Ministerial Proposal

The National Park Proposal by the Scottish Executive - Cairngorms National Park

Introduction

1. Under The National Parks (Scotland) Act, an individual National Park (and its associated National Park authority) may be established by means of a designation order approved by the Scottish Parliament. The Act sets out powers, functions and duties for all National Park authorities, but leaves a number of issues – notably Park boundaries, details of composition of the authority, and functions including those in respect of Town and Country Planning – to be specified in the designation order.
2. The Act also sets out the process of consultation which must precede the making of such a designation order. That starts with the publication of, and consultation on, a proposal for a National Park, covering the matters to be included in the eventual designation order setting up that Park.
3. This document is the National Park proposal for a National Park for the Cairngorms.

Legislative Background

4. This proposal is issued under section 2(1) of the National Parks (Scotland) Act 2000.
5. If Ministers are satisfied that the conditions in section 2(2) of that Act are, or may be, satisfied, they may under section 2(1) issue a National Park proposal. The conditions are:

(a) that the area is of outstanding national importance because of its natural heritage or the combination of its natural and cultural heritage;
(b) that the area has a distinctive character and a coherent identity; and
(c) that designating the area as a National Park would meet the special needs of the area, and would be the best means of ensuring that the National Park aims set out at section 1 of the Act are collectively achieved in relation to the area in a co-ordinated way.

6. The proposal under section 2(1) must propose the designation of an area as a National Park, and the establishment of a National Park authority to exercise in relation to that Park, the functions conferred on it by the Act. The proposal must be in writing and must set out (in general terms):

(a) the area which it is proposed should be designated as a National Park;
(b) the functions which it is proposed the National Park authority should exercise.

Meeting the Conditions

7. Advice was given to the Government by Scottish Natural Heritage (SNH) in February 1999 in relation to the appropriateness and suitability of the establishment of a National Park for general area of the Cairngorms. Having regard to that advice, the Scottish Ministers are satisfied that the conditions in section 2(2) of the Act are, or will be, met in relation to the general area of the Cairngorms.

Proposal

8. Area: The general area proposed in this proposal for consideration under section 2 of the Act is the larger of the two indicative areas set out in the SNH advice to Government of 1999, which co-incides with the current Cairngorm Partnership boundary. However, the consideration of the optimal area for the National Park will need to take account, as required by the Act, of the conditions in section 2(2), which include distinctive character and coherent identity, as well as meeting the special needs of the area. The Scottish Ministers will wish to ensure that the overall size of the designated area, as well as its precise location, is commensurate with effective and efficient administration by the Park authority of its functions and delivery of its purpose.
9. Planning Functions : The National Parks (Scotland) Act 2000 sets out certain functions (namely duties and powers) which all National Parks will exercise. However, section 10 provides for the exercise of powers under the Town and Country Planning (Scotland) Act 1997 to be decided for each Park individually, and specified in the relevant designation order. Paragraph 10 of this proposal therefore addresses the question of the planning functions within the proposed National Park.
10. On the basis of SNH’s advice to Government published in 1999, the proposed planning arrangements are as follows;

- the local authorities should remain the planning authorities under the terms of the Town & Country Planning (Scotland) Act 1997. However, the NPA should be a statutory consultee in the preparation of the relevant local plans and structure plans (as they affect the National Park);

- the NPA should also be a statutory consultee on development control decisions;

- the NPA should similarly be a statutory consultee on other functions exercised by the planning authorities: TPOs, conservation area and listed building consent, advertisement consent, minerals consent, and application of controls relating to hazardous substances.

As a statutory consultee, the NPA will be able to influence the outcome of planning decisions. In respect of local plans, if they maintain an objection this will trigger a local plan inquiry and subsequently submission of the plan to the Scottish Ministers for determination as to whether the planning authority can adopt it; on structure plans, they will be able to make representations direct to the Scottish Ministers following submission of the draft plan to the Scottish Ministers by the planning authority for their approval. On development control, they will not only be able to object to any planning applications but in specified cases the planning authority will be obliged to notify the Scottish Ministers if they were minded to give planning permission despite the objections of the NPA, or without any conditions sought by the NPA, so that they can decide whether or not to call-in the application for their determination.

Within these arrangements, there is the possibility of the local authorities preparing a joint local plan for the area of the National Park – while local authorities would remain the planning authorities, this arrangement would ensure a single coherent plan for the area covered by the National Park.

Views are sought on this proposed option, the types of cases that should be notified to Scottish Ministers by the planning authority, and the possibility of establishing a single local plan for the area.

