Rизw ddodolol. Roedd y dyfodol i'r 15 eich gweithloi eu CHQ i 2017, ac mae'r ydych chi'n iawn yn sefydlu i fynd i'r ddyrgriwodau cy originally iswod flydd yma i gafodol, dy wneud i gofio i ni'n cyflod y dyfodol. Rydyn ni'n cael eu thyf i roedd y gallwn ei gyflodau, ac rydyn ni'n ddych i'r cyfleolau Cymrith Yng nghylcheth i Gwliadol i ysgriladau Ard y Gwliadol. The committee will take evidence from Mark McDonald on its post-legislative scrutiny of the act. Mark McDonald was the member in charge of the High Hedges Scotland Bill and I welcome Mark McDonald to the committee this morning. Thanks for coming along, Mark. I think it will only be appropriate to give you the opportunity to make some opening remarks before we move to questioning. No, I think it's best just to go straight to questioning, convener. Okay, well my first question would have been do you think that the act has delivered what you thought it would deliver? Has the intent been realised, Mr McDonald? Well, I think that if we track back to what the intention behind the legislation was, there was clearly an issue within Scotland where neighbour disputes, which centred around high hedges, didn't have any means of resolution available for residents who were affected, and so the legislation sought to create a way that those could be remedied. It built on some of the examples that had been seen south of the border, and I'd go down to visit a couple of local authorities in the north-east of England to discuss how it worked in their area. I think that what has broadly happened in Scotland mirrors to an extent the situation there, in that there were a number of cases that essentially resolved themselves as a consequence of the legislation coming into effect because it meant that people essentially changed their behaviour because they recognised that there was a means by which their neighbour could pursue a high hedge complaint. In those cases where there has not been that behavioural change and people have made applications, where the authority has found in favour of the person making the application, I think that it was borne out by the evidence that you took last week from local authority officers. There hasn't been a requirement for local authorities to go in and take action. It has tended to be that the notices have been complied with now. Obviously, there's been a question around how timely some of that has been done, and I think that that's something that may come out in further questioning. There are, of course, going to be people who will say that they don't feel that they've achieved resolution as a result of that. I think that they would fall broadly into two camps. The first are probably those who feel that the local authority's approach to how they have interpreted the legislation has not been in terms of the spirit of the legislation. There are also those who, with the best will in the world, this bill was never going to be about having every single case being determined on behalf of the person making an appeal for a high-hedge notice. It was about ensuring that there was a means by which the dispute could be resolved. That didn't mean that it would always be resolved in the one direction, so there will undoubtedly be some people who feel that the legislation has not worked effectively for them because it didn't give them the result that they wanted. That doesn't always mean that the legislation has not been effective. Have you had time yourself as the member who was initially in charge of the bill before it became law as to whether or not all the cases that have been referred to the local authority by constituents across the country, whether or not, to what extent—we know last week that King's was asserted that it had been successful where they applied the legislation—is that you are feeling that constituents have got that? Local authorities, obviously, are good at saying that they do things well, but that is not necessarily the reality of the situation. Is there any data that you can direct us towards how that is quantified? I would freely admit, convener, that at the point at which the legislation was passed, it then became the responsibility of government to introduce the relevant guidance and then to monitor how the act was implemented. I have not been in a position to keep that level of scrutiny of the way that the legislation has been implemented. Certainly, in terms of my own constituency caseload as a constituency member, I have not seen individuals coming to me who have found it difficult to gain any resolution to their problems. Now that may be that there are just not people in my constituency who have those particular issues. I have had one or two emails from individuals in other parts of Scotland, as you might expect, as the member who took the legislation forward, and where possible, I have directed them on to either their local member or to their local authority, where they would be best to pursue their issues. However, I have not got that kind of data to hand, but that might be something that you might want to pick up next week when you have the minister in front of you. Absolutely, I think that we were in tension. Thank you very much. We will move on to some further questioning now, Andy Wightman. Reading some of the debate around the time that we introduced the bill, there was quite a bit of discussion about what kinds of vegetation that bill was intended to cover. Can you confirm the intention of the bill was to deal with the problem of high hedges? Yes, that is the point, but the act itself, and I am sure that Mr Wightman will have read the act, sets out what it means by a high hedge as well. It was not intended to cover trees and forests and shelter belts? No, it was designed to deal with, and I will read section 1 of the act. The act applies in relation to a hedge referred to in the act as a high hedge, which A is formed wholly or mainly by a row of two or more trees or shrubs, B rises to a height of more than two metres above ground level, and C forms a barrier to light. If it meets those three definitions, then it would be falling within the realms of the act. That brings me to one of the central problems that has come up in terms of people trying to use the act, because section 1 defines a high hedge, but for a hedge to be high, it needs to be a hedge in the first place. There seems to be some confusion as to whether section 1, A, B and C are defining a high hedge, i.e. a subset of hedges, or whether it is also defining a hedge. Do you accept that for it to be a high hedge, it needs to be a hedge in the first place? I think that what the legislation was designed to do was to recognise that the effect of certain vegetation beyond a certain height, i.e. two metres, was the height that was specified in the legislation, could give effect to essentially the same effect as what you might define in the dictionary definition of a hedge. We deliberately stepped back from applying a dictionary definition of a hedge, because that could have potentially excluded some of the cases that we had seen, which were entirely appropriate to fall within the legislation as we were defining it. In excluding those, you were presumably excluding the vegetation that wasn't a hedge. You said that you didn't want to define a hedge. We have looked at the cases that existed across Scotland, and we came to a decision as to what would be the most effective way to create legislation that would give the best possibility of resolution to those disputes. The definition that was contained within the legislation was what I felt at the time, which was the most appropriate means of enabling that. You may have seen evidence from Aberdeen City Council, which makes us very point, that they have denied applications that have come in for a high hedge notice on the basis that it wasn't in the first instance a hedge. Well, that is a question around intention versus effect, I think. The legislation is about looking at the effect rather than the intention. It may be that the intention when an individual plants, for example, landeye in their back garden, is not for them to give effect to a hedge or a barrier to light for their neighbour, but the effect of that landeye being allowed to grow to a certain height and therefore a certain density gives that effect. It is about the effect rather than the intention at the point at which planting takes place. That is why it makes clear around, for example, formed wholly or mainly by a row of two or more trees or shrubs. An individual tree could potentially cause difficulty for an individual, but we recognised that that would not fall within the realms of a high hedge. Are you suggesting that when Aberdeen City Council reject applications that meet those criteria but that are not hedges in their view, they are wrong to do that? I think that councils should have due regard to what is defined in the legislation in terms of what constitutes a high hedge. That would have been my expectation when the legislation was passed. But the problem seems to be that what is contained in the legislation is merely solely a definition of a high hedge. It is not a definition of a hedge. That matter is because, speaking to our boroculturists and people, they will say that there is a distinct difference between a hedge and a shelter belt or a row of trees. Do you recognise that there might be some merit in defining a hedge before we then get on to defining what is a high hedge? I am trying to work out, convener, if I am disappointed or pleased that Mr Wightman was not here when we were discussing this bill in its initial stages. However, I take on board the point that you make. It would certainly be something to have consideration to. Attempting to do what Mr Wightman suggests may very well kick open a rather large can of worms in terms of the cases that may or may not then be included or excluded as a consequence of doing what you suggest. It may be something that the Government would want to consider and I am sure that the minister would be interested to discuss that next week. Do you agree with Aberdein City Council's evidence where it says that it is declining to deal with an application because it is not in the first instance of a hedge, or do you think that that is inappropriate to do that? Or do you think that that is within the bounds of flexibility that you intended? I think that it is difficult for me to give you a definitive response to that, Mr Wightman, because I am not looking at each individual case. I would not want to put a blanket yes or no over that situation, but what I would hope is that local authorities are not seeking to exclude applications on the basis of their own determinations, rather than the determinations that are set out for them in legislation. Can I just check, Mr Macdonald? In terms of what the bill was intended to do, does it matter whether it is a hedge or not? Is the issue not as long as it meets the condition set out that you read out at the start of this evidence session? Will it be a botanist or whoever to determine what kind of plant life are shrubber it is? That is kind of irrelevant, would you not agree, in that whatever changes are made to the legislation or guidance, that should be clear. I am minded that, by having a clearer definition of a hedge, that could be restrictive, rather inclusive, so we have to be careful that there is not an unintended consequence. Would you like to make sure that, as long as it meets the condition set out on the face of the bill that you pass to the member in charge of that, irrespective of what plant life it is or is not, it should be completely irrelevant? If it is impacting on a quality of life on the condition set out on the face of the bill, there should be enforcement powers by local authorities. Essentially, convener, the legislation was written in such a way as to provide a definition of what constitutes a high hedge, but the purpose of the legislation was not to essentially define a hedge within law, it was to create a means by which neighbour disputes that related to high hedges