COUNCIL CHAMBER, 6th Floor, Fife House, North Street...

Environment, Finance & Corporate Services Scrutiny Committee

COUNCIL CHAMBER, 6th Floor, Fife House, North Street, Glenrothes Tuesday, 8th April, 2014 - 1.30 p.m. NOTE: Following the formal Committee business, there will be a Discussion Forum

for Committee Members/Officers only on progress in relation to the Scrutiny Role of this Committee.

________________________________________________________________________

AGENDA

Page Nos.

1. APOLOGIES FOR ABSENCE. 2. DECLARATIONS OF INTEREST - Members of the Committee are

asked to declare any interest(s) in particular items on the agenda and the nature of the interest(s) at this stage.

3. MINUTE - Minute of Environment, Finance & Corporate Services

Scrutiny Committee of 18th March, 2014. 1 - 6

4. CALL-IN - There are no call-in decisions of the Executive Committee

for consideration.

5. INFORMAL WORKING GROUPS - Members will be asked to

provide updates on informal working groups as follows:- (a) Disposal of ICT Hardware (b) Operation of Fife Council Planning (Including Major Planning

Applications) (see Item 6. below) (c) Operation of Fife Council Planning Website (d) Dunfermline Flood Prevention Scheme (e) Carnegie Leisure Centre - Lessons Learned/Ensuring Best

Practice (f) Public Transport Accessibility (g) Parkgate Community Leisure Centre (h) Property Asset Management Plan to 2017 (i) Wind Turbine Development - Visual Impact of Photo Montage (j) Wind Turbine Development - Fife Council’s Own Project

Proposals

6./

- 2 -

Page Nos.

6.

OPERATION OF FIFE COUNCIL PLANNING, INCLUDING MAJOR PLANNING APPLICATIONS - Report by Head of Enterprise, Planning & Protective Services.

7 - 34

Michael Enston, Executive Director, Corporate Services. Fife House, North Street, Glenrothes, Fife. KY7 5LT 1st April, 2014 If telephoning, please ask for:- Diane Barnet, Committee Administrator, Fife House, Glenrothes Telephone: 03451 555555 Ext. 442334 or E-mail: [email protected] Agendas and papers for all Committee meetings can be accessed on www.fifedirect.org.uk/committees

2014.EFCSSC.134

THE FIFE COUNCIL - ENVIRONMENT, FINANCE & CORPORATE SERVICES SCRUTINY COMMITTEE - GLENROTHES 18th March, 2014 1.30 p.m. - 4.00 p.m. PRESENT: Councillors Dave Dempsey (Chair), Tom Adams, Bill Brown,

Altany Craik, David Mogg, Ross Vettraino, John Wincott and Bob Young.

ATTENDING: Ken Gourlay, Head of Asset and Facilities Management Services; Alan

Paul, Senior Manager, Property Services, Chris Ewing, Senior Manager, Sustainability, Angus Thomson, Senior Manager (Catering & Cleaning & Facilities Management), Allan Barclay, Service Manager, Maintenance, Mechanical & Electrical, Asset and Facilities Management Services; Eileen Rowand, Head of Revenue & Exchequer Services, Jackie Johnstone, Accountant, Finance & Resources; Lynne Harvie, Senior Manager (Improvement & Customer Services), Mike Melville, Team Manager/Adviser (Committee Services); and Diane Barnet, Committee Administrator, Corporate Services.

APOLOGIES FOR ABSENCE: Councillors Kay Carrington, Donald Macgregor and Elizabeth Riches. 181. DECLARATIONS OF INTEREST Councillors Wincott and Vettraino declared an interest in Item 186. ‘Asset & Facilities

Management Services Performance Monitoring’,in particular, ‘Service Plan Theme – Leading on the Council’s "Promoting a Sustainable Society" Agenda’ (due to their membership of the ALO (Arms Length Organisaton) - the proposal to ‘move to Arms Length Organisation’).

182. MINUTES The Committee considered the following minutes:- (a) Joint Scrutiny Working Group of 24th February, 2014 Decision The Committee:- (1) noted the minute; and (2) agreed that a copy update of the actions arising from the minute be sent

to Members. (b)/

Environment, Finance & Corporate Services Scrutiny Committee 8th April, 2014 Agenda Item 3

1

2014.EFCSSC.135

(b) Environment, Finance & Corporate Services Scrutiny Committee of 25th February, 2014

The Committee approved the minute. 183. VALEDICTORY The Committee congratulated Councillor Gavin Yates on his appointment as

Executive Spokesperson for Community Health and Wellbeing and thanked him for his valued contribution to the Environment, Finance & Corporate Services Scrutiny Committee.

184. CALL-IN Decision The Committee noted that there were no call-ins of decisions from the Executive

Committee meeting of 4th March, 2014. 185. INFORMAL WORKING GROUPS (a) Disposal of ICT Hardware Decision The Committee noted that the relevant officers(s) were making progress with

respect to ascertaining demand for ‘recycled’ computer hardware. (b) Operation of Fife Council Planning (Including Major Planning Applications) Decision The Committee noted that a report in response to the list of queries on the

operation of the planning functions set out by the Group was due to be considered at the next or subsequent meeting of this Committee.

(c) Operation of Fife Council Planning Website Decision The Committee noted an update by Councillor John Wincott - that progress

was being made on improvements to the Fife Council Planning Website in conjunction with Fife Council IT Service and IDOX, the planning website service provider.

(d) Dunfermline Flood Prevention Decision/

2

2014.EFCSSC.136

Decision The Committee noted that a detailed report was due to be submitted for

consideration in April/May and that monthly updates would continue to be circulated for information in the interim.

(e) Carnegie Leisure Centre - Lessons Learned/Ensuring Best Practice Decision The Committee:- (1) noted the update on the fixing of residual faults - which had been

remitted to the City of Dunfermline Area Committee to oversee; and (2) agreed that Councillor Dempsey would continue to progress, with the

Head of Service, the lessons learned which had informed future best practice.

(f) Public Transport Accessibility Decision The Committee noted that:- (1) the ScotRail and Stagecoach information leaflets - ‘Helping Older and

Disabled Passengers’ and ‘Making Your Journey Easier’, respectively, had now been distributed; and

(2) a press release had not yet been issued as quotes were being sought

from other organisations, in addition to Fife Council, to be included in a larger piece.

