach if it means that we will carry out most of the activities that
we would have to do if the petition was formally referred to us anyway. It is
a preamble, at least, to gathering evidence.
Have we already informed the
petitioners that the committee intends to take evidence? If not, it would be sensible
to write directly to the petitioners to inform them of that and to tell them that
we will consider whether the petition should be referred formally to us subsequent
to that evidence-taking process. We could invite them to consider giving evidence
during that process.
The Convener: Yes.
Harper: Will we give early consideration to what evidence we are going
to seek? I am thinking in particular of evidence on mast sharing. Will we write
to telephone companies and local authorities to ask whether any progress has been
made on that? That should be done well in
advance of the committee taking evidence so that we can be prepared.
Convener: We are delving into the areas that we will review when we consider
the implementation of the new guidelines. We do not have to do that at the moment.
Harper: I was not saying that we should do it now; I was asking whether
that should be scheduled.
The Convener: Later today, we
will consider our approach to the review and we can discuss those issues then.
has been suggested that, instead of the approach that I proposed, we should ask
for a formal referral of the petition so that it becomes part of the evidence
that we consider in our review of the developments in telecommunications. That
seems to be a sensible approach. Are we agreed that that is what we should do?
We can then advise the petitioners that their petition will be considered as part
of our overall review of telecommunications developments and that they will be
kept abreast of our conclusions.
Angus MacKay: Does that
mean that we have to ask for a formal referral?
The Convener: If
we ask for a formal referral, the petition becomes part of the evidence that we
consider as part of our review.
Fiona McLeod (West of Scotland)
(SNP): My remarks have been pre-empted. I wanted to speak in support
of the recommendation that we seek a formal referral. You have just outlined my
reason. Earlier, you said that we would just inform the Public Petitions Committee
of our inquiry, but it is important that we have a formal referral so that the
petition becomes part of our telecommunications inquiry. Then it will be able
to inform the questions that we ask during the review and we will be able to satisfy
Angus Mackay's request by keeping the petitioners informed. By making the referral
formal, the petitioners have to be kept informed of what we are doing. I recommend
that we ask for a formal referral and do not just make an announcement to the
Public Petitions Committee.
The Convener: Are we agreed
Members indicated agreement.
The Convener: That brings us
to petition PE508, on the implementation of environmental impact assessments.
This is the first time that we have been asked to consider this petition, which
calls for Parliament to review the implementation of environmental impact assessments
and policy advice note 58 guidelines. The petition derives from the petitioner's
experience of the applications
by West of Scotland Water and Scotland Water for a water treatment plant in
Milngavie. The committee's stance on petitions that relate to local issues is
not to consider specific incidents. We consider such petitions only if they raise
issues for the wider planning framework. I ask members to comment on the recommendations
that were circulated with the covering note. I would like to know what course
of action members would prefer us to follow.
It is tempting to get dragged into the original issue raised in the petition,
because it was so tortuous. There are lessons to learn about how consultation
should and should not be carried out. Particular elements of the community in
the area around the Milngavie development proposals rightly have a grievance about
the consultation process. I hope that the appropriate bodies have learned something
from the harsh lessons of the recent past.
The convener has rightly asked
us to consider the wider strategic issues. Strathblane community council's petition
asks us to examine two issues that are not specific to the Milngavie application,
but which are of wider significance. The first is a statutory requirement to consult
appropriate community councils. I was surprised that that requirement does not
exist. I thought that it did, but there you go. The second is the fact that developers
who pay consultants to do environmental impact assessments also set the consultants'
remits. The petitioners rightly ask whether it might not be more appropriate for
local authorities to set a consultant's remit and, indeed, choose the consultant.
Developers should still pay the costs, because it would not be appropriate for
local authorities to do so. Those two issues are strategic in nature and are not
associated only with the water treatment plant for Milngavie.
I was a bit
surprised by the Executive's blunt refusal to re-examine those particular issues.
I would have thought that it is reasonable for appropriate community councils
to be statutorily consulted about planning applications and that we could re-examine
the whole issue of choosing, paying and setting the remit for consultants in relation
to environmental impact assessments, particularly as there is no third-party right
of appeal for parties who want to object to a development going ahead.
Executive might not want to consider such issues in isolation, but a planning
review has been promised and, for the life of me, I cannot understand why the
Executive could not consider those particular aspects as part of that overall
planning review. The Executive will have to open the Pandora's box of planning
anyway, so surely
we should examine every aspect of it. We should have proper consultation on
whether community councils should be statutory consultees and on who should choose,
pay and set the remit for consultants who do environmental impact assessments.
It is only fair that we go back to the Executive and ask whether it is prepared
to re-examine those areas as part of its wider planning review; otherwise what
is the point of having such a review?
Robin Harper: Bruce
Crawford took the words out of my mouth. I agree with everything that he said,
particularly about consultants. I agree that developers should pay for them, but
it would be much more sensible, and signify greater transparency, if a local authority
committee appointed the consultants.