could be resolved. That was the purpose behind the legislation, but we set out that definition at section 1, and that was the definition that should be followed. The question is whether local authorities should be inclusive and open-minded in relation to how they interpret what is or isn't a high hedge or whether they should be restrictive. Right now, some of the evidence that we have had is that they appear to be highly restrictive rather than inclusive. Given that, if there is any area of doubt, then restrictive practices apply rather than open-minded dealing with what is the neighbourhood dispute, where would you sit in relation to that? If there is a row of two or more trees or shrubs, it rises to a height of more than two metres above ground level and forms a barrier to light, by the law, it constitutes a high hedge. That is what the legislation says. Then local authorities have to make a determination as to the effect of the vegetation in order to determine whether a high hedge notice should be applied. I think that other members want to come in and pursue this a little further. Thanks for joining us this morning to try and tease some of this out. I think that part of the problem, and I just heard Andy Wightman saying it to my right as well, is that it actually says that the act applies in relation to a hedge which, and that then takes us back to local authorities perhaps saying, well, we don't know if this is a hedge or not, and therefore we can't deem it to be a high hedge. Can I ask first of all—I think that I recall rightly—that there were some amendments at the time trying to define a hedge. Could you take us through again what your understanding was of those words that the act applies in relation to a hedge which? How would one define that word? That is some of the difficulty into which we have entered, although it does say in brackets after relation to a hedge referred to in this act as a high hedge. We are speaking specifically about the high hedges that we were seeing. What we did not want to do was to get to a situation in which we were defining individual species. If you start to define individual species, you then create loopholes that individuals can exploit. For example, we had discussion around the formation of the bill where it was stated that, if you had Lilanda, I planted, but with, for example, another species planted in between, then potentially, although the effect could be created, you would potentially exclude that from consideration if you defined the specific species that could be considered. Indeed, as I recall, we accepted an amendment from Anne McTaggart at stage 3, which took out, I believe, the definition as including evergreen trees in the legislation, which was the initial consideration that we were giving so that it would also include deciduous, because we recognised that deciduous could also form a barrier to light. That was part of the consideration that we took forward. We were trying not to be overly prescriptive on the basis that we wanted to ensure that the widest number of cases could have consideration. However, it may be that, as a consequence of that, local authorities have chosen to use that broader flexibility in the opposite direction to enable them to rule things out. I freely admit that that may have been an unintended consequence. I think that, if I may convene it, we did hear from a witness that it was Lilandy, a row of Lilandy, which was extremely high and had been planted with the intention of it being a hedge, and the people in the house whose light was being blocked out by it had got that in writing from the person who planted it, and still the local authority did not deem it to be a high hedge. Whether or not that relates back to the problem of whether they deemed it to be a hedge in the first place is something that the committee is going to have to further explore, but I do know that some of my colleagues want to come in on the issue as well. I know that Mr Simpson wants to add to that, plus he takes on another line of questioning as well. I just want to describe a situation to you and ask you if you think that it is covered by the act. I live in East Kilbride. I used to be a councillor there. The area that I live in, there are large areas of that that were planted by the original developers. Trees and shrubs, but not hedges. They have subsequently grown up to form the various barriers that you describe, backing onto people's gardens, but we have a council there who have a policy of not cutting down healthy trees, but we have a number of households who are badly affected by loss of light. Do you think that that situation would be covered by the act? I think that there is a difficulty here for me, convener, in that I do not want to be seen to be attempting to adjudicate on individual cases. If I can come back to the point that Mr Simpson raises about the policy of not cutting down healthy trees, I am trying to find the peace within the legislation, but if I remember correctly, the legislation merely asks authorities to have consideration to issues such as historical or cultural significance and to have consideration to tree preservation orders. I do not think that it makes any stipulation around whether or not the tree is healthy or otherwise in terms of action that could or should be taken. I would hesitate to try and adjudicate on that particular case, because, as I say, I am not familiar with it and I do not think that it would be my position to do so. Describing a situation in general where things have been planted, they have grown up and they have then formed what any sensible person would describe as a barrier, but they are clearly not hedges. I think that we have heard evidence that I am sorry, convener, that I am being distracted by… I apologise to Mr Simpson, because I was trying to let the conversation go as long as possible. I asked him to stop talking, so that is a note to all members. I do not want to speak out of courtesy to witnesses or other members. We have things that have been planted, they have grown up and they are not hedges to start with, they then form a barrier to light. Is it the intention of your act to deal with that situation? The question is around whether there is a right for that to be considered under the act versus whether there is a right for a decision, because the decision ultimately would come down to the adjudication of the individual local authority officer. However, as I say, if it meets the criteria that is set out in the legislation, then there is a duty to consider. That does not mean that there is a duty to find in favour, but it does mean that it should be considered if it meets those criteria. Do you think that councils are falling back on the word hedge? I think so. There is good reason why defining a hedge in legislation could have proven a difficult issue, particularly if one was to only use, for example, the Oxford English Dictionary definition of a hedge. However, if the committee is so minded to consider whether that would be something that they would want to see happen or indeed to have a go, then that is something that they can have a think about. If we call it something else, like the high foliage bill or something like that, then councils could not then say, well, it is not a hedge. Well, potentially. I do not think that we should continue this conversation further, Mr Whiteman, in order to discuss the definitions, which we are not going through just now, Mr Whiteman. Do you want to follow up on any of that, Mr Simpson? That is right. That is right. That is right. Okay, Alexander Stewart. Thank you, convener. Good morning. We had some aspects about wildlife and we had talked about green space when we were taking some evidence. Can I ask about the potential impact on both wildlife and green space when you were taking forward the legislation and defining what was part of the act? Yes, so we had discussions in relation to that with a number of organisations who offered advice in terms of what the potential impact could be on, for example, nesting areas and other habitats. Again, that will obviously have to form a consideration in any determination. For example, I think that one of the cases that I have been aware of is that an order has been passed, but it can only be given effect outside of the nesting season. That has to form part of the consideration for any decision that is made. The same about the whole aspect of green space, because when many of the developments when the houses are built, they create some shrubbery and create green space, which then in turn becomes a massive forest or creates a massive impaliation for some of the individuals who are living in the vicinity of them. I think that there are two, well, I say two, there are probably more than two, but there are a number of different ways in which problems arise. One is people simply planting things like the landeye because they know that they will grow quickly and therefore can block their neighbours in what they maybe think is an attempt to gain privacy but also can be done in a way to give effect to or continue a dispute with their neighbours. In other cases, it is simply that people have lost or do not have the ability to maintain their vegetation properly and, as a consequence, it gets out of hand and out of control. There are a number of ways in which this can take effect and the situation that you describe is one such circumstance. Then, when we took some more evidence, the whole appeal process then came into that because of what was being found by individuals who were having to cope with the situation. Do you think that the appeal process is robust enough from what you wanted to try to have within the act? Because it has then, interpretation has been open to how that is managed. The councils have used that when individuals have not found that they say that it is not a hedge. The individuals themselves have found that the whole appeal process seems to not progress in the way that they expected it to progress, and the councils seem to have an upper hand in the whole process. I have not had people come to me in relation to appeals, so I am not entirely clear on how effective or otherwise it has been for individuals. Undoubtedly, it is the nature of any legislation, and in particular any legislation that deals with dispute resolution that you will find aggrieved parties throughout the country who have attempted to use this legislation to resolve a dispute but have not been able to do so. Undoubtedly, there may be circumstances where people feel that the appeals process has not worked in the way that they would have intended it to. I guess that is something that the committee would need to come to our judgment on. I might ask another question to mop up there, just in terms of the fees base around whether the application of fees has been implemented as expected and whether a means-tester approach to fees is the very or the can vary across the country and be prohibitive, and whether a standard fee across each local authority area would make the process more accessible. If you wish to appeal, there is a cost to that, and that cost varies across the country. Can that be prohibitive? Is there a better way of doing this? The fees issue was one that I seem to remember a degree of discussion about at the finance committee when Mr Gibson was in the chair reliving my past somewhat today. The evidence that we took suggested that, for example, south of the border, the fees system varied quite substantially. What I sought to do was firstly to ensure that local authorities had the opportunity to set their fees, because I did not believe that a simple centralised fee system was the right way to go. I chose not to put a cap in, because the evidence from Wales was that if you put a cap on the fees, everybody just goes to the cap and charges the maximum amount. What I sought to do, based on my experience of what at the time was the House of Multiple Occupation licensing approach, was to build on a mechanism whereby the fee could only be charged at a rate that