(g) Short-Life Informal Working Groups - Wind Turbine Development Decision The Chair advised that a request for scrutiny had been informally requested

regarding wind turbine development and agreed the following membership of short-life informal working groups:

(1) visual impact of photo montage - Councillors Dempsey and Wincott to

meet with Enterprise, Planning & Protective Services; and (2) Fife Council wind turbine projects on council buildings/land - Councillors

Dempsey and Craik to progress. 186./

3

2014.EFCSSC.137

186. ASSET & FACILITIES MANAGEMENT SERVICES PERFORMANCE MONITORING

The Committee considered a report by the Head of Asset and Facilities Management

Services, detailing progress against the Asset and Facilities Management Services Service Plan, including information on the planned service outcomes and actual performance against targets, alongside financial information demonstrating the cost of those outcomes and areas where savings had been delivered or were planned.

In addition, the Committee received a presentation by the Senior Manager, Catering

& Cleaning and Facilities Management Services, providing information on: school catering; commercial catering, including meals on wheels; building cleaning; industrial cleaning, including house clearance, sharps and needle sweeps; and examples of savings delivered across the Catering & Cleaning and Facilities Management Services.

C Decision Following in-depth scrutiny of the information provided in the report and appendix

and information contained in the presentation on the Catering & Cleaning and Facilities Management Services, the Committee:-

(1) noted the presentation; (2) noted the performance, expenditure and activity based information as detailed

in the report and appendix; (3) agreed that the future work programme include items relating to:

review of Central Support charges;

the impact on clients of the imposition of savings targets on contracting services; and

the introduction of Shared Support Services;

(4) requested information in relation to the marketing of the commercial catering

standard kitchen/refurbished facilities at City Chambers, Dunfermline, and remitted to the City of Dunfermline Area Committee for further consideration;

(5) remitted to the Executive Director, Corporate Services - in consultation with

the Chair of the Regulation and Licensing Committee, as appropriate – to advise the process and lead service to progress a Council policy decision on imposing a suitable minimum distance from Fife’s schools for the operation of mobile fast-food units as these were impacting on the uptake of school meal provision;

(6) requested further information on targets for capital receipts; and (7)/

4

2014.EFCSSC.138

(7) agreed to consider the allocation of targets at the review of the Committee’s operation - at its meeting on 8th April, 2014.

Councillor Young left the meeting during consideration of the above item, leaving the

meeting inquorate. 187. BANKHEAD CENTRAL: DEPOT RATIONALISATION The Committee considered a report by the Head of Asset and Facilities Management

Services providing an update on the current performance and activity on the Depot Rationalisation Programme (Bankhead) as detailed in the report.

C Decision The Committee:- (1) noted that delivery of the programme in terms of timescales and budget had

been challenging but that outcomes were compliant in terms of the Depot Rationalisation Programme’s ‘blueprint’ and approved business case;

(2) requested the following:-

information from the ‘Risk and Issues Log’ for any future substantial Depot/Office Rationalisation Programmes, as appropriate;

details of energy efficiency improvements as a result of the Programme; and

an update on progress in relation to disposal of surplus properties

vacated during the course of the Programme; and (3) noted that a final report on the Depot Rationalisation Programme (Bankhead)

would be submitted for the consideration of this Scrutiny Committee at the conclusion of the Programme.

188. REQUESTS FOR SCRUTINY (a) Parkgate Community Leisure Centre The Committee considered a request for scrutiny from the South West Fife

Area Committee meeting of 19th February, 2014 on Parkgate Community Leisure Centre.

C Decision The Committee agreed that Councillor Dempsey would seek clarification on

the particular aspects of this issue requiring scrutiny at the next meeting of the South West Fife Area Committee.

(b)/

5

2014.EFCSSC.139

(b) Property Asset Management Plan to 2017 The Committee considered a request for scrutiny from the Executive

Committee meeting of 4th March, 2014 on the Property Asset Management Plan to 2017.

C Decision The Committee agreed that a short-life informal working group, comprising

Councillors Dempsey and Wincott, would meet with relevant officer(s) to consider the main issues for further scrutiny at a future meeting of this Scrutiny Committee.

__________________________

6

Environment Finance and Corporate Services Scrutiny Committee

8th April 2014

Agenda Item No. 6

OPERATION OF FIFE COUNCIL PLANNING, INCLUDING MAJOR PLANNING APPLICATIONS

Report by: Robin Presswood, Head of Enterprise, Planning and Protective Services

Wards Affected: All

Purpose

The purpose of this report is to present an Improvement Plan to the Committee for consideration and approval, in response to the list of queries on the operation of the planning functions set out by the Scrutiny Committee Working Group.

Recommendation(s)

It is recommended that the Committee:-

Sets out any further queries/comments following consideration of the report and

the Appendices.

Considers and approves the recommended actions and improvements set out in the Improvement Plan (Appendix 1).

Agrees if any further review work or scrutiny is required and the scope of that review

Agrees whether the report, or any part of the report, should be referred to one or more Area Committee for scrutiny from an area perspective.

Resource Implications

There are some small, direct resource implications related to the staff time involved and the publication of advice/guidelines but these costs will be met from existing revenue budgets.

Legal & Risk Implications

Fife Council as Planning Authority requires to carry out its statutory planning duties in accordance with the relevant legal and procedural provisions. It is also good practice to look at lessons learned and consider improvements to processes and procedures where considered necessary. Appendix 5 refers to other areas of current work which relate to aspects of the current review areas identified by the Scrutiny Committee

7

and these will, as appropriate, introduce further improvements to planning processes. Reference is made to the ability to exceed the minimum legal requirements set out in the legislation, should this be a policy or customer driven choice e.g. neighbour notification distances, consultation timescales and this is agreed as further good practice. In determining this aspect it is important not to prejudice or cut across other Council initiatives such as, Best Place to do Business, by placing additional burdens on investment and employment opportunities.

Impact Assessment

No equalities impact assessment has been carried out and it is not considered that the matters covered off in this report will have any impact on minority groups. The Committee are already aware of the separate recommendations for Lomond Quarry set out in the Independent Review referring to mediation and Cognitive Behaviour Therapy and similar treatments being made available for the local community in Leslie.

