Hansard

I apologise in advance, as this will probably be the lengthiest contribution that I will make in the debate. The amendments in the group that are in my name are intended to meet the recommendation that the committee made in paragraph 136 of its report that, in respect of heat network consents, the bill should provide “for the balance of powers between Ministers and local government to be modified over time”. I have been happy to meet that recommendation. Members might be aware that, when the idea of heat network consents was initially proposed, we suggested that local authorities would be well placed to take on that function, given their existing role as planning authorities and given that heat networks are local assets by their nature. We moved away from that view following the findings of the independent analysis of the consultation, which found that some local authorities do not have the necessary resources to manage the consents process and noted that there were suggestions for a central body to issue and manage consents. In its recommendations report of December 2019, the heat networks regulation working group, which supported the drafting of the bill, said that it “felt that the consenting proposal should be reconsidered in order to reduce burden on ... local authorities … and to reduce the risk of Local Authorities effectively self-regulating.” I also note that, in my officials’ engagement with Convention of Scottish Local Authorities counterparts prior to the introduction of the bill, no objections were raised to the balance of responsibilities in part 2 of the bill relating to heat network consent. However, the committee’s recommendation and the amendments that I have lodged and will speak to represent a sensible position for us to reach. They would enable local authorities that wish to be empowered with that responsibility to become so while ensuring that the Scottish Government can carry out that function elsewhere in Scotland, where that is the will of the relevant local authority. I must apologise, as I have quite a few amendments to speak to. Amendments 10 and 11 would primarily give effect to the committee’s recommendation by introducing the concept of a consent authority that is responsible for the award of heat network consents in its area and would replace the Scottish ministers’ responsibility for that area. Amendment 10 would create a power for the Scottish ministers to designate a local authority as the consent authority for its area. Subsection (3) specifies that, before doing so, the Scottish ministers must have consulted that local authority as well as any other persons “as they consider appropriate”. We think that that is important. Amendment 11 sets out the default position that the Scottish ministers will act as the consent authority in those areas where the local authority in question has not been designated as the consent authority for its area. With those new powers available to local authorities that wish to have them, it is important that they are able to recover the costs that they incur in exercising those new functions. Accordingly, amendments 124 and 125 would amend section 77 of the bill so that the Scottish ministers may make regulations about the payment of fees to local authorities for carrying out their functions under part 2. Amendment 126 is a consequential amendment to section 81 that provides that the new power to designate a local authority as a consent authority is subject to the affirmative procedure. Amendment 130 is a consequential amendment that will add “appropriate consent authority” to the list of definitions in section 83. Amendments 12 to 31, 33 and 41 are consequential amendments as a result of the power to designate a local authority as the consent authority for its area. They will replace references to “Scottish Ministers” with “appropriate consent authority” and make some grammatical changes as a result of that. Although they are consequential amendments, they are important, as they ensure that all the necessary powers under part 2 in relation to consent are exercisable by the appropriate consent authority rather than the Scottish ministers. The powers combine to enable local authorities to perform the function of a consenting authority competently. Amendment 51 deals with the possibility of joint working between local authorities. It is a broad power for the Scottish ministers, by regulations, to determine how applications for heat network consent are to be made and determined, in the event that the proposed development crosses local authority boundaries or might expand to cross them. The power is necessarily broad, as engagement with local authorities will inform agreements on how such applications might be handled, and as the likely frequency of such applications will not be known until the designation of heat network zones under part 3 of the bill is undertaken. Nevertheless, it is prudent to make such provision to future proof the bill in anticipation of large-scale heat network developments, which have the potential to span a number of areas. Without prejudgement of the outcome of the analysis and of public engagement, which will inform the designation of heat network zones, we might, for example, see a development that spans Rutherglen in South Lanarkshire and adjacent areas in Glasgow. Provision is already made for local authorities to work jointly on the designation of heat network zones under section 43. 09:45 A number of consequences will result from the enablement of local authorities to act as consenting authorities, which amendments 9, 36, 37, 38, 61, 62 and 133 deal with. Amendment 36 will provide the Scottish ministers with the power to call in applications for heat network consent. That is similar to section 46 of the Town and Country Planning (Scotland) Act 1997, which allows the Scottish ministers to direct that a particular application, or class thereof, be referred to them for decision. That power is thought to be necessary to cover the potential that such a decision might affect matters of national importance. So that the Scottish ministers can make effective use of that power, amendment 37 will provide them with powers to, for example, restrict local authorities from determining those applications for a period of time; direct local authorities to provide information on applications and include specified conditions when granting such applications. The intention of those powers is to provide the Scottish ministers with the necessary time and information to determine whether to call in an application under the power that will be introduced by amendment 36. A further consequence of the designation of local authorities as consenting authorities is that it will allow the Scottish ministers to hear appeals against any decision by a local authority to decline an application for consent. Amendment 38 will create powers for the Scottish ministers, by regulations, to establish an appeals process in respect of decisions that a local authority has made on heat network consent applications or modifications. The amendment is proposed in line with the evidence that was heard at stage 1 and noted in the committee’s stage 1 report, that the Scottish Government should reflect on the appeals processes in the bill. Those recommendations were primarily in respect of the revocation of heat networks licences and consents, but I trust that the committee agrees that an opportunity should be provided to appeal regarding the initial decision to award a heat network consent when possible. Amendments 