would cover the administrative costs of dealing with the application. Essentially, you could not just arbitrarily set a fee. You had to demonstrate that that fee related to the administrative costs. I know that there are some local authorities who suggested that they are undercharging on that basis. There are some people who would suggest that local authorities are overcharging on that basis. The other thing that I set out at the time was that my expectation would be that if I was a local councillor and people were coming and tapping on my door and telling me that they couldn't access the fees that were being charged, that they were prohibitive, that they weren't being done in such a way that was fair to people, I would expect local councillors to have due regard to that when it comes to making their decisions at a committee around what the fees should be and how they should be structured. That was instinctively why I went in that direction, rather than going in the direction of saying at a national level that this is the fee that will be charged in all parts of Scotland. You mentioned earlier that, if a hedge meets the definition of the act, the council has got a duty to consider it. However, the act appears to me to allow people to make an application with an accompanying fee. In some instances, the application has been made, the fee has been paid and the local authorities have come back and said that that doesn't qualify under the act. It seems that those circumstances are a bit unfair to pay the fee in the first place. Is that your understanding of how the fee structure works? It has certainly been one of the complaints that we have heard. Section 4 subsection 4, a fee paid to an authority may be refunded by it in such circumstances and to such extent as it may determine. I would be surprised if, in the circumstances that you are describing, the fee was not also refunded. If the application is being dismissed before any assessment has been undertaken, it should see the fee coming back. However, the fee is there to enable a determination to be made, not necessarily for a positive outcome for the individual who is making the application. I understand that. A certain amount of work has to be done to determine whether, in fact, this is a legitimate application. However, in those instances where they are being knocked back very quickly on the basis that this is not in their view a hedge, as opposed to a full determination, which might take some time, one or two aggrieved parties have suggested or appear to be suggesting that that is a bit unfair that they pay the full fee, when, in fact, they should never have. In the act, it makes clear that there should be some preliminary investigations as well. However, the question is, should there be some minimum fee for ensuring that it is a valid application in the first instance, and then you pay the full fee for the determination? I think that that would be a potentially sensible suggestion. Obviously, it would depend on how that was then applied at a local level, of course, if the committee was of the view that it should continue to be set at a local level. It would then be for local authorities to determine what that initial fee would be. However, I do not think that that is an unreasonable approach to suggest it. A number of applicants have expressed concern that they have to pay the application, even if, in fact, it is found against the hedge grower. It was just to see whether or not you felt that if an application is, in fact, found against a hedge grower, then the hedge grower should pay the fee. Quite clearly, if that individual had cut the hedge in the first place, someone else would not have had to pay several hundred pounds to take that case forward. It would coincide with the polluter pays principle. That came up during the discussion at the time, and it was Gavin Brown at the time on the finance committee and Margaret Mitchell at the local government committee who pursued that. My thinking at the time was along the lines of, firstly, I felt that the means of the legislation was in place to help to resolve neighbourhood disputes. You then had an application made, an order is granted, the owner of the hedge complies with that order and then is told, right, thanks for complying with that order. You have now got to pay your neighbour £500 or £400. My thought at the time was that that might not be the best means by which to ensure that the neighbourhood disputes are completely resolved. The second part of that is that if the individual said, no, I am not going to pay that, the local authority might find themselves in a situation of essentially expending disproportionate sums of money to recoup a few hundred pounds. There was a question there as to whether applying it in that way would mean that you might have local authorities having to go chasing relatively small sums of money for the authority. Granted, not for the person who has paid the fee, I take that on board entirely. The fee in itself is a means by which resolution can take effect to the dispute that was under way. That was the determination that I took. I understand that Northern Ireland is looking at a fee repayment approach where it followed exactly the system that you suggested. I have not seen whether that has had any difficulties since their law came into effect, but the committee might want to look at that further. I would not pay the neighbour, but it would pay it back to the council. The council would refund the neighbour. I would think that that would be the mechanism. I just think that a lot of people feel quite hard done to get rid of hedges that block their light. They have to pay £700, and not all of them feel that they can afford it. Certainly, in their constituents who came to me tend to almost always be elderly, retarded people who are not all particularly well healed. We have evidence that one or two people have been put off by the application process because of the fee. I accept what you say that there has to be a fee so that councils are not out-of-pocket themselves so that they do not get random applications that would choke up the system. However, if someone is found against you, it is up to you to make restitution, I would have thought. I do not see that the person who has been in the right throughout this process should effectively be out-of-pocket because of its stressful situation. If it had been resolved without action through an application, the person who ultimately had to cut down their hedge would not be out-of-pocket in that regard. I think that, in light of the experience of the act, that is something that should certainly be changed. Again, at section 4 of the legislation subsection 2, an authority may fix different fees for different applications or types of applications. There is nothing in the legislation that prevents or precludes authorities from introducing a scheme, for example, for the type of individuals that Mr Gibson refers to of people on low incomes or people who are retired who do not necessarily have the means by which to pay a lump sum up front to either pay that over the course of a year in instalments or to pay a reduced fee based on their income. The ability for authorities to do that is there. There is nothing in the legislation that prohibits or excludes them from doing that. I probably conflated two issues. One is the cost in itself, and I think that South Asia is the only local authority that does have a means testing and a sliding scale of application costs. The second thing is the natural justice of being out-of-pocket when a decision has been found against the person who has had to take the application against them. People will obviously be in a very stressful situation for both parties, but it is just a natural justice issue in that regard. I take on board the point, and I think that we rehearsed that during the debates at stage 1, 2 and 3 in the last session. I take on board the point that you would pay the fee to the council who would then reimburse, but people would have an understanding of where that money was going in the grand scheme of things, and it might have the side effect of creating further animosity between neighbours. I take on board the point. From previous sessions, we have heard from people all across the country who have gone through the process in terms of getting in touch with the local authority, trying to go through the high-hedge process. Before they get to the notice being served, their neighbour or whoever it is has cut down every second tree. Do you have any view on how we can safeguard against people trying to get around the legislation like that? I am not sure, to be honest. It would disappoint me if that was happening across the country, but, in those circumstances, I think that there is the potential, I suppose, to look at the historic position in relation to what was there and whether there is the likelihood of the situation continuing to be exacerbated by the individuals. The practice from what we have heard is certainly a pretty common place. When we heard from local authorities, they washed their hands of it and said, well, if every second tree has been cut down, it is not a hedge. There was a lack of, I suppose, taking responsibility for it. To me, it is certainly a bit toothless in terms of implementing local authorities saying that they cannot do anything with it. I do not know whether they are waiting for action from Government on that, but there is a bit of a disconnect between the intention of the legislation and folk who are deliberately going out to try and get around this legislation. That will always happen with legislation, unfortunately, where there are individuals who are so minded to try and circumvent the law. I guess the question would be whether or not the committee feels that a change to guidance or to the wider definition would help those individuals. Of course, the difficulty there is that if you were to broaden out the definition, you might then start to get into difficulties in other areas as well. Unfortunately, I am not sure that we can always protect against those individuals who wish to be vindictive in their approach. Just one more question about the legislation. How was the legislation intended to deal with new houses when they were built and there is already a high hedge existing? To be fair to the hedge, it was there first. How do we deal with that? Well, yes, I am always keen to be fair to the hedge. The whole purpose of the legislation was that it was not just a case that you move into your house and there is a hedge next door and you say, right, that is it, I am applying for a high hedge notice. You have to demonstrate that you have gone to some extent to try and resolve that in an amicable fashion with your neighbour. I would expect that, if somebody moves into a property, there is a hedge next door as a consequence of their house being built next to it and they say, well, that is causing me a bit of a problem. The first step should be to go round and chap on the door and say, look, is there any chance that you could maybe trim that hedge and help to create a better situation for me? If there is no amicable resolution to this, then that would be at the point at which an application would be made. It would not be simply the case that you would move in and say, I am going to get rid of that hedge by putting in a high hedge notice. You would have to demonstrate that you would try to come to some amicable agreement with the individual who owned the hedge in the first place. Thank you. Can I just mop up on a little bit of the general growth question in terms of Jenny's initial point in relation to someone who goes through the process of trying to get a high hedge notice because of the detriment that they are suffering under the terms of the act? Somewhere down the line, before that high hedge notice is issued, or enforcement action is considered, the hedge is pruned or trimmed in the way that Jenny Goreith was outlining. The point that has been made to this committee is that the enforcement should