Consultation

The Executive Directors of Environment, Enterprise & Communities and Corporate Services have been consulted in the preparation of this report. The detailed questions and queries identified by the working group have been considered by senior staff in Enterprise, Planning and Protective Services in consultation with the Chief Legal Officer. Legal, planning and enforcement staff involved directly with the handling of the original Lomond Quarry planning application, have also been included in internal consultations and discussions.

1.0 Background 1.1 A request for scrutiny was submitted to the Committee from Councillor John Wincott.

The terms of the request were as follows:-

“I am calling for a full scrutiny of the operation of Fife Council planning, particularly the following:

1. How planning reports are prepared and presented, and how recommendations are arrived at.

2. How planning conditions are set – are they enforceable, or is there another measure which needs to be included?

3. How Section 75 (planning agreements) are drawn up – the delegated powers of the officers when compiling them, compared with information they give to elected members when they make a decision”.

1.2 The request for scrutiny was to be based on the Independent Review into the blasting at Lomond Quarry, Leslie, and may also include one further planning consent which is also causing concern.

8

1.3 No other planning consents were considered directly in the officers assessments of the issues presented by the Scrutiny Committee, and although the basis of the questions and queries were based on the Independent Review into the Lomond Quarry planning application and the consideration of the original planning Committee report, the final considerations are based on key lessons learned from the planning application process and the Independent Review by Capita Symonds as well as other, related processes set out in Appendix 5. There are clear, common and generic suggestions for improvements and actions set out in these separate documents and it is important that they are read together and integrated into a single Improvement Plan or at least a single, co-ordinated approach to major planning applications.

2.0 Issues and Options 2.1 The issues and concerns raised are generic in nature in as much as they are seeking

improvements and the identification of best practice, based on the feedback and lessons learned from the handling of the original Lomond Quarry planning applications and the related information, officer assessments and the related decision making processes.

2.2 It is considered that there are no alternative, realistic options for consideration by the

Committee other than to consider the recommendations being put forward for improvements and actions as they relate to the identified issues. The Improvement Plan is set out in Appendix 2 and it has benefitted from the outcomes and recommendations from the other related processes summarised in Appendices 3 and 4.

3.0 Conclusions 3.1 The discussions with the Scrutiny Committee and particularly the Working Group

have identified areas where planning procedures can be improved or communicated in a more comprehensive fashion to ensure that the Committee in reaching final decisions on officers reports and recommendations is aware of all the relevant facts, including references to best practice, national guidance which is being followed or not, and the details of planning conditions and legal agreements. The need to communicate post decision correspondence and post Committee decision adjustments/variations is also highlighted.

3.2 Taken together with the other related recommendations and actions it is concluded

that the processing of all major applications will be improved for all the stakeholders involved, and particularly in the case of subsequent major planning applications for mineral extraction.

List of Appendices

1. Improvement /Action Plan recommendations 2. Officer responses to the individual questions and issues raised by the Scrutiny

Committee 3./

9

3. Action Plan agreed as part of Audit Services investigation into opencast sites in Fife.

4. Independent Review Report to East Ayrshire Council re opencast coal sites 5. Diagram of relevant studies and reports with related actions, improvements

and recommendations. Background Papers http://www.scotland.gov.uk/Resource/0043/00439587.pdf

http://docs.east‐

ayrshire.gov.uk/CRPADMMIN/2012%20AGENDAS/COUNCIL/28%20JANUARY%202014/Item%201%20‐

%20Independent%20Review%20‐%20%20‐%20Coal%20Report%20‐January%202014%20(4).pdf

http://docs.east‐

ayrshire.gov.uk/CRPADMMIN/2012%20AGENDAS/COUNCIL/28%20JANUARY%202014/SW%20Final%20Reda

ctions%20Full%20Report.pdf

http://docs.east‐

ayrshire.gov.uk/CRPADMMIN/2012%20AGENDAS/COUNCIL/28%20JANUARY%202014/Report.pdf

http://docs.east‐


%20Independent%20Review%20CE%20Response%20‐%2022%20January%202014.pdf

http://docs.east‐


%20Progress%20Update%20on%20Recommendations%20from%20Council%20‐%20Final.pdf

Guidance on the Role of Councillors in Pre-Application Procedures, February 2014. (Commission for Ethical Standards in Public Life in Scotland, Scottish Government and COSLA) Report Contact: Jim Birrell Senior Manager, Planning Kingdom House, Glenrothes Telephone 03451 555555 442288 E Mail- [email protected]

10

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4 12

APPENDIX 2

Operation of Fife Council Planning (Including Major Applications) Environment, Finance and Corporate Services Scrutiny Committee

Questions for Scrutiny from the Working Group

The questions received from the Scrutiny Committee are divided into those applying to the planning application/permission 09/01492/EIA (Lomond Quarry) and those of a

general nature. The report is in 3 Parts relating to the 3 separate areas of scrutiny. The original ordering and numbering has been changed to fit the format of this

Appendix.

13

Questions

1. How planning reports are prepared and presented and how recommendations are arrived at.

Section A - Lomond Quarry Planning Application Matters

Q1. For this application, please provide copies of all correspondence between planning and Environmental Health Officers regarding buffer zones. Response: There was no correspondence relating to buffer zones.

2. Regarding proximity of quarries to communities, PAN 50 states: “12. Residents living in close proximity to proposed workings may be exposed to some or all of the effects referred to above, to a greater or lesser extent. NPPG 4 fully acknowledges the sensitivities that can arise in such circumstances. Accordingly, it is for planning authorities to take particular care in respect of the conditions they attach to any consent they may be minded to give for working in close proximity to settlements. Where they judge that mitigation measures are not sufficient to safeguard the quality of the local environment, outright refusal or restriction of the proposal may be appropriate. 13. While in the past consents have been given for mineral extraction in close proximity to residential property, experience indicates that in some circumstances it may be difficult to provide adequate protection for nearby residents despite requirements for landscaping works such as bunds, screening and planting, especially where the workings will have an extended life. The negotiation of adequate separation distances should therefore be sought in respect of new proposals where appropriate. Current practice on appropriate distances appears to vary considerably. 14. The aim should be to agree a distance that is reasonable, taking into account the nature of the mineral extraction activity (including its duration), location and topography, the characteristics of the various environmental effects likely to arise and the various amelioration measures that can be achieved. Agreement on an acceptable separation distance at an early stage in the formulation of proposals may help allay many of the concerns of local residents. Working in close proximity to residential property should only be contemplated in exceptional circumstances e.g. where there are clear, specific and achievable objectives e.g. for the removal of instability and preparing land for subsequent development. But such working should be for a limited and specified period without scope for extension. However, the removal of the potential dangers associated with former shallow mining e.g. subsidence, old mine shafts etc., can in itself be an advantage to the local community especially where the restored site has recreational potential.” This quarry operates 55m from the nearest residence, and 20 buildings (some of which contain four flats) are within 100m.