Fiona McLeod: If we
state in our recommendations that it might be appropriate to conclude the petition
now, what does that mean? Would we not write to the Executive with Bruce Crawford's
suggestions, which Robin Harper supported? PE508 refers to a specific case, with
which I have been heavily involved for over a year, so I have a degree of insight
to back up Bruce Crawford's request that we should bring the issue to the Executive's
attention for any future review of planning. The Executive states in its response
that it does not intend to review either the process of environmental impact assessments
or the PAN58 guidelines; it is being blinkered, and we must remove those blinkers
and ensure that it reviews the guidelines.
I am involved in the case and
with another local issue regarding the extension of a quarry, and it has become
apparent that environmental impact assessments are not being accorded the status,
weight and priority that they should be in the preparation of planning applications.
The committee must review the EIA process to ensure that my opinion, which is
gained from my experience with two local cases, is not generic to all planning
As the environment committee, we are concerned that all planning
applications take the environmental impact into consideration, and it would be
useful to consider how the process works and whether EIAs are being accorded the
status that they should enjoy.
John Scott: I agree with
everything that has been said. It is vital that consultation is seen to be done.
That is where the process has broken down. Like Bruce Crawford, I thought that
community councils would be one of the statutory consultees and I am surprised
that they are not. It is right that all those matters, especially the weighting,
should be considered. In fact, the weighting that environmental impact assessments
have in the new planning bill should, perhaps, be a matter for
The Convener: A degree of confusion
may have arisen. The Executive's response on the question of consultation states:
accordance with the EIA Directive, the legislative requirements for public consultation
in relation to the EIA process are tied to the submission of an environmental
statement. Environmental statements must be advertised and the public given an
opportunity to comment. These arrangements are in addition to the normal public
consultation requirements associated with planning applications, which include
neighbour notification and consultation with community councils. PAN 58 recommends
even earlier consultation with the public in relation to EIA, at the scoping stage
The question of consultation may have caused confusion,
but it does not seem that community councils are excluded from the process.
Scott: That they appear to feel that they have been excluded is bad,
and, according to the correspondence, they appear not to have been aware of the
consultation process until the decision was taken.
I understand your point, convener. You are right to say that community
councils are consulted about the process, but statutory consultation requires
that the appropriate community councils be contacted directly by developers as
part of the notification process. I am not sure that PAN 58 covers that aspect
of the process, and that is the distinction that must be made.
Convener: It seems likely that major planning legislation will be introduced
in the new session, and it is unlikely that major planning changes will be effected
between now and the dissolution of Parliament. Therefore, perhaps several of the
issues raised by PE508 would best be addressed when the Parliament is considering
what changes it intends to make to planning legislation in general.
if we want to explore any of those questions, we could do so at the meeting that
we have scheduled with the minister and the head of planning on general planning
issues. We could notify the minister that we want to explore those issues as part
of that meeting. Once we have talked to the minister, we could decide whether
there is anything further that we need to do in relation to the petition.
Crawford: That seems reasonable. When has the meeting with the minister
and the head of planning been scheduled for?
The date has not been fixed yet. The clerks and the minister are negotiating.
Crawford: Will we get a paper that outlines the areas that we will discuss
at that meeting?
The Convener: Yes.
Bruce Crawford: That
is fine with me, then.
The Convener: Do we agree that we
should explore this matter in the meeting that we have scheduled with the minister
and the head of planning?
Water Treatment Plants (PE517)
The Convener: Today's final petition deals with the environmental
and planning issues relating to water treatment plants. This is the first time
that we have considered the petition, which calls on the Parliament to investigate
local authority regulation of water treatment plants as regards environmental
protection and planning legislation, to investigate possible solutions to the
problem of noxious odours and airborne bacteria from such plants and to investigate
the level and method of investment needed to prevent the release of noxious odours
and airborne bacteria.
I ask members to note that Susan Deacon, who is unable
to attend the meeting today, has indicated an interest in the issue and members
should have before them comments that she has submitted by e-mail.
Macmillan: This is an extremely important petition and deserves a lot
of study. My concern is that we do not have time in this session of Parliament
to do it justice.
The petition addresses the problem of odour, which seems
impossible to deal with. We have come across it in relation to the spreading of
organic waste and the burning of animal carcases in the Carntyne incinerator.
We have to get to grips with the problem.
It is suggested that we write
to the Executive for further information, particularly on how to achieve odour
control. I have had personal experience of similar cases and I know that it is
difficult to get local authorities to agree that there is a problem. In this instance,
however, it seems that the Scottish Environment Protection Agency is not taking
responsibility either. The review of SEPA's responsibilities has not yet concluded
and I hope that, when it is concluded, the gaps surrounding the issue of odour
control are identified.
As the matter needs a great deal of investigation
and input, which will take time, I think that we should also refer the petition
back to the Public Petitions Committee so that, after the election, the petition
can be picked up again by whatever committee has transport within its remit.
MacKay: It is unfortunate that, because of her family bereavement, Susan
Deacon cannot be here as I know that she has thrown herself into
the issue energetically. She has sympathy with the position of the petitioners
and has an informed view of the matter, given the particular interest that she
has taken on the issue.