be against the original hedge at the point where the application was made and a determination should be based on what the hedge looked like at that point of application. If the determination of the hedge should be removed or cut completely or trimmed to a certain extent, that should be the enforcement action rather than retrospective mitigation action taken by the person trying to protect their hedge just to game the system in a way. Could legislation or guidance be changed so that local authorities have to rule based at the point where the application went in from the plaintiff? That would help a lot of people whom we have heard from. I think that the difficulty there, convener, would be that the only evidence that you would have would probably be photographs, and it wouldn't be possible for the local authority to make a firm determination on, for example, the height. Now, in some of those things, it will be very obvious that it is taller than two metres, but you always run the risk of opening yourself up to challenge if you make your determination based on anything other than a full consideration of the application. I could see difficulties for local authorities in those circumstances. Do you think that in terms of natural justice, Mr MacDonald, it would be a good and positive thing to do if we could make the guidance or the legislation point in that direction? I accept that it has to be a count taken for borderline cases, but the first thing that a local authority did once the application fee has been made is to come out and do a basic assessment situation, photographs, video footage, whatever, and it gets banked away from processing at a later date. It could become fairly obvious. I wasn't responding on the basis that an initial determination or initial assessment would have been undertaken. In those circumstances, if a local authority officer has been out and examined and then goes away to make their determination, and in the intervening period, as you say, some action is taken, they should still consider issuing a notice because the notice may require more action to be taken than has been taken in the intervening period. That would be for the local authorities to determine. The final question relates to that. As I was asking that question, I assume that there could be a situation where the applicant for a high-hedge notice is dissatisfied and they could seek to appeal that determination, but they could be told, look, this is a different structure now. You have to apply a second time for a high-hedge notice. This is a different beast that we are looking at now. Is there anything in terms of the regulations that you are aware of that could preclude local authorities from charging fees twice in such circumstances? I am not aware of that. I do not think that there is a kind of a you can only apply once, and that is it. In general terms, you could potentially apply again in future if, for example, the situation developed beyond that, which had originally been assessed by the local authority. However, in the circumstances that you have described, I am not sure that there is anything that would automatically prevent that from happening. Just following on as well from something that Jenny Gilruth was exploring with you, Mr McDonald, the issue in the act about reasonable enjoyment, I wonder if you could maybe talk a little bit more about what was meant by that originally and what might be included. Well, I think that it is about looking at how the barrier to light that is created affects an individual's ability to enjoy their property, so whether that is the ability for them to use their garden or for the ability for them to receive light into certain rooms in their house. Those are the kind of determinations that we were thinking about in relation to that. I mean, I met with people during the course of the legislation who had to have the light on in one room in the house 24 hours, well, not 24 hours a day, but all through the day because they could not get any natural light into the building, so those were the kind of considerations that we were thinking about there. Do you think that that should be apparent to any officer who was making a judgment on that? I would expect that those kind of things would be fairly obvious, although there will obviously be degrees to which they apply. Thanks very much. You spoke at the beginning when you answered the convener's first question about becoming back to some practicalities. Could I just ask if you have any view on the suggestion that there should be a time limit set from the application of the hedge notice to the decision of the council, obviously bearing in mind the issue that was raised earlier about wildlife? I think that there were some timescales laid out in legislation, but one of the ones that we did not set at the time was the time that it takes from the individual applying to the authority, to the authority making determination. I am aware of people who have mentioned the length of time that it takes to get a decision from the local authority and there may be some merit in looking at that. Another issue that has come up in our exploration of this is whether or not perhaps there should be fixed penalty notices for failing to comply with a high hedge notice. Do you think that that is something that might be worth considering? The decision that we took was that if you did not comply with a high hedge notice, the local authority was empowered to come in, do the work and then recover their costs, which would probably be much more than it would cost the individual to pay a fixed penalty notice. I am not sure that adding a fixed penalty notice on to the top of what would be the cost of the work that the local authority undertakes would necessarily act as any more of a deterrent than that. If I could explore it slightly further, I think that maybe part of the problem with that is that there might be a bit of hesitation on the authority to go and do the work, perhaps because you are taking steps to go to someone else's property, the repercussions that might come from that, so there might be a bit reticent around that, whereas perhaps a fixed penalty notice could focus the mind of the owner of the high hedge into getting the work done themselves? It could, but it also potentially elongates the process for the person who has made the application to get the resolution that they have sought. Any fixed penalty notice has a period of time in which the individual can pay it. If they then choose not to pay it, the local authority would then have to chase them up on it and potentially get into a slightly more protracted process before the local authority eventually goes in and undertakes that work. Instinctively, my view at the time was that the best way to ensure compliance was to say, if you do not comply with this, we will do the work and you will pay for us to have done the work, which might cost you more than it would cost you to actually get it fixed yourself. That was my view at the time, and I do not think that my view has shifted in relation to that. Do you think that it should just be reasonably simple that the local authority, having issued a high hedge notice, having done all of the work, having deemed it a hedge and a high hedge, should be able to just go in and take down the hedge to a reasonable level and give the bill to the owner of the hedge? Yes, and local authorities obviously have a number of different ways in which they are able to get payment from individuals for the works that they undertake, but you give people a reasonable length of time to comply with the order. If they do not comply with the order, the authority then has the power to intervene and recoup its costs. Do you think that, overall, guidance needs to be more robust to authorities? In terms of the overall? I suppose that, in terms of some of the issues that we have been discussing with you today about the original tension of the act, and how it is put in place, how local authorities are interpreting parts of it? I think that there is a question as to whether authorities are complying with the spirit of the legislation, as it was intended. Perhaps guidance could be looked at as to whether it could be tightened up to make that more likely. Thank you, Kenneth Gibson. That leads me on to the bit that I was going to ask, which was about flexibility. You talked about, in the definition at the start, about holy or mainly, the interpretation from the local authority representatives that we had last week seemed to be very strict and erring on the side of caution. Indeed, they all made the argument that, although all the witnesses that we had before that, in terms of members of the public, wanted the act to be strengthened, so to speak, to eliminate some of the avoidance issues that Jenny touched on, the council seemed to take the opposite approach, which was to define a hedge even more narrowly, which I do not think would impress many members of the public who brought that forward. In terms of spirit of the legislation, do you feel that the local authorities are working within that spirit, or do you think that there may be a bit too cautious in terms of how they are interpreting the legislation? I suspect that, as with most things where we look at things across all the local authorities in Scotland, there will be a kind of Heinz varieties approach, and there will be some who undoubtedly are taking a positive approach in relation to this, and there will probably be others who are taking an approach that is perhaps less in keeping with the spirit of the legislation. That, I suspect, will be what you would find. I think that we then need to consider whether or not the best way to achieve a parity of approach is through the guidance that comes with the legislation or whether some of that can be driven at a local level, of course, because ultimately all of those officers who sit before you from local authorities are ultimately answerable to the committees of the council in terms of the decisions that they take. The legislation has been out now for some years, and we have had a lot of evidence with regard to how the legislation is or allegedly is not working. How do you feel the legislation can be improved, either directly or through guidance? Given what you have heard, how would you, if you could effectively go back in time and redo this? Is there any particular glitch that you feel should be addressed, or are you more or less content with the legislation? How would you make it better? Gosh, I have to be very careful here, of course, that I don't— because, obviously, it's now the responsibility of the local government planning minister, and, well, you know, it would make for it. It's not under your portfolio, Mr Rees. It's not under my portfolio. No, no, childcare in early years does not cover high education. I was distraught to learn when I took on my portfolio. It would certainly make for some interesting conversations in the car back up to Aberdeen with Mr Stewart. Broadly speaking, I think that what we have seen is that the majority of cases have either resolved themselves or been resolved, and what we are left with, as was the case south of the border, are those more intractable cases where you're dealing with potentially long-standing disputes individuals who are, as Jenny Gilruth has highlighted, exploiting opportunities to essentially circumvent the effect of the legislation. I'm not sure that it is possible to build legislation that will enable everybody who applies for a high-hedge notice to achieve a satisfactory outcome for themselves. That was never the intention of the legislation in the first place. I recognised at the outset that this was about providing a determination on a neighbourhood dispute. It wasn't about coming down 100 per cent on one particular side of those neighbourhood disputes. I think that the question then is about whether or not the way in which the legislation has been interpreted at a local level enables people to have confidence in the decisions that are made, rather than, you