14

Q2. Where in the planning report to the committee does it mention this aspect of

PAN 50, and the ‘exceptional circumstances’ pertaining to this application? Response: - Para 2.8.1 briefly summaries the key aspects of PAN50. As will be appreciated, officers do not quote verbatim as key documents are referenced in the report and listed as Background papers. The document is again referenced at Paras 2.8.2, 2.8.4 and 2.8.5

Q3.Why are there no conditions relating to the PAN 50 advice ‘such working should be for a limited and specified period without scope for extension’?

Response: - PAN50 is an advice note for Planning Authorities in relation to mineral workings and associated amenity issues and does not offer detailed conditions. Following the advice of PAN50, and the mitigation measures proposed within the ES, a robust set of conditions suitable for a quarry of this nature were recommended to Committee. It should be noted that Condition 10 limits this permission to 20 years which is technically a “limited and specified period” suitable for an operation of this nature.

4. The planning report states:

“PAN50 also recommends that separation distances for residential properties/communities should take account of topography, duration and the characteristics of the effects. There is no recommended minimum separation distance.”

Q4.What account of “topography, duration and characteristics of the effects” was considered? Response: - These factors were taken in to account in the officer overall assessments. Along with the comprehensive chapter in the ES and the Public Protection Team’s comments, these shaped the eventual recommendation including conditions.

Q5.Where is the evidence of this in meeting minutes, emails, etc.? Response: The planning assessment i.e. the report of handling.

Q6. In the planning report, where is the advice to members detailing any departures from PAN 50 or other Advice?

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Response: There are no departures as the PAN is only advice and is not statutory or mandatory policy. PAN50 is referenced throughout the report.

7. PAN 50 also states that in best practice planning authorities should “encourage elected members to visit sites before making judgements”.

Q7. Why was this not done in this case? Response: - This is not a matter for the officer’s report. Members of the Glenrothes Area Committee were well aware of the location of Lomond Quarry and were provided with a detailed PowerPoint presentation which included aerial photographs and site/location plans. Members of the Committee had the opportunity to continue the application subject to a site visit. From the nature and extent of the Committee discussions, all Members were fully aware of where the quarry was and the relationship to Leslie. Even when site visits are requested not all members of the Committee can/do attend. The specific knowledge of any site differs amongst the local councillors in any event.

8. For this application, please provide copies of all correspondence between planning and EH regarding the Environmental Statement.

Response: All correspondence will be made available to Committee members as required.

9. For this application, please provide copies of all correspondence between planning and EH regarding noise/dust/blast monitoring

Response: All correspondence will be made available to Committee members as required.

10. Regarding monitoring of blasting and compliance with blast levels, PAN 50 Annex D states:

“82. In determining the specific time period, consideration should be given to the anticipated frequency of blast events in order that a representative number can be assessed. It may also be necessary to consider what time period would be representative of any site variations in blast locations and/or design where appropriate. 83. In order to be able to assess compliance with the 95% probability criterion, the number of blasts considered should ideally be 100 or greater. However, in practice it would be unreasonable to extend the time period greater than 12 months before an assessment could be undertaken even if the number of

16

events is relatively small. Blasting within opencast coal sites is within specific cuts or linear areas of a site which progress across the excavation area relatively quickly compared with the progress of quarry faces. Hence, a suitable time period for an opencast coal site may be that time typically taken for any one cut to be fully worked. A minimum time period of 3 months would generally be considered as sufficient to be representative of blasting variations within both opencast coal sites and quarries. 84. The values chosen should recognise the fact that blasts in practice must be designed so that the intended level of 95% confidence is rarely approached or exceeded. In theory therefore, blasts must be designed for mean or average vibration values of around half of the 95% confidence level. In practice, more values will in fact be generated below this average value.”

Q10. Why, in this application, did the officers fail to set any time period for the determination of the 95% confidence?

Response: The recommendation should have had a condition including a time period for monitoring (i.e. over a year). It has however been agreed through the Liaison Committee that the time period is annually.

11. Regarding the frequency of blasting allowed at the site, the company blasting scheme failed to address the issue. In response to this Darren O’Hare wrote to the developer on the 10th May 2011, as follows:

‘Condition 14 - Environmental Services have advised that the information provided is generally acceptable. Whilst it is acknowledged that it is not possible to be precise as to when blasting will be carried out due to the time period of the development, this Condition does require details of the number of blasts per week to be submitted. I would therefore recommend that you provide an estimate (maximum number of blasts anticipated per week) in order that this condition can be fully discharged.’

Q12. What response was received from the company on this point?

Response: - From checking the electronic file, no written response from the Skene Group was provided however the Case Officer recalls discussing this issue with Keith Luke (Ironside Farrar) by telephone. KL indicated that Skene had advised him that there would be a maximum of 2 blasts per week on average over a 3 month period .This was verbally agreed as being acceptable. KL was asked to follow this up formally so that FC could discharge the condition in writing. See question 19 below.

Q13. Why was there no limit on the weekly number of blasts set until after the Independent Review began (email from Neil Skene to James Wright, 3rd April, 2013)?

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Response: The limit has previously been agreed and implemented as such. James Wright’s letter clearly formalises this limit and confirmed that the blasts which had taken place since May 2011 did not breach the 2 per week average figure.

14. Please provide all copies of any correspondence between planning and the company regarding best practice.

Response: There has been no correspondence regarding best practice between Planning and Skene as such. However Ironside Farrar and other consultants did submit information to discharge the conditions which could be deemed as best practice. These are available online (e.g. blast design).