Trying to reflect Susan Deacon's views and the broad
concern that members of the committee no doubt have, I would say that the number
1 priority is that this issue should not be lost simply because we are approaching
the election. We need to find a way of parking it effectively so that we can be
reasonably confident that it will be dealt with by the appropriate committee after
My heartfelt sympathies go out to the petitioners and the
people living in the area. While it does not form part of the Edinburgh constituency
that I represent, I know the area reasonably well. The petitioners must be at
their wits' end, as it is particularly difficult to persuade people who do not
live in the immediate environment that there is a problem or that something needs
to be done about it. Like noise caused by nuisance neighbours, the nature of odour
means that it is not necessarily always present. Residents in those circumstances
have difficulty persuading appropriate public agencies that there is a problem
because people from those agencies are not there when the problems occur. Odours
can consistently occur at certain times of the day or week and can make people's
lives a misery. I hope that the committee will take a proactive stance on this
petition, as the matter pertains not only to the people living in the affected
part of Edinburgh, but is replicated across Scotland. Effective action must be
Bruce Crawford: Angus MacKay's final
point is correct: this issue affects all of Scotland. As Maureen Macmillan pointed
out, we have come across the problem before in relation to cattle incinerators,
chicken litter and sewage plants. As Angus MacKay said, the folk involved must
be at their wits' end. In Kirkcaldy, in the region that I represent, a sewage
plant is causing a similar problem and the people are at a loss as to what to
do about it.
As far as I am aware, the only legislation that has any effect
is that which enables local authorities to act in relation to a nuisance of odour.
However, the problem is that it is difficult to measure odour. It is down to the
particular environmental health officer, together with the complainants, to take
an action in court. The only successful case that I know of involved chicken litter
in Kinrosshire. I was one of the councillors involved in the prosecution on behalf
of the community. Odour is extremely difficult to control and it is difficult
for local authorities to deal with. The legislation is difficult to enforce because
you cannot measure odour.
The best way of keeping the petition alive might be to ensure that it gets
to the committee whose remit includes transport after the election. That committee
could give detailed consideration to the complex and wide-ranging issues that
are involved. If we began a process of investigation, we would not be able to
complete it and the job would be left half done. We need to ensure that a committee
can present a recommendation to the Executive that will strengthen the legislation
and give some succour to people who live in the affected areas.
Convener: If we initiate action, that would not stop us ensuring that
the petition is referred to the relevant committee that is established after the
election. It would be difficult for a reporter to complete the work in the time
that is available, but we could raise the issue with the Executive. At a subsequent
date, we could refer all the correspondence to the Public Petitions Committee,
which would then refer the petition and the accompanying correspondence to the
relevant committee after the election.
Robin Harper: We
must remember that there are technical ways of solving the sewage odour problem.
The documentation that accompanies the petition gave us the details of that. The
question is whether Scottish Water can be convinced to introduce the updated equipment
or whether the Parliament will need to legislate to force it to do so.
Scott: I agree with everything that has been said. This is an important
issue and we should either refer the petition to the Public Petitions Committee
now or do so after getting a response from the minister.
I would like to
know what the European position is on the matter of nuisance odours. Without meaning
to be uncomplimentary, I would suggest that the issue is more of a problem in
Europe, where temperatures are higher, than it is in Scotland. If European countries
have come up with a satisfactory way of dealing with the problem, the Scottish
Parliament, following a report by a committee, might want to consider introducing
legislation to require minimum standards to be introduced by Scottish Water and
There is a huge amount of work to be done on this. For example, the
Health and Community Care Committee might need to consider what the health implications
are. We can only scratch the surface prior to the dissolution of Parliament. Nonetheless,
we should write to the minister and try to start the process by gathering as much
information as we can because, as others have said, this is a problem that affects
people across Scotland.
The Convener: I hope that your party leadership has authorised
your suggestion that we look to Europe to provide an answer.
Scott: I am not too bothered about that.
When we write to the Executive, we should ask about SEPA's responsibilities.
As far as I am aware, SEPA does not have responsibility for sewage works. As I
said earlier, the review of SEPA's responsibilities has not yet concluded. We
could ask when the review will be concluded and whether the outcome will include
consideration of odour control.
The Convener: There is
broad agreement that this issue must be addressed and recognition that it would
be difficult for this committee to conclude consideration of the petition before
the dissolution of Parliament. Do we agree to write to the Executive about the
issues that are raised by the petition and the points on SEPA that Maureen Macmillan
Members indicated agreement.
Convener: Once we have got that response, we will formally refer the
petition back to the Public Petitions Committee in order to keep it live over
the election period.
Agenda item 6 concerns consideration of a motion for the debate next week on our
report on the rail industry. The debate will last two hours. The proposed motion,
which members have before them, is straightforward and reads:
the Parliament notes the 15th Report 2002 of the Transport and the
Environment Committee, Report on Inquiry into the Rail Industry in Scotland."
we agree to submit the motion as drafted?
The Convener: We now move into private session to consider
a paper on a possible approach to the committee's examination of developments
following the publication of its report into telecommunications developments in
Meeting continued in private until 11:50.