know, there's a difference between being unhappy with a decision that is made, but having confidence that the decision has been made using the legislation in the appropriate way. I think that there then is a question around whether that is happening in all local authority areas. The question that the committee would then have to reflect on is whether it's happening in some places but not in others. What's the difference here? Is it about the approach that individual officers are taking and is guidance the best way to then get them to take a different approach? Or is it about perhaps local councils when they come to make their determinations around things like fees and the process having a more robust approach to ensure that they are taking things forward in the spirit of the act, as it was intended? I think that I've kind of not answered your question, Mr Gibson, as you may have noticed, but I think that those are the questions that, had I been wise after the event at the time, I might have given a bit more consideration to when putting the legislation together. Mr Macdonald, have you perhaps answered what the final question was going to be? Is there anything else that you would like to put on the record here this morning as we continue with the post-legislative scrutiny of the act where you were the member taking it through the Parliament? I'll make that all for open to you just now, if there's anything. Only my gratitude to the committee for allowing me to have this jaunt down memory lane, convener. Well, it doesn't end there. I think that whatever we decide to recommend as a committee, we're keen to hear from you again further in relation to that. I will look forward to it. And we're also keen to hear more about that car journey with Kevin Stewart, the minister for local government. Sure, he'll tell you all about it next week. Well, that was my link to next week's evidence session, where we'll indeed have the minister before us who does have a responsibility for making sure that this act is working as it should be, so we'll hear from him next week. So can I thank you for your time this morning, Mr MacDonald, and can we suspend briefly before we move to the next agenda item? Thank you. Welcome back. We now move to agenda item 2, which is post-legislative scrutiny of the disabled persons parking places Scotland Act 2009. The committee will take evidence from a private car park operator and a supermarket on its post-legislative scrutiny of the act. Can I welcome this morning Tony McElroy, head of devolved government relations and communications, Tesco PLC? Thank you, Mr McElroy, for coming along. Duncan Bowens, managing director of NCP. Thank you, Mr Bowens, for coming along. We'll move straight to questions, if that's okay with you, and we'll go to Graham Simpson. Thanks, convener. Thanks very much for coming. So you're both from different sectors, so perhaps I can ask the same question of both of you to start off with, and it's this. Do you monitor in your car parks the misuse of disabled spaces, and if so, how widespread is that problem in your car parks? If you'd like me to go first. So to get into context, we have 15 car parks, about 5,000 spaces in Scotland, and we do monitor and we do enforce disabled bay abuse. On average, over the last two years, 4% of all penalty charge now is issued around 900 are for disabled bay abuse. That compares to sort of 2% across the rest of the UK, and we monitor all of those, and these are purely the ones in these numbers are for the abuse, not for the non-payment. So we track all the data and the records going back for three or four years now. So yes, we do. Yeah, similarly, so I suppose for a bit of context, in over 200 Tesco stores spanning all of Scotland from Highlands and Islands through to exceptionally urban locations, Princess Street, Sociolstrate and so forth, we accumulatively have about 39,000 parking spaces, parking bays in Scotland, of which about 2,100 are disabled bays. So last year, in the last financial year, we issued about 500 fines for disabled parking bay abuse in our stores in Scotland, and that is currently monitored through a mixture of fixed cameras and marshals, albeit that marshalling approach is one that we as a business are moving away from, as the dawn of new technology enables us to offer a store-by-store opportunity for our colleagues to enforce parking, so every single store would be able to enforce disabled parking bays harnessing the power of technology. We can empower our colleagues to be equipped in order to monitor disabled parking bays, rather than, historically, where we would have taken an approach that was led by an intelligence-led approach, so where there was customer complaints or colleague feedback about abuse, we would put in marshals the step change in technology, meaning that every store will now be empowered to monitor the disabled bays that they have through the technology. I guess that a lot of your carparks will have barriers that people have to... Some do, so some are surface sites, as you can imagine, that are what you call the pan display site, so they are patrolled, and the barrier sites, they're still patrolled, but as you say, yes, barriers on the front. So those barrier sites, do disabled drivers have to pay? Yes, they do have to pay. Yes, they do have to pay. They're still patrolled because the numbers I gave you in front are not for non-payment, these are for people who have not displayed a blue badge whilst parking in one of those spaces, so these are manually contravention notices that have been spotted by an individual patrolling rather than... So one of our sites in Glasgow is an NPR site, as Tony said, it looks technology, but it can't monitor every space, so we patroll those for this sort of abuse, the cameras are normally for non-payment. Okay, so just at those barrier sites, so the disabled people have to pay the same as everyone else, and you as a company enforce, take enforcement action if non-disabled drivers are using disabled space? Absolutely, and one of the things to how we really approach this was we've spent a lot of time as a business, we were pretty much found members with DMUK's disabled parking accreditation, so we spent a lot of time taking consultation from Helen Dolphin, MBU leads that, and also people's parking, we held 15 accreditation across Scotland, and they gave us a lot of advice into how to approach this with regards to enforcement, friendly enforcement, charging of disabled customers, and one of the things that came paramount from this is, and the council we got from Helen herself was, it wasn't about the charging or non-charging of disabled customer, it was more about the enforcement of the spaces and the right facilities, so we spent a lot of time working with them, they came in, they came to all of our front-line conferences, spoke to the actual front-line guys who patrol about how to enforce, why they're enforcing, so most of our route we took on this approach was from a third party, what we call expert in this. Is there, is there, does I hear what you're saying about your own company, and that sounds fine, I described at the last session another quite big company which in my experience, I didn't name them, I won't name them today, but in my experience does not take enforcement action or doesn't appear to because their disabled spaces are routinely abused, is there an industry body in Scotland that monitors this? The BPA are accredited to all large professional parking operators, you should be a member of the approved operator scheme in the BPA, they should give guidance and legislation, I think when it comes to disabled parking, yes there is legislation on it but it's also the way you approach it, so if you imagine when we ask people to issue a penalty charge of any description, it's always quite an emotive thing for someone to do because it can be confrontational, it can be quite difficult, but I think as a business what we did was we tried to challenge the guys issuing them with a disabled approach after learning why they're issuing the ticket, so they follow, I mean it's more of a company guideline, there are some legislation rules around it, how, if they have to enforce or not, it's down to the individual company, some don't charge.  From our perspective, yes, and actually one of the additional benefits of the technology roll-out is that there's a signage refresh as part of that, so yeah, so I mean we, as a business, absolutely want to distinguish ourselves on customer service, so that's about making sure that our car parks offer a full range or suite of opportunities for our customers, so whether that's clearly marked disabled base, which are close to the front of the store and have a flat short access to the front of the store, to welfare parent and child parking, which again is clearly marked. In fact, we're in the process of trialling mum-to-be parking as well, so it's an area that's constantly innovating as we continue to speak to our customers about what they want and expect to make them have a fantastic shopping trip. Can I just check how much money is raised from enforcement? Tell me what enforcement means, I suppose, is what I'm saying, so what's the level of fines, how's it collected, how's it escalated, where does the money go, I suppose, just to get a context to that before we move on to the next section of questioning? Mr Bouns, could you maybe? So over the last two years, we've issued 981 penalty charge notice for disabled by abuse. That charges £100, it's £50 if paid within 14 days. That revenue goes back into the company. Okay, is that to subsidise our cost recovery for the patrolling? Yes, I mean that's not, I mean you can imagine the patrolling and then the signage alone, I mean we spent over £200,000 with the signage probably three years ago when we reached all our terms and conditions and signage boards. In relation to also the question before, all of our car parks are fully signed for disabled parking by abuse and clearly state what the charge will be if you do use it. So, yes, the cost really goes back into business to operating more patrols, more signage. There's maybe a debate for another day about what should happen to that money, given the fact that I'm sure your company does make a significant profit, actually. That's maybe a debate for another day, but just put on record maybe there's queries there about how that money could in theory be used. That's not what we're exploring today, but thank you for letting us know that, Mr McElroy. Yes, so it's a £70 charge in Tesco, that's reduced to £42 if paid within 14 days. All of it is done, all of the revenue that's generated through that is absolutely reinvested in parking enforcement across our store estate. We certainly don't generate enough revenue through fines to recover the cost of refreshing the bay markings, refreshing the signage, employing marshals and cameras and so forth. At the moment, the revenue that's being raised is being reinvested in technology and the tech roll-out that will hopefully see enforcement rates go up. As enforcement rates go up, you would have a diminishing return, so you would hopefully be generating less money as people saw a higher degree of enforcement taking place. There's probably less money involved than maybe it is. As I said, that's good to put on the record. There's also a debate for another day, it's not particularly what we're looking at just now, but it's important to understand how those revenues are used. It's a short follow-up to that line of question. Obviously, the act that we're looking at, the ethos there would be to make sure that, as much as possible, disabled parking spaces are left free for people who are entitled to use them with disabilities with blue badges. However, if the people who are entitled to use them happen to make a mistake, for example, the badge is turned upside down or the badge falls off onto the seat, is that something that you take into consideration? If you've issued a notice, would you then cancel that notice if the person could send you a copy, for example, of their blue badge? The answer to the question is that we review every case for every penalty charge and notice if there is an appeal. There is an appeal process for all notices through Poplar, which is an independent body, but also we do take a common-sense approach. You can imagine if someone parks in a disabled base and they haven't got their blue badge, and the difficulty is if they're evidently disabled, one of our colleagues is not going to say, well, you're going to get a ticket, but there's that approach, but there's also, if someone generally falls off or you certainly wouldn't get one of having it upside down, but if there is an appeal and someone's sent a photograph in, normally we would turn around and go, that's obviously common sense. What we're looking for is blatant abuse. One of the ones we challenge the most in this, the most difficult position is airports, where you have disabled parking at airports. He's one of our biggest challenges. 