15. Please provide all copies of any correspondence between planning and the company regarding questions on the EIA.

Response: Any correspondence during the processing of the application would have been with either EMAC- Emelda McLean (Planning Consultant and Agent) or Ironside Farrar who produced the ES. All correspondence will be provided to Committee members.

16. Provide details of all communications that indicate the cognisance of the much larger than normal number of residents likely to be affected by this application. Response: The Committee report fully considered amenity issues including proximity to the whole settlement of Leslie not just the notifiable neighbours. The letters of objection and support were from a wide area within Leslie and were all assessed by the case officer.

Section B- General Questions

Q1. What method going forward is going to be used to record the factors

considered in deciding on matters such as the buffer zone boundary? Response: This topic is covered in Recommendation 11 in the Independent Review. FC has agreed this as part of a wider review of the style of the Committee reports and processes, including improvements to the current report template. All relevant and material considerations should be included and referenced in the Committee report.

Q2. What method going forward is going to be used to record the factors considered in deciding on matters such as the rigour with which EHOs assess the technical chapters of Environmental Statements?

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Response: This topic is covered in Recommendation 13 in the Independent Review and the details will be brought forward to the Glenrothes Area Committee. Internal consultations may now be published on Fife Direct so that all customers are aware of the detailed responses. This is a double edged improvement as it is open and transparent but can lead to early and premature reactions /assessments before the final assessment by the case officer is made.

Q3. What method going forwards is going to be used to record the factors

considered in deciding on matters such as the recommendation to follow best practice?

Response: This topic is covered in Recommendation 12 in the Independent Review and details will be brought forward to the Glenrothes Area Committee. This is really a matter for pre application advice and promotion

4. Regarding acceptable noise levels, the relevant paragraphs of PAN 50 Annex A state:

“33. During the working week, except in the circumstances outlined below (paragraphs 36-41), the daytime nominal limit at noise-sensitive properties used as dwellings should normally be 55 dB LAeq,1h (free field) where 1 h means any of the one hour periods during the defined working day. This is roughly equivalent to the noise made by a person talking normally and is generally agreed to be a tolerable noise level; above this level, continuous noise could well cause annoyance. The night-time nominal limit should be 42 dB LAeq, 1h (free field) at noise-sensitive dwellings. “Free field” means at least 3.5m away from a facade.6, 7 34. In some local circumstances, it may be appropriate for an evening period, typically 1900-2200 hours, and/or a dawn period, typically 0600-0700 (or 0800) hours, to be defined. If evening and/or dawn periods are to be defined, depending on local circumstances, limits modified from those indicated at paragraph 33 should be set. 35. The limits specified at paragraph 33 for dwellings are considered to be generally appropriate as they are related to typical levels of tolerance to noise. However, there may be a need to modify the nominal limit in the light of local circumstances. 36. A lower nominal daytime limit might be appropriate in quieter rural areas if a limit set at 55 dB LAeq,1h for noise from the proposed development would exceed the existing background noise levels by more than 10 dB(A). In these circumstances, planning authorities and operators should have regard to how

19

the noise from the development would relate to existing background levels and to the likelihood of complaints arising from the proposed development; and there may then be a need to modify the nominal daytime limit to a lower level in the light of local circumstances. 37. In exceptionally quiet rural areas where the daytime background noise level is below 35 dB(A), a condition limiting mineral operators to a 10 decibel excess over the existing background noise level is likely to be both difficult to achieve and unduly restrictive. It would not normally be appropriate to require a daytime limit below 45 dB LAeq, 1h, as such a limit should prove tolerable to most people in rural areas. The exercise of care and some flexibility are important in addressing these issues.”

The Independent Review states:

“The review team has considered a number of sources in reaching their conclusion regarding the appropriate baseline level to use. This baseline level of 37 dB LA90, 1h has been found to be consistent in the EIA, the planning compliance reports and CSLs own data. Paragraph 37 does not apply. In this case the relevant paragraph is paragraph 36, which suggests that the limit should be set at 10 dB above the background level where the background level is above 35 dB LA90, 1h. It appears that at the planning stage the limit was set at 55 dB in accordance with paragraph 35.”

Q4. Given that the independent experts have explained the interpretation of PAN50 and noise, why is FC still arguing about PAN 50 and noise levels concerning this application? Response: FC officers stated at the draft Review stage that they had a different professional opinion, but officers have agreed to work within the recommendation and attempt to reduce/mitigate noise levels where possible.

Q5. What flexibility is allowed between what is presented to a planning committee and the final consent as issued to the developer? Response: There is a formal minuted decision from the Committee and also a related Action Note for officers’ specific actions. The consent should not deviate from the Committee decision unless any matters were delegated to the Chair or similar to agree with officers beyond the Committee. If the decision was linked to a legal agreement and specific Heads of Terms this can be adjusted in discussions with the applicant/other interested parties. If there are any substantive differences this should be reported back to the Committee for further considerations.

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Q6. As part of ensuring that members of the public are fully consulted and informed, rather than stick to the very letter of the law, why does FC not adopt a better than best practice of neighbour notification?

Response: FC can adopt better practice then the legislation requires and this has already been mentioned in discussions e.g. Neighbour Notification over a wider area The planning legislation has changed since the Lomond Quarry application and new processes are now mandatory for major planning applications e.g. a public meeting is required, Planning Application Notices (PANs) advising of intent to submit application.

Q7. Who monitors the responses from e.g. Environmental Health?

Response: This is covered by internal sign off processes but these are to be strengthened and improved as previously agreed.

Q8. What are the checks and balances, and oversight, applied to large-scale developments? Response: All reports are signed off by the Case Officer initially and then formally considered for approval by the Lead Officer/Service Manager /Senior managers. Then the reports are further scrutinised by legal officers and committee support officers prior to the submission at Agenda Planning with the Chair. The same process is repeated if any changes are discussed at the Agenda Planning Committee which is the rehearsal process for the Committee meeting. It is also at this stage that the possibility of the need for a site visit is considered. FC has produced separate guidelines for Committee site visits and these will be updated as necessary.

Q9. The report to the Glenrothes Area Committee 11th Sept 2013 mentions a committee report template review. What stage is this at? Who will have authority to sign it off for use? Please provide a copy of this for this scrutiny when it is finalised.