61 and 62 are needed consequential changes, so that deemed planning permission under section 35 might be provided or amended if ministers award or modify heat network consent following a successful appeal. Amendments 9 and 133 are also consequential to amendment 38 and will adjust references to heat network consent through a recognition that it might be granted on appeal. Amendment 63 will create a new power for the Scottish ministers to streamline the process for applications to a local authority when applications for both a heat network consent and planning permission would require to be made to the local authority. The purpose of that power is to simplify the administrative burden on local authorities and heat network operators and developers so that we can move new schemes to construction as quickly as possible—subject to appropriate scrutiny—in response to the global climate emergency. I believe that those amendments combine to provide a pragmatic solution to the question of the role of local authorities, which has rightly been raised in the scrutiny of the bill. I turn to Andy Wightman’s alternative amendments 135, 136, 137, 150, 144 and 157, which, in summary, dictate that local authorities would become responsible for heat network consents in perpetuity within five years. I have sympathy with the principle of Andy Wightman’s amendments. I agree that, as far as possible, local authorities should be empowered as the decision makers on local matters. However, in this specific case, I believe that the amendments that I have lodged and to which the committee’s report led us are the most suitable approach. There are several reasons for that, not least a lack of clear indication from local authorities that they want the functions to be imposed on them. First, at this point in time we simply do not know where, or the extent to which, heat network developments will take place across Scotland. Our view is that they will not take place uniformly. The viability of a heat network is dependent on having sufficient heat density and interested customers, and the designation of heat network zones will clarify where heat network developments are most likely to take place. That, in turn, is likely to weigh heavily in a local authority’s view on whether it would wish to become a consent authority. We are making progress in developing a method for designating heat network zones and, in our heat in buildings strategy, we will commit to producing a heat networks investment prospectus during 2021. That will include a first pass of heat network opportunities across Scotland that we and local authorities can subsequently build on. Ahead of that, I am reluctant to require local authorities to invest in developing a consenting function when there is the very real chance that evidence will show that, for some, that investment will be underutilised, as there will be few, if any, networks to consider. Secondly, while we have worked to estimate the costs of heat network consent functions as part of the financial memorandum that accompanies the bill, I am aware that those costs will necessarily increase with the creation of up to 32 consent authorities. I am sure that members will agree that it will be important that we work with local authorities and the Convention of Scottish Local Authorities to come to a definitive view on the estimated costs, and to agree the resources that need to be put in place to enable local authorities to take on that important function. The amendments that I have lodged would allow a period for those discussions to take place before any regulations are laid. I am concerned that amendments that would specify local authorities as consent authorities by default would put local authorities at risk of being made to fulfil that function without assurances about adequate support being in place. Thirdly, I note that a 2020 Energy Saving Trust report found that, because heat networks are not a common technology in Scotland, there are gaps in skills in local authorities when it comes to district and communal heating. I would be keen to work with local authorities to build capacity in the lead-up to laying regulations that would make them consent authorities, so that those who wish to do so are well placed and the need for procured consultants, with associated costs, is minimised. If we do not do that, and we make local authorities the consent authorities by default, with skills in that area currently being scarce, costs may be further increased by local authorities competing to source appropriate staff. Fourthly, I am aware that some local authorities are likely to be undecided about or unaware of the potential for them to become consent authorities, as there has not been consultation on that at present. It may be that those local authorities would wish for time in which to consider the possibility. If the function were to be undertaken by the Scottish Government’s existing energy consents unit on behalf of those local authorities in the meantime, in a similar way to Norway’s initial national approach, local authorities would have the opportunity to witness the function in action before coming to a more informed decision as to whether they wish to act as the consent authority for their area. Finally, there are several technical and drafting issues with Mr Wightman’s amendments in their current form. For example, there is no provision for the role of a consent authority to automatically transfer back to the Scottish ministers in future should a local authority want to do that. What about heat networks that cross local authority boundaries? There appears to be no provision for local authorities to work together. The amendments also make no provision for how part 7 is to operate in relation to the very important provision of transfer schemes if consent functions were to transfer to local authorities by default. I would also be very concerned about sections 19 to 24 and section 35 of the bill being commenced immediately upon royal assent, given that we and networks that are under development are not prepared for sudden implementation and that part 2 would not be commenced coherently. The five-year period to which Mr Wightman’s amendments refer could, however, help to overcome some of the issues that I have raised and would provide the opportunity for us, collectively, to anticipate and adequately plan for and resource the deployment of heat networks that we can expect. In light of that, I invite him not to move amendments 135 to 137, 144, 150 and 157 but to work with me, together with COSLA, to build on his amendments and mine by inserting a clear trigger point or opt-in provision at stage 3 so that local authorities are empowered to take on the function, should they wish to. I am happy to offer my support to Mr Wightman’s amendments 138 and 139, although I ask him not to move amendment 140, which duplicates the effect of part of amendment 50, which has already been agreed to. Amendment 50 requires the Scottish ministers to consult local authorities and the Scottish fuel poverty advisory panel, alongside other appropriate persons, in developing regulations under section 27. If pressed, I urge members not to support amendments 135 to 137, 140, 144, 150 and 157 on the understanding that I have agreed that my officials and I will work with Mr Wightman to bring back an alternative amendment at stage 3. Instead, I urge members to support amendments 9 to 31, 33, 36 to 38, 41, 51, 61 to 63, 124 to 126, 130 and 133, as well as supporting amendments 138 and 139. I move amendment 9.