27% of all our tickets are at airports because people just want to drop off and pick up. That's probably our highest enforcement of disabled parking, but every appeal for every ticket, whether it's disabled or not, goes through an appeal process. Mabic, you put the same question to Mr McElroy, particularly because, in my line of work, I have dealt with many cases of disabled drivers who have actually had their badge upside down and have been issued, particularly in Tesco car parks, who have then been issued with notices and it's been a bit of a fight as the MSP to try and get that overturned for them. Yeah, and so there is absolutely an appeals mechanism, an appeals process there and obviously if somebody could prove that they were a blue badge holder and had been issued a fine in error, a ticket in error then, we would be able to deal with that. I think what the technology that is being introduced across our estate enables us to do is to take out some of the third party operatives who are, frankly, incentivised, not on customer service, but they're incentivised on the volume of tickets that they issue and put the power to enforce disabled parking in the hands of our colleagues who are trained to Tesco standard of customer services. As a business, we want great customer service and we want to enforce disabled parking basins about striking the right balance and our view is that that's best done by Tesco people rather than the third party, so we're on that trajectory. Okay, thanks. Can I just also convene and ask Mr Bowns about the BPA, you mentioned the BPA earlier. Does that cover Scotland and, if it does, is it more about the companies rather than the customer? I don't actually know the coverage of the BPA because obviously they represent themselves and we're a member of those, but the BPA is the governing body of all professional parking and they set the legislation to be. So, for example, to issue a penalty charge notice of any description, you need DVLA access to be able to get keeper information. If you're not a member of the approved operator scheme of that, you can't have that access. So it's their coverage in Scotland. I don't know who's a member here in the BPA, but we are and that's the governing body. Okay, thank you. Maybe just to put on the record that we did invite the BPA to today's evidence session, but they were unable to make it. They didn't decline because they didn't want to attend, but they were unable to make it for today's evidence session. Alexander Stewart. Thank you, convener. Gentleman, you've both talked about the accessibility, ensuring that your disabled parking base or your locations within your car park or within your outside your store to make it easy for individuals who have a disability to use your facilities. Mr McIroll, in stores like your own, you try and encourage people to come in and you've done lots of things within the stores to do that as well to make it more disabled access and progress. My question would be about repeat offenders. Have either of you looked at how you're going to tackle individuals who are repeat offenders and how the best way to manage that process, because that continues to be an issue across both of your sectors? Yeah, I think that from our perspective, I think that there are a hard core of repeat offenders who, I suspect, are not uniquely repeat offenders in Tesco. I suspect they're repeat offenders regardless of where they're parking, whether it's on-street, off-street or so forth. One of the things that we can capture through a roll-out of handheld technology is that it's much easier to identify patterns of behaviour from, frankly, antisocial drivers and social parking. In a very targeted way, we're in a place where, increasingly, we can build that evidence base around those repeat offenders. You mentioned the design of the car parks. I mean, just to say that there is a huge amount of effort goes into thinking about the design of our car parks. So, for example, we will try and ensure that cash machines, for example, are not overly close to the disabled parking base in a way that would incentivise somebody to just think, I'm going to nip in and take out some cash machines. So, we'll have a cash machine that would be accessible for our disabled customers or disabled colleagues, but in the whole, extremely choiceful in terms of how we lay out the car park and make it as accessible as possible for our disabled customers and our disabled colleagues as well, we can come on to that separately. However, as the largest private sector employer in Scotland, we are fundamentally committed to having that diversity in our employment base as well and we are an active recruiter of colleagues with disabilities. They feed into that whole process as well as trying to advise how to manage the whole process about the parking and the way that that whole operation works from beginning because some of your stores are open 24 hours a day. And there will be peak times when things happen and when bays are being used when individuals require more support in the system. In terms of our business mission of serving Scotland's shoppers a little better every day, we want to… Other supermarket chains are available, as are small corner shops. To my mind, what that means is that ensuring that disabled customers can access the car park is a clearly identified bay and the car park is a safe and secure environment for them to park. As I said, there is level access to the front of the store and then customers who have specific support needs in our stores have access to them. For example, in the last year, we have purchased around 1,000 specialist trolleys for disabled children in order to help to make the shopping trip for parents who have children with specialist needs just a little bit easier. Through to the fact that we have a training roll-out for colleagues in disability awareness, helping our colleagues to understand perhaps the specialist needs of disabled customers. Thank you, convener. Is it Bones or Bones? Bones. Bones, I apologise. No, sorry. So Duncan. Yes, that's easier. In term, I think the original question was in relation to repeat offenders of it. That might be the wrong expression, but those who persistently park in disabled bays, you wouldn't be able to track any of that within your company. And if your company does have a tagline, feel free to put it on the record as well. A bit of marketing. I think the challenge with repeat offenders, and we do have data. So we do monitor all the data from every time a ticket is issued. We know to who. This is getting a lot more sophisticated, something we can be a lot clever about, especially if we share between businesses, who these repeat offenders are. And we do get to the point where we issue a banning notice. Now, you can imagine that that is a point where we inform the client because of your repeat offenders, you are banned from the site. Enforcing that is very difficult. You know, it's 24-hour day car park. How will you know if this person is in or out? They could use a different vehicle. It is very difficult, but we do take steps to say that you are now banned from this car park. So we do try and do that, but it can be deemed as very difficult to enforce who has been banned. But that's the answer to that question with... Okay. Do I have an issue to put that on the record? Andy Wightman. Thanks, convener. The thrust of this legislation is to create enforceable parking places for disabled people, which are then policeable by public authorities. We've had quite a bit of evidence from public authorities expressing their frustration at their inability to reach agreements with private operators and off-street sites with this regard. Do you have any views as to why that might be? We have no record of any approach from a local authority to patrol any of our car parks. We've checked with, I've gone back the last two years, with anybody of our management team in Scotland. So if there has, we have no record of that. I mean, we patrol anyway and enforce, and you can see by the data we do enforce. This isn't to do with the powers of local authorities to patrol. This is to do with bringing the disabled parking places that you provide within the enforceability of local authorities, as opposed to being enforceable by civil action in the private sector. Have you had any approaches from any local authorities across Scotland? When I speak to my team in Scotland, we have nothing on record of that now. I'm sure that that would be very, very helpful for us if you're able to interrogate that. There's absolutely a discussion here. If you've got anything, we're absolutely happy to have discussions. That's fascinating, because local authorities are under a duty at least every two years to attempt to create these enforceable places. Mr Mackay, do you want to comment? I don't think that, given the volume of stores and, I think, we touch every single local authority, I'm not sure I could be quite as absolutist in terms of levels of contact. What I would suspect, however, is that the local authorities will adopt a risk assessment as to whether businesses within their communities are enforcing disabled bays. I would certainly like to think that any local Government official who is already a member of Police Scotland who is approaching one of our stores would quite quickly see that every store has got a parking plan and every store has got an enforcement plan for its disabled parking bays. I suspect that that's the approach that local Government takes, but I can speak on their behalf. To clarify, Police Scotland and local authorities don't have any powers to do that on private land, that's the whole point of this legislation, is to enable them to mandate them to try and bring disabled spaces into the staturally enforceable regime rather than the private civil law enforceable regime. Is your argument basically that, from your organisations and there are many, many more private operators out there, there's GP clinics and all the rest of it, from your point of view, there would be no need for that? From my perspective, I would say, look at the evidence of what Tesco is doing and we want to set ourselves apart from our competitors by offering great service for our customers, so we want customers to choose Tesco. Therefore, if our customers have access to the car park and access to a disabled parking bays is an important part of their shopping trip, we want them to choose Tesco for exactly those reasons. The fact that it becomes a competitive element among retailers is probably quite a good thing for disabled motorists. That's not the evidence that we've heard from disabled interests that it should be left to the market in competition. It's about having the right and the expectation that there is availability of disabled parking places and that they are properly enforceable wherever anyone chooses to go. They should get that at Tesco. I appreciate that both of you will understand that they will be giving evidence based on the experience for both your companies. Mr Bones, you have to have pain display