Response: This is at an early stage as part of the Review but has been discussed over the last year with some councillors and officers. Some expressed views on shorter/concise reports, others prefer full, comprehensive reports.

We have looked at practice elsewhere e.g. Dundee where reports are generally much shorter than the Fife equivalent reports.

Need to distinguish between reports on planning application e.g. Minor. Local and Major and front page reports. The template we use for all applications reflects what the decision maker requires to consider when

21

determining planning applications as set down in the Lord Clyde’s judgement in the case of Edinburgh City Council v Secretary of state for Scotland (1988 SLT 120).

Current thinking is to consider a recent Reporters decision letter with the equivalent FC report and see what improvements can be made. Could be an Executive Summary in the form of a front page report with the more detailed assessment report attached as an Appendix.

Q10. Where applications require an Environmental Statement, Environmental Impact Assessment or Transport Statement, for example, these are typically prepared by experts or consultants employed by the developer and then they are used to inform the planning officer’s report and hence the decision making process. To an objective observer it could be viewed that these reports are written to give a favourable impression of the proposed development. Is it possible for a system to be set up where Fife Council commission these reports and the developer then pays us for them so that they provide a demonstrably more impartial perspective?

Response: The technical studies are submitted in support of the development being proposed but require to be technically and professionally competent. FC can challenge any assumptions made or technical criteria if they are considered incorrect or flawed.

These documents are reviewed by our internal specialist staff and also the appropriate specialist consultees and Key Agencies who provide comments and challenges

FC used to use the services of an independent, specialist Environmental Assessment consultancy to independently scrutinise all EAs submitted. This was introduced to provide that very element of independence and quality check. It was discontinued due to costs and budget savings. This does not however preclude in appropriate situations external consultants being engaged to support the decision making process.

Q11. Given that Community Councils are recognised as being locally involved, is it

reasonable that they have to register a request within seven days to be consulted in the case of any planning application in their area? Would it not be more reasonable, especially with major developments, if they were automatically consulted with a chance to reply within a reasonable time period given their typical monthly meeting schedule?

Response: This process is set out in the planning legislation and FC do not withhold any requests for an extension of time unreasonably.

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2. How planning conditions are set – are they enforceable? Or is there another measure that needs to be included?

Section A- Lomond Quarry Planning Application

1. Referring to this application, PAN 50 states:

“20. To be effective, planning conditions must be enforceable. This means that they must be: - precise, - capable of being monitored, i.e. infringements must be detectable, - defined sufficiently for breaches to be provable. In addition to being valid, they must be necessary, relevant to planning and to the development, and reasonable. (See SDD Circular 18/1986 'The Use of Conditions in Planning Permissions) 21. 'Conditions' can set requirements in a variety of ways. The principal ones are: - performance requirements, - the use of specific amelioration measures, - the use of "good" practice, e.g. as set out in a code of practice.

Q1. How were the conditions established in this case? Response: - Review of the extant permission, similar quarry consents, the advice of consultees, SPP4 and the advice contained within PAN50 are all used to inform the use of specific conditions. Also additions made by senior staff, legal officers as appropriate.

Q2. Were they all fully and clearly enforceable?

Response: - Yes in the opinion of the Planning Service and also Legal Services, as they were “approved” through the appropriate preliminary and agenda planning discussions. For the Committee’s information, the Council did not submit evidence at the Enforcement Appeal contradicting the statement that the conditions were fully and clearly enforceable. The condition was fully and clearly enforceable but did not control ancillary operations at the quarry and the breach claimed by members all related ancillary operations at the Quarry. (The enforcement notice, reflecting the members’ discussion at Committee narrated instances of the alleged breach of condition’, principally lorry movements and the loading and unloading of lorries outwith the permitted hours of operation of the development. The Reporter correctly defined the development as the winning extraction of sand and gravel, and the breaches claimed did not relate to that. Enforcement action for the breach claimed by members was authorised by members contrary to officer recommendation.)

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Q3. If not – then why not?

Response: This query has formed part of wider discussions at different Committees on the specific wording of conditions and the actual intent of the wording

Q4. How many conditions are set in this application that are not enforceable in their own right but need another measure of, for example, harm to be enforced?

Response: - All conditions are enforceable but it is at the discretion of the Planning Authority as to what (if any) action should be taken in the case of any breach of conditions. As with all cases of enforcement, the level of harm must be established as well as the overall context and relevance.


Q1. What process is undertaken between planning officers and enforcement officers to ensure that conditions, on their own merit, can be enforced?

Response: - There is no formal process at present but this application was checked and signed off by senior officers as well as Legal Services. Case officers will consult enforcement officers where necessary when drafting planning conditions. FC uses a set of standardised planning conditions for many applications and the next review of these will include specific consultation with the Enforcement Team and Legal Services.

Q2. Under what delegated authority do officers set noise and vibration limits separately from the conditions attached to the report to the planning committee?

Response: - In addition to any conditions attached to the planning consent officers can enforce the statutory nuisance provisions under the Environmental Protection Act 1990.

Q3. What changes can be made going forwards to ensure that conditions are enforceable?

Response: - As above. We can also use the conditions imposed by DPEA Reporters on mineral decisions to establish/confirm best practice. Planning, legal and enforcement officers will input to the review of standard planning conditions.

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Q4. What changes can be made to ensure going forwards that conditions are proportionate as presented to the planning committee?

Response: - The revised list of updated planning conditions should assist in this. The draft conditions will be submitted to the Scrutiny Committee/Working Group for prior approval.

Q5. Is there an argument to put some conditions into the S75 agreement rather than in the planning consent so that they become legally binding on the developer rather than needing to meet non-specific measurements of ‘harm’

Response: - Planning conditions should not be replicated in legal agreements. Legal Agreements are used to cover off matters which cannot competently be covered by planning conditions. Enforcement action should always be proportionate to the issue being assessed not solely based on minor/technical discretions.

Q6. What policy changes can/will be made going forwards so that, if a council officer leaves the council to work for a developer that was previously enforced by that officer, then the council reputation is not harmed by any impression of impropriety?