However, while this must be an option for consultation, the possibility of alternative planning arrangements is not ruled out, and in the interests of ensuring that options are not closed off too early in the process of consultation, views are sought on the option of the NPA becoming the planning authority (with the local authorities given reciprocal rights as statutory consultees).

11. Authority membership: There has been a general understanding that authorities will have the maximum permitted number of members (25), with the minimum permitted number of directly elected members (5). These figures would allow maximum flexibility for appointments to cover the need to identify both local members and representatives of particular interest groups. However, although this is the Executive’s proposal, and must be consulted upon, the Executive would be interested to know whether the proposed ratio of elected to appointed members is appropriate to the specific circumstances of the Cairngorms.
12. Other Functions: As mentioned above, the functions which all National Park authorities will exercise are set out in the National Parks (Scotland) Act 2000, and are not the subject of this proposal.
13. However, one additional function which it is proposed should be specified in the designation order, is that the National Park authority should have powers to appoint Park rangers.
14. There are no other proposals for powers or functions, specific to the Cairngorms National park, which should be included in the designation order; however, suggestions made during the consultation on this proposal for such functions will be considered.

THE SCOTTISH EXECUTIVE
SEPTEMBER 2000

REQUIREMENT UNDER SECTION 3(1) OF THE NATIONAL PARKS (SCOTLAND) ACT 2000

PROPOSED NATIONAL PARK FOR THE CAIRNGORMS

Introduction

1. As part of the process preliminary to the establishment of a National Park under the National Parks (Scotland) Act 2000, the Scottish Ministers must publish a National Park proposal. Such a proposal in relation to the area of the Cairngorms was published on 19 September 2000,a copy of which is annexed to this document. Following this publication, the Scottish Ministers may undertake a process of consultation themselves (under section 4 of that Act), in which case they must publish a statement at the conclusion of the consultation, or they may require an appropriate public body to undertake a process of consideration of or consultation on, the proposal (under section 3 of that Act), and report to them thereon. The report required under section 3 is to be published and laid before Parliament.
2. The Scottish Ministers have decided, in relation to the National Park proposal for the Cairngorms to proceed under section 3 of that Act and that the appropriate body to act as a reporter for this purpose is Scottish Natural Heritage. This document therefore constitutes a requirement on Scottish Natural Heritage to undertake the obligations set out in section 3(1) of that Act.

Legislative Background

3. Section 3(1) empowers Scottish Ministers to require the person on whom the requirement is imposed to consider and report to them on a National Park proposal, by a date as may be specified, on the following matters:

1. The area which it is proposed should be designated as a National Park;
2. The desirability of designating the area in question (with or without modifications) as a National Park;
3. The functions which it is proposed the National Park authority for the Park should exercise;
4. The likely annual costs and capital expenses of the authority in exercising its functions;
5. Such other matters relating to the proposal as the requirement may specify.

1. The Scottish Ministers are required to send a copy of the proposal and requirement to the reporter, who must then comply with the process set out in section 3(5), 3(8) and 3(9). Under section 3(6), the Scottish Ministers may give the reporter directions as to how the consultation under 3(5)(d) is to be carried out (these provisions were added during the Bill, specifically in response to concerns that the consultation should be fully participatory, and that copies of the consultation document should be sent to all community councils).

Requirement

2. In terms of section 3 of the Act, SNH are by virtue of this requirement required to report on all of the matters set out at section 3(2)(a) to (e) of the Act. In supplement to the matter at section 3(2)(d), SNH are required to reconsider the figures on costs included in their published advice to the Government of 1999, in light of the provisions of the Act, and the proposed boundaries and functions.

A) In relation to section 3(2)(e), SNH are required to consider the following matters:

• The name of the National Park.
• An analysis of the balance of opinion on the matters considered, including specific reference to the views expressed by bodies and agencies representative of interests which fall outside SNH’s main remit.
• Who the major stakeholders and interest groups are (a point that was raised during the passage of the Bill).

• Appointments and Elections to Park Authorities:

1. Size of National Park authority;
2. Number of elected members;
3. Date of election: it is difficult to be precise at this stage, but the date must give sufficient time after the approval of the designation order to allow prospective elected members to decide whether to stand for election and also ensure that elected members will be identified no later than appointed members. A decision will be taken when the designation order is drafted, and other timings are clearer. However, any views of consultees on when the election should be held relative to other events – namely the approval of the designation order, and the establishment of the Park authority – will be helpful to this decision, and should be recorded.
4. Number of appointed members (the difference between (a) and (b));
5. Number of members to be appointed on the nomination of each relevant local authority: this will depend upon the boundaries of the Park, and the basis on which each local authority "share" is determined.
6. Number of "local" members: The numbers to be included in the members nominated by each relevant local authority will depend upon the conclusions to (e). (Note: "local member" is defined in the Act as someone whose sole or main residence is within the National Park, or who is a councillor for an electoral ward or a member of a community council, any part of whose area is within the National Park.)
7. Particular expertise/experience/interests represented of directly appointed members (as set out in schedule 1, paragraph 6(2)).