surface sites rather than the kind of in-the-sky barrier sites or what have you. I can see a common sense approach that a TRO by a local authority could bring disabled bays in line with every other disabled bay in a town, village or city, and that local authority wardens could enforce that. Whether there was a financial accommodation between your company and the local authority, I have no idea, but that would seem to be a common sense dangerous thing in politics, but that would seem to be a common sense approach. Mr McElroy, I can think, depending on the Tesco store and my constituency, I can think of one large TRO that sits away from everywhere else, so it might not appear common sense to have local authority wardens patrolling the bays at that store, but I can think of another one in a different urban setting where you'd like to see the local authority wardens out and about and, given the fact that there are statutory duties and local authorities to be approaching your companies every couple of years, would it not be reasonable whether or not you put your bays over to be enforced by the local authority or not that at least a partnership agreement should be struck by each local authority and your companies? If I answer that, we do across the country already have partnerships with local authorities, so some of our contracts we have with St Albarns, with Manchester, are already, our all our penalty charge notice, are served by the local authority under a TRO, so depending on the mechanics of the actual agreement that we work under, so it is possible when we do do that, whether that would make enforcement or not better because you know we track and actually say our own rates actually normally percentage wise are better than the local authorities, I think it's because of our closer manpower and they are on site all the time rather than patrolling eight or nine times, but we do do that under TROs with some councils already. Any examples in Scotland? No, not in Scotland. It does, I mean this is a question for local authorities rather than your company, but it does seem a little bit odd given the statutory duty to approach each of your sites every two years on local authorities that that has been progressed. Mr Mackerel, what's your experience? I think the point that I would make on local authority enforcement is similar to drawing on our experience where we've had third party operators patrolling our car park, you know the reason why we've moved away from having third parties patrolling our car park is so as we can set the standard and what great service looks like, we can set the standard and how we work with our customers to enforce those bays, so in the same way as a private operator patrolling our car park, which still happens in Tesco at the moment, but that private operator, probably it would be the same with local authority, we want to move away from that, bring it in-house and have Tesco set the standard for what great service looks like. I mean, I suppose the case could be, Mr Mackerel, and it's not a reflection on Tesco, but the law of the land should set the standard for what great service looks like and that was the whole point of this particular act. Now, if any private company with their own land can go beyond that and provide an even better service, then fantastic, I suppose, the point that I'm making is that given their statutory duties and local authorities to approach companies every couple of years, does Tesco have any recollection that has been approached by a local authority? Dunedee has tried quite hard, I'm assuming that Tesco is in Dunedee, so what's the experience of Tesco in relation to how they've had that discussion with local authorities in Scotland? I wouldn't be able to comment specifically on any local authority, I'm not aware specifically of individual local authority, local authority agreements or local authority conversations that we've had, but we deal with local government officers in our stores probably on a near daily basis from licensing standards officers through to community work and so on. I think that our store in Alwa even shares a car park with the council office. I think that the nature of our business is such that we have a near daily relationship with local government and I would be absolutely confident that a local government officer approaching one of our stores would quite quickly see that every store as a parking plan, every store manager is committed to offering our customers a great safe place to park. We've got local authorities coming to our committee, I think it's next week along with Police Scotland to talk about enforcement and the statutory duties there and just put on the record again, we are scrutinant, this is post-legislative scrutiny, if there are ways to improve the legislation which means there's a better way of formalising the relationship between private companies, private land and what is the law of the land with local authority statutory duties then by all means let's look at that, but we have had some evidence saying that the take-up from large private companies has been pretty poor, but from what I'm hearing today, maybe the proactive approach of local authorities may not be all that should be either. Is there any partnership agreement? Mr Bones has helpfully said that there is no partnership agreement in Scotland that he's aware of for his company. Is there any partnership agreement in Scotland that Tesco has entered into with local authorities? Not that I'm aware of, but it's certainly in a formal sense, but we would have a regular relationship with local government at all levels. Maybe there's informal discussions there and nothing formal has been created. Elaine Smith, you want to follow up? Thanks, we don't mind because I think one of the main reasons for perhaps inviting you here today was to explore how you feel about the enforceable parking base in your areas. We'll leave that to one side for the moment because I think that that has been explored by the convener and others, but the other side of that is how do you then enforce your own situations? I can understand with barrier parking, Mr Bones, that that would be easier to enforce, but if you look at something like Tesco, if you give notices or try to charge customers for parking in disabled places when they were not meant to be parking, what's to stop them just ignoring it, given its contract law? Potentially, there is an issue with repeat belligerent offenders. I think that you tend to find that the nature of blue badges is far less ambiguity than the issues that we would have perhaps with people overstaying a three-hour time limit in one of our car parks. Somebody could overstay in one of our car parks for perfectly legitimate reasons and you would have a conversation with the customer about that and be able to fix that. There is less ambiguity with the blue badge and, therefore, the conversation with the customer is... Can I just clarify, convener, that if someone parks in a disabled bay, they are sent a notice by one of your operators at the moment that are enforcing those situations for you in your car parks and they simply bin that because they happen to know that it's contract law and they happen to know that it's highly unlikely that you're going to pursue them all the way to court? Would it not be better for you and your customers, particularly your disabled customers, to consider the enforcement as provided by the councils and by the law rather than by contract law? Historically, I think that that may have been the case. As we move forward, I'm quite happy to talk you through or show you the hand-held equipment that colleagues have, but the evidence that that creates is such that if somebody is a significant repeat offender, there is a far greater volume of evidence that would mean that we would be in a position to pursue that procession. I'm beginning to pursue that, but how would you pursue it? Would you then take that case to court under contract law? Is that what you would do? I think that, increasingly, we would have the evidence to do that. I'm not a lawyer, so I couldn't specifically go into the detail of how we would pursue that prosecution, but what we can do with the technology is capture in a far better way now people who are abusing disabled base. Historically, the warden would walk up, issue a ticket and move on to the next job. What we've got now is the power to give our colleagues enforcement, but secondly, to build that body of evidence so that we can challenge repeat offenders in a far more targeted way. I'm sorry to keep on about that, but the bottom line is that, as you talked about your customers, you've then got a customer there who may say to your colleagues, well, I'm parking here because I'm going into your store to spend £100 on my weekly shopping, and if you don't like that then I'm going to take my customer elsewhere, and that may put your colleagues in a difficult position. However, if you were to actually go down the line of local authority enforcing for you then it would take that away from you, and it would then also take it away from the fact that you are only relying on contract law, and unless you have a barrier, as Mr Bones has in some of his car parks, then you would find it rather difficult to prove that the person who saw it was a disabled space, et cetera, when they came into your car park, and that's the problem that you would have, and that is the reason why I think that you may, well, it's up to yourself, of course, but I suppose we would be asking you whether or not you would be considering the enforcement option through local authorities, through this legislation, instead of relying on what is basically contract law and you having to prove that the person broke some kind of contract with you? First, I think that there would be no ambiguity for any of our customers about whether or not they were parking in a disabled bay. They're clearly marked, clear signage, and it's quite obvious that that's the purpose of that bay. The second point that I'd make is that I think that our colleagues are perfectly well equipped to have that difficult conversation with the customers, because in exactly the same way as I think that our customers are appalled by people who are parking in a disabled base when they shouldn't, our colleagues are absolutely appalled by that antisocial behaviour, because they know themselves that it's potentially depriving a disabled motorist who needs that space, to access that space. This is a customer service-led initiative within Tesco. It's not a commercial thing. It's about offering our customers great service, because that's the point of differentiation for us. We're not going to bring you back in something that's more focused on the supermarket sector at the moment. I think that it's really worth a line of questioning that Lane Smith's exploring. Do you have any information, Mr Mark O'Roy, on how many fines go unpaid? On disabled bays, it's reasonably low compared to when it overstays. There's a far broader spectrum of reasons why somebody might overstay, as I say, with blue badge. It's less ambiguous. You've either got a blue badge or you don't. Information, in general terms, exists that we're quite helpful for the committee to get that. That's not targeting Tesco. You just happened to be the supermarket chain, and we're kind of tearing up and giving evidence to the committee today. We thank you for that. I can understand why a large commercial retailer would want to keep a degree of control over the customer service that it provides to its patrons using its car parks and what those standards look like. I get all that, but if there's a way of squaring the circle, which is via a new form of TRO or whatever, without losing flexibility that supermarkets and others could have, if those could be enforced under the law of the land and partnership with local authorities to give at least a minimum standard, that would surely be a good thing. Is that something that you think Tesco will be willing to explore with local authorities across