Response: - Corporate HR and Legal Service colleagues were consulted and it appears there is little in a practical sense that can be done in such situations as this is a matter for employment law and would depend on the individual’s contract of employment and whether there is a restriction in that on what employment any individual can take up after leaving the Council’s employ. E.g. for Chartered planners there are restraints set out in the professional Code of Conduct which place limits on professional work in the same area, etc. Nevertheless the internal procedures should cover off matters such as unfinished/on-going work streams and subsequent relationships with former colleagues.

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3. How are Section 75 (Planning Agreements) drawn up – what are the delegated powers of the officers when compiling them compared with the information they give to elected members when we make a decision.

Section A - Lomond Quarry Planning Application Matters

1. This application report to the committee stated:

“It is accordingly recommended that the application be approved subject to: The conclusion of a legal agreement relating to all existing issues which were covered in previous agreements including, the revised haulage route, the continuation of a Liaison Committee, monitoring reports, lorry numbers, as well as phasing requirements and the need for a roads maintenance agreement. Members should note that this may be a variation of an existing agreement or new agreements as appropriate.”

This application decision notice to the developer stated:

“This application is subject of a legal agreement relating to all existing issues which were covered in previous agreements including, the revised haulage route, and the continuation of a Liaison Committee, monitoring reports, lorry numbers, as well as phasing requirements and the need for a roads maintenance agreement.”

Q1. In fact, the drawn up legal agreement contained no reference to the number of lorries or phasing requirements, why not?

Response:

- in relation to lorry numbers, the number of lorries going to and coming from the quarry is a consequence of the extraction rate which is controlled by condition on the planning permission (300,000 tonnes per annum per Condition 9)

- in relation to the phasing of the Development this is contained in detail in the method statement forming part of the Environmental Statement and in the phasing plans (the development requires to be implemented in accordance with the Environmental Statement and application drawings per Condition 2) It is unnecessary, and therefore inappropriate, to include in a Section 75 Agreement matters which are controlled by condition. The Circular 3/2012 on Planning Obligations and Good Neighbour Agreements and its predecessor Circular 1/2010 on Planning Agreements advocate that the planning authority should firstly consider whether the restriction or regulation can be achieved by the use of a planning condition and that

26

planning conditions are generally preferable to a planning or legal obligation. The phasing is, or should be, fully controlled by the method statement forming part of the Environmental Statement and the phasing plans submitted as application drawings. Planning should be able to confirm that the phasing issue was fully covered by the application papers and condition 2 requires the developer to implement the development in accordance with these.

When seeking detailed instructions from the planning team (case officer Darren O’Hare) to the terms of the Section 75 Agreement, it was agreed between the case officer and Legal Services that the phasing and lorry numbers aspects were addressed by planning condition and should not form part of the legal agreement.

For completeness Planning Circular 1/2010 (in force when the Section 75 Agreement was being negotiated) and Circular 3/2012 both set down the same 5 tests for a Section 75 Agreement/Planning Obligation, and all 5 tests must be met, as

Necessary to make the proposed development acceptable in planning terms

Serve a planning purpose Relate to the development either as a direct consequence of the

development or arising from the cumulative impact of the development in the area

Fairly and reasonably relate in scale and kind to the proposed development and,

Be reasonable in all other respects.

Q2. Why were these factors included in the advice to members and correspondence with the company if they were not material, enforceable and intended to be legally bound?

Response: - The conditions as recommended by Council officers were material and enforceable and were intended to be legally binding.

Q3. Exactly which paragraph of the previous Scheme of Delegation gave officers the power to vary the Section 75 agreement attached to this application from what was presented to the Committee?

Response: - Paragraph 9.4.7 of the Scheme of Delegation 2009 delegates to the Executive Director (Environment and Development Services) “in consultation with the Executive Director (Performance and Organisational Support) to enter into …such other agreements including

27

processing agreements and variation and discharge of other agreements as are non-material to the determination of the relevant application”.

4. For this application, please provide copies of all correspondence both within

Fife Council and with the developer regarding the appointment of the Compliance Assessor.

Response: - All correspondence will be made available to Committee members.


Q1. Section 75 agreements sometimes contain clauses relating to approved traffic

management plans, HGV routes, etc. The Section 75 Agreement for this specific application includes a designated Haul Route for quarry traffic with the wording in the S75 stating: “The Developer undertakes to use reasonable endeavour to ensure that any movements of Heavy Vehicles generated by the development (either proceeding toward or leaving the Land) shall use the Designated Haul Routes.” Given that a properly taxed, insured, etc. vehicle can use any public road, what powers does Fife Council have to enforce such a clause? How can we control lorries belonging to third parties, e.g. contractors or customers of the developer? Is there any way in which these powers can be made more robust?

Response: - This question itself identifies the difficulties of enforcing the use of designated Haul Routes. The terms of the Section 75 Agreement refer to the developer using reasonable endeavour which would indicate that the developer’s own lorries, as the drivers are in his employment, will use the designated haul route but other than expecting the developer to ask his regular customers to use the haul route, there is little else that the developer can reasonably be expected to do. Any action for specific implement would rest on fact and degree. The Section 75 Agreement provision would permit the Council to investigate any deviations from the haul route, the incidence of such and the persons (whether employees or third parties) doing so and to work with the developer to reduce such deviations but neither the Council nor the developer can control the use of public roads and the provision goes as far as it can without breaching the reasonable test.

Q2. What guidance or policy is there on the appointment of Compliance Assessors?

Response: - Legal Services/Procurement provides detailed advice on this matter. EPPS drafted up the tender documents which were processed through Legal services prior to the appointment being made. The value of the contract was sufficiently low to allow the Council to

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invite tenders from a short list of approved Compliance Assessors, which the Council have worked with in the past and whose credentials and experience levels met the requirements. Ironside Farrar submitted the successful tender, and they are a nationally recognised company.

Q3.What changes can be made going forwards to ensure that conditions are enforceable?

Response: - As stated previously the revised list of updated planning conditions should assist in this. The draft conditions will be submitted to the Scrutiny Committee/Working Group for prior approval following consultation with legal and enforcement staff.

Q4. Who determines/checks what is material and what is not (Para 8.6.8 of the current Scheme of Delegation)? Is there any oversight/accountability for these decisions?