The context of these electoral/appointment matters is provided by the Act which sets out the constitution of National Park authorities as follows:

- authority to be maximum of 25 members (actual number to be specified in the designation order);

- a minimum of one fifth of members (number to be specified in designation order) to be elected in special elections for the National Park authority. (Election arrangements will be determined by an Election Order);

- the remainder to be appointed by Scottish Ministers, but half will be on the appointment of local authorities. Of these appointed members, a number equal to no less than one fifth of the total membership, must be "local" members as defined in the Act. The designation order must specify how many members are to be nominated by each relevant local authority, and how many of these are to be "local". (The remaining members will be subject to direct appointment by Scottish Ministers.)

- All appointees must have knowledge or experience relevant to the functions of the National Park authority or National Park. However, in respect of members directly appointed by Scottish Ministers, the designation order can specify particular knowledge or experience, or particular interests, which appointees (or some appointees) must have or represent.

The processes governing the election of members or appointment of members are not (with the exceptions set out above) the subject of consultation. The election process will be the subject of an election Order, which will be drawn up and consulted on separately, before consideration by the Scottish Parliament in summer 2001. Appointments will be subject to the usual requirements of openness and transparency, and as required by the Act, Scottish Ministers will consult (i.e. advertise the posts, and seek expressions of interest) before making any direct appointments.

The proposed elements of those appointment/election matters which are to be specified in the designation order, and on which the Reporter should consult, are as set out above in (a) to (g).

B) In terms of section 3(1) of the Act, the report is required to be submitted to the Scottish Ministers in writing by 9 July 2001.

1. SNH are reminded of the duties imposed upon them, as reporter, by the relevant sections of the Act. Section 3(5) requires SNH, upon receipt of the attached proposal, to send a copy of it, together with a copy of this requirement, to every local authority any part of whose area is within the area to which the proposal relates. Those local authorities are then required to make copies of both documents available for public inspection for the duration of the consultation. The dates are to be specified by SNH, but the period for consultation must be a minimum of 12 weeks.
2. SNH must also publicise the proposal in such a manner as they think fit. In the context of the other provisions of the Act, SNH must take all reasonable steps to ensure that those likely to have a legitimate interest in the proposal, and especially those living, working, or carrying on business within the proposed area are aware that the consultation is taking place. The use of local newspapers, Community Councils and other community groups and local meetings are obvious means of raising local awareness.
3. SNH are also reminded that under section 3(5) they are required to consult (on the proposal) every local authority and every community council to which the proposal relates, those people who appear to be representative of the interests of those who live, work or carry on business in the area to which the proposal relates, as well as any other people SNH consider appropriate. Following up the concerns expressed during the passage of the Bill, and under the powers conferred on the Scottish Ministers under section 3(6) to issue directions to a reporter, SNH shall:

• Ensure that those who are statutory consultees (as described above) are sent a copy of the consultation documents. Every relevant local authority and community council must be sent copies, and it is considered desirable to send copies to local authorities and community councils with borders adjacent to the proposed area.
• Ensure that the consultation is participatory, and that steps are taken to ensure that people have an opportunity to discuss issues, and suggest and consider alternatives. Meetings with interested groups should be part of the process.
• Ensure that agencies and public bodies representative of relevant interests are consulted, and their views reported. In particular, these should include those representative of social and economic interests of the proposed Park.
• Build on the preparatory work by SNH during 2000, at the request of the Scottish Ministers, and done in conjunction with other relevant bodies in the area, paving the way for a formal consultation. This work should be described in the consultation papers which SNH produce as part of the consultation on the proposal, so that consultees can see how this work has informed the conduct of the consultation. This work should also be covered in the report to the Scottish Ministers.
• Develop and report on objective criteria (based on the conditions in section 2(1)) and an associated methodology against which SNH make their assessments of the proposal and any comments and suggestions for modification.
• In carrying out its role as reporter, SNH shall seek to record and report on the views expressed by consultees, and shall make quite clear and distinct any views which are those of SNH as statutory adviser on natural heritage matters.

THE SCOTTISH EXECUTIVE
SEPTEMBER 2000