Scotland? Or indeed, explore in terms of the legislation that has passed to see if it has to be tweaked or amended to give the assurances that perhaps your sector needs, Mr McElroy, to sign up for some of this stuff? In terms of what happens next, the opportunity is to look at it through the prism of what Tesco does in enforcement and what Tesco does in customer service. In terms of what happens next, our perspective is very much about the public awareness of the unacceptability of parking in a bay that is identified as being for a disabled motorist when you're not a disabled motorist. It's about changing the behaviours of those who are inclined for whatever reason to park in a disabled bay. As a business, we will continue to enforce them, absolutely, to the best of our ability, and we are undergone a step change in how we do that. However, if the committee is thinking, where do we go next in terms of the legislation, my steer would be to let's reinforce the social unacceptable of parking in a disabled bay because that reinforces the enforcement mechanisms that we've got as a business and the actions that we're taking in order to ensure that people don't park in a disabled bay when it's in the untimely. I suppose that the committee is trying to tease out not just the social unacceptable aspect of it but the consistency of approach across the country in the public highway and on private land of which supermarkets and car park operators are significant players. One way of doing that could ultimately be compulsion in relation to this, and that was shied away with. It's about every couple of years asking local authorities to approach private sites to see if a TRO can be developed to bring that level of enforcement consistency in. I suppose that what I'm saying, Mr Mackerel, is my last punt at this. Rather than saying, Tesco, Asda, Morrison or whoever, rather than saying, we've got corporate policies and we'll tell you how wonderful it is and it might or might not be, I have no idea, there has to be a consistency and minimum standard and equity for those with blue badges right across the country and that surely has to be in partnership between local authorities and the private sector. It's clearly not happening just now, that's not to say there might not be good practice out there and Mr Mackerel or your hinting that that might look like, Mr Bones is doing likewise, but would you be open minded to working in partnership with local authorities to see how we can improve the legislation to have a more formal partnership rather than finding supermarkets or private car park operators who are the cowboys in the sector, don't quite mean that way, who are the poorly performing ones and have to bring in a degree of compulsion to everyone to get that consistency, surely new models of working and Tesco would like to think we'd open that and the NCP would open to that. Any comments on that before I bring in Mr Wightman, who knows to follow up on some of this as well? Yeah, I mean, you know, we, as I say, we work with local government across a huge number of areas that we operate. Whether that would be to reach a kind of formal agreement or informal agreement, we would always be happy to have that conversation to make sure that we are working in partnership with local government. Our ambition would always be to set the standard for customer service, so as long as nothing happened that stopped our ability to be setting the standard, we would always be happy to have that conversation. Okay, I think I almost got there, Mr McElrude, but not quite. I think we're trying to set the standard for disability rights in Scotland and if Tesco and others want to go beyond that, then fantastic, but there has to be a partnership with local authorities to make sure that we're setting the standard for disability rights in Scotland in the first instance, separate from corporate and commercial concerns. So I'm glad that we got there a little bit about how we can take some of that forward. Mr Bones? Absolutely happy to have the discussion. I mean, as I said, we already work with Disabled Motor in the UK, we already work with People's Park in the DPA, we have local authority joint ventures and TROs already existing in some of ours any more. I mean, we're having discussions now with local authorities about whole parking joint ventures, so this is just another discussion, so I'm absolutely happy to have those discussions. It's really helpful. Mr Whiteman, do you want to follow up on something? Yes, I just want to follow up briefly on my previous questions, and that's just for the record, given that Glasgow and Edinburgh have both confirmed to us that no TROs have been issued since this act came into force, and you've hinted that you've had no discussions with them on this. Could you supply in writing to the committee any record of correspondence you've had with local authorities about the duties under this act that would help us in scrutinising? Well, we could give you a response of nil response, but I mean, I've spoken to over the last week, all of the last three senior managers who've run the Scottish portfolio, and apart from one telephone conversation, I think it was in 2009 that someone said, we had a conversation to arrange a meeting, but it never happened. That's all. So, we can respond so we haven't had that contact. That would be helpful, because on the face of it, there's some contradiction between what local authorities are saying they've done under the act in terms of trying to secure enforceable bays, and you're basically saying you've heard nothing. So, it would help if you could. Mr McElroy, likewise? I can try and bring some clarity to that for you. The caveat simply being the volume of sites that we operate means that I wouldn't be able to capture local conversations that have taken place. So, from the centre, I can try and capture that for you. We're looking specifically at any approaches that you've had from local authorities about their power as under the act. No other approaches on anything else. Yeah, and where that's happened within our head office, I'll be able to capture that for you. Where that's happened in a very localised environment, Fort William, to pick a store out of Thinair, that's a bit trickier to capture some of that, but we will do what we can. I think the challenge with this, it looks historically, is it's the point of contact. You can imagine, today's forum was pointed at, would pick this straight up and said, absolutely happy to come, and it proves if it's going to the right place. If you're trying to, I've probably just told you this, contact lots and lots of local people. Do they know what to do with it? Are they aware of it? Does it go anywhere? So, I think, actually, from a national level, I think it's easy to actually point these in proper conversations. Okay, Elaine Smith at the front. Thank you, convener. I just wanted to ask Mr McElroy, is it difficult, Mr McElroy, to email all your store managers and inquire as to whether or not the local authority has approached them under the duties that they have under this act? Is that something that you wouldn't be able to do? I could do it, but whether they would have captured any conversations that may have taken over the last couple of years in writing or something like that. The process of asking colleagues is straightforward. It's capturing the data in a sense that it's meaningful for the committee, I think, is where I would say a bit of a challenge. I think that it would be great if you could perhaps try, because if your stores received email approaches or letters from local councils asking them, it would be of interest to us to try and find that out. The people who would know whether they had been approached by the local authority would presumably be your store managers. I'm conscious that you're the only store here that has been asking that sort of, but it may be something that we want to ask anyway of other supermarket operators. I'm not just putting you on the spot, but you have to be here with us today. I think that it's something that we'd be interested in trying to find out. I'm more than happy to try and harness what information and data I can get for you. I'm just thinking through how our colleagues in store may or may not have captured that, particularly if it was a less formalised conversation or a less formal agreement that was the output of that. That will be slightly trickier, but I will commit to doing what I can to help. Okay, we're shortly when we finish this evidence session and I'll remember what to come in. I would like clarification. Yes, of course. Thanks very much, convener, just if we're shortly finishing. Mr Bones, I think I'm right in saying that you mentioned at the beginning that people can make an independent appeal to Poplar, but my understanding was that Poplar only operated in England and Wales. Am I right at it? Yes, but they can also, so that was an example of how they can appeal, but they can also appeal to us, so we take any common-sense approach that will be, they will write to us in the first instance if it's in your will, we'll refer them to Poplar, but we'll always make a case-by-case decision. But I can just clarify that if you're in Scotland then you cannot appeal to Poplar because Poplar doesn't cover Scotland. Thank you, I wanted to just clarify that for the record. Okay, and just before we close today's evidence session, I think it's reasonable to say that it's a two-way process this whole thing. Mr Bones, you've come in as large-scale representatives within the private sector to take shape. Your experiences are in trying to improve disability access in towns and cities and in the services that you provide across Scotland. Local authorities will be in next week to see what they're doing. I'm conscious that that exchange we had with Mr McElroy in relation to store managers wouldn't have captured that information. Perhaps the guidance has been local authority should be making direct representations to the corporate head of an organisation rather than a store manager who has a thousand and one other things to do and that should link in with what the corporate policy is for companies. It's a two-way process. We have to get the guidance right, we have to get the legislation right and we have to make sure that there's an acceptable minimum standard there, even if companies are asserting and can demonstrate good practice in the area. We have to ensure consistency and quality of service for everyone who is disabled in Scotland, whether it's the public highway or otherwise. Thank you very much for coming along. With a few minutes left, if there's anything else that you want to put on the record, you've got that opportunity now, if you want to take that opportunity. I've briefly touched on that. To my mind, the next phase of that is reinforcing to the general public that parking in a disabled bay when you're not entitled to is unacceptable and businesses, councils, whomever, are proactively taking action to deal with that. However, we do need some kind of public information campaign, some kind of targeted campaign, whether that's one for ministers, whether that's one for Police Scotland, who I think you said you're seeing next week. If there was some kind of campaign along those lines in and around reinforcing those messages of socially unacceptable parking, then we would absolutely be in a position to get behind that. That's very helpful, Mr Lawrence. I think just for this, I think we're quite proud of what we've done so far, with what we've put into disabled parking, but as I've said, any conversations with local authorities, as we're already doing in other parts of the country, absolutely happy to have. At the end of the day, this is never about revenue generation, this is about doing the right thing with disabled parking, so anything can make it better, happy to have those conversations. I thank both of you, gentlemen, again for your time here this morning. That ends agenda item 2, and we now move into private session. I suspend. Thanks.