Response: - The Case Officer will normally consult with relevant planning colleagues as appropriate. Legal colleagues would also be involved as necessary and also senior management if appropriate.

Q5. Should items be labelled as material/non-material in officers’ reports so that committee members know which items are not considered important and may not be enforced/included in S75 agreements?

Response: - Reports will address all material matters and where appropriate will highlight something which cannot be delivered through a planning condition, etc. (i.e. where a consultee is requesting something which does not meet the 6 tests). In addition, under the representations section, a summary is made of what material considerations have been covered in the report and lists concerns raised which are not planning matters. It is not possible to simply list the factors which are material and non material in the manner suggested. This matter can also be considered further in the wider review of Council Committee reports/formats.

Q6. Or is it fair for committee members to believe that everything is material and will therefore be included?

Response: - The Committee report will/should include all relevant and material matters set out for the consideration of the Committee. If there are doubts or issues raised on this at Committee planning and legal officers will advise accordingly.

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APPENDIX 4

INDEPENDENT REVIEW TEAM REPORT TO EAST AYRSHIRE COUNCIL RE OPENCAST COAL (The

Mackinnon Report) ‐ Fife Council summary comments on the recommendations.

Introduction

The MacKinnon Report sets out 14 recommendations for consideration by East Ayrshire Council.

Many of these recommendations do not directly apply to Fife Council but the 14 recommendations

are listed below with appropriate Fife Council comments in bold text where these either inter‐link

with recommendations already been considered by the EFCS Scrutiny Committee in relation to the

review of major planning applications within the Planning Service.

1. The East Ayrshire Opencast Coal Mineral Plan should be reviewed and an up to date

planning policy framework put in place. Fife Council has an updated Minerals Plan in place

but EPPS has agreed to look at any additional supplementary guidance which may be

required.

2. Greater effort should be made, for example through improved Environmental Statements,

to ensure that individuals and communities understand more clearly the implications of

planning applications for surface mining. All applicants require to provide a Non‐Technical

Summary, in Plain English. EPPS has agreed that this could be augmented where necessary

by an additional Executive Summary by Fife Council as the Planning Authority where this is

required.

3. (East Ayrshire Council) must consider the adequacy of staff resources – numbers and

knowledge – for dealing with opencast coal development, including monitoring compliance

with planning conditions and Section 75 agreements. Fife Council has experienced officers

in key positions, including senior management, legal, policy, and development

management with detailed knowledge and experience in minerals planning, both at policy

and decision making stages. The new Planning portfolio is assessing the need for any

additional resources/support which may be needed to lead on minerals and energy

developments e.g. coal, opencast, hard rock quarries, sand and gravel quarries, wind

farms, fracking etc.

4. Two knowledge sets need to be available to the Council, firstly to ensure authoritative

advice is provided on methods of working and restoration; and secondly to assess the

financial viability of proposals. This is AGREED but Fife Council considers that even wider

knowledge sets are required. The knowledge sets used in Fife last year were extensive,

cross service and corporate.‐procurement, tendering, financial, procedural, external

specialist advice, partnerships with other key agencies, merged with innovations and

creativity to reach sustainable solutions.

5. Senior Managers must engage more actively on more opencast coal matters and provide

clear direction and supervision. In Fife all major applications, including opencast coal, are

dealt with by a specialist team of experienced planners. This includes regular involvement

of the Senior Manager, briefings, joint meetings, reports to Committee etc. All reports

/processes are signed off by the Senior Manager.

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6. Personal permissions to operators should be discontinued and attached to permissions

should be rigorously monitored. Fife Council has never understood this specific approach to

personal permissions and did not/would not have granted personal planning permissions

to coal companies.

7. The drawing up of restoration guarantee bonds should not be led by the Planning Service,

instead it should be a wider corporate task drawing on independent financial advice and led

by the Executive Director of Neighbourhood Services in her capacity as Depute Chief

Executive. Fife Council has a well established corporate approach to restoration bonds

primarily involving finance, legal and planning officers.

8. Measures should be taken to counter the perception that the conduct of the Planning

Committee is not sufficiently impartial. Not considered directly relevant to Fife Council.

9. A more rigorous approach to filing must be introduced and the new e‐planning system

provides opportunities to alert planning staff on, for example, dates by when conditions

should be discharged on Mining Progress Plans submitted. Not considered directly relevant

to Fife Council.

10. The Enforcement Charter should be revised with a specific section devoted to the regulation

of the opencast mining industry. AGREED and being assessed by Fife Council as part of the

Scrutiny Committee Improvement Plan.

11. Mining Progress Plans and Environmental Audits should be seen as a single document and

should always be the subject of consultation with key stakeholders with feedback/action

points to the operators. Not considered directly relevant to Fife Council position.

12. Technical Working and Community Liaison Groups should be combined and should be led by

a Senior AV official, not the operators. Fife Council use Local Community Liaison

Committees set up by legal agreement under Section 75 of the Planning Acts as an agreed

procedure.

13. Complaint handling should be improved with officials and Elected Members more persistent

in following up issues and concerns. AGREED, where relevant/necessary.

14. Quarterly reports should be submitted to Councillors recording progress on sites/complexes

and highlighting outstanding issues. Regular reporting should be introduced in Fife but

suggest an annual monitor unless a specific site/sites requires more regular reporting.

Jim Birrell

Senior Manager, Planning

April, 2014

33

‐Major Planning Applications

‐Coal/Q

uarrying

‐Lomond Quarry as a Case

Study

Environmen

t, Finance and

Corporate Services Scrutiny

Committee/Working Group

Scottish Governmen

t Consultation Paper

‐Opencast Coal Restoration

Coal M

ine Restoration ‐

Investigation

Report ‐Audit Services

Indep

eden

t Review of

Opencast operations in east

Ayrshire ‐"M

ackinnon

Report"

Indep

endant Review and

Recommen

dations ‐

Lomond Quarry

(Capita Symonds)

April 2014

Issued

December 2013

Fife Councilresponse,

March 2014

Issued

January 2014

Issued

January 2014

July 2013

Diagram

of relevantstudies/audits with common/related actions,

improvemen

ts and recommen

dations

March 2014

Appendix5

Appendix3

Appendix 5

ScrutinyIssue

Recommen

dations in

agreed

ActionPlan

34

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