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NATIONAL PARKS (SCOTLAND) ACT 2000

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INTRODUCTION

1. These Explanatory Notes have been prepared by the Scottish Executive in order to assist the reader of the National Parks (Scotland) Act 2000, (asp10) which received Royal Assent on 14 August 2000. They do not form part of the Act and have not been endorsed by the Parliament.

2. The Notes should be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or schedule, or a part of a section or schedule, does not seem to require any explanation or comment, none is given.

3. The ACT

Section 1: The National Park Aims

4. This section sets out the four aims of National Parks.

Section 2: National Park proposals

5. This section sets out the criteria for considering an area for National Park status.

6. Subsection (1) allows the Scottish Ministers to propose an area for designation as a National Park, with a corresponding National Park authority to exercise certain functions if it appears to them that all the conditions in subsection (2) are met. Such a proposal is referred to in the Act as a "National Park proposal" (subsection (4)).

7. Subsection (3) requires a proposal made by Ministers under subsection (1) to be in writing, specifying the general area of the Park and the functions which the National Park authority should exercise. The area can only be in general terms at this stage, since the whole purpose of the process set out in the following sections is to provide for a process of consultation to inform the decision of the Scottish Ministers on matters such as park boundaries.

Section 3: Reports on National Park proposals

8. This section sets out the process through which the Scottish Ministers may obtain from a public body with the relevant expertise a report on a National Park proposal, prepared following consultation. The Scottish Ministers must publish that report.

9. Subsection (2) sets out the matters which the report must cover. These include at paragraph (b) the specific question whether or not the area set out in the proposal should be designated as a National Park. Paragraph (e) allows the Scottish Ministers to specify any other particular matters which the report should cover. These might include, for example, the number of members a particular National Park authority should have.

10. Subsection (3) requires the Scottish Ministers to send a copy of the proposal to the person who is to provide the report.

11. Subsection (4) covers the situation in which more than one body/person ("the reporter") is required to report (for example, to ensure that certain areas of expertise are adequately addressed). This subsection therefore makes clear that where a requirement is addressed to more than one body/person, it can impose different requirements on each, and can modify the requirements set out in subsection (5) regarding publication and consultation, to avoid having more than one set of consultation and publicity arrangements. It provides though that in these circumstances the requirement will be for one reporting document.

12. Subsection (5) sets out the duties on a reporter with respect to publicity and consultation. The reporter must send a copy of the proposal and the Scottish Ministers' requirement to every local authority which has at least part of its area covered by the proposal; determine the period (which must be at least 12 weeks) for which the proposal and requirement are to be made available for public inspection under subsection (7) and notify every such local authority of that period. The reporter must publicise the proposal as it sees fit; and must consult every local authority and community council, people representative of those living and working in the area covered by the proposal, and anyone else it sees fit, on the proposal.

13. Subsection (6) allows the Scottish Ministers to direct the reporter on the conduct of the consultation.

14. Subsection (7) requires local authorities which receive a copy of the proposal and the requirement under subsection (5) to make these available for public inspection over a period specified by the reporter.

15. Subsection (8) requires the reporter, when preparing a report, to take account of a number of factors: whether the matters in section 2(2) are satisfied in relation to the proposed area; the aims of National Parks (in section 1); views expressed during the consultation period; and anything else the reporter considers relevant (such as administrative boundaries).

16. Subsection (9) requires the report to include the views of the reporter on the matters specified in the requirement by the Scottish Ministers (i.e. those set out in subsection (2)), but also allows the reporter to include consideration of other matters thought to be relevant. This means that while the reporter has some discretion in deciding what issues have a bearing on the question of whether the area should be designated as a National Park, advice must nevertheless be given on the matters set out under subsection (2) as required by the Scottish Ministers.

17. Subsection (10) requires the Scottish Ministers to publish the report and lay it before the Parliament.

Section 4: Statements by the Scottish Ministers

18. This section sets out the process which the Scottish Ministers must follow in cases where they wish to consider an area for National Park designation, but do not require a report from another body. The process is similar to that set out in section 3, and requires Ministers to publish a statement following public consultation on the proposal.

19. Under subsection (1), if the Scottish Ministers do not want a report prepared under section 3, they must undertake consultations as set out under subsection (3) and prepare and publish and lay before the Parliament a statement on the National Park proposal dealing with specified issues. Subsection (2) sets out those issues, which are the same as in section 3(2).

20. Subsection (3) requires that before publishing their statement the Scottish Ministers must send a copy of the proposal to every local authority which has at least part of its area covered by the proposal, determine the period (which must be at least 12 weeks) for which the proposal and requirement are to be made available for public inspection under subsection (4) and notify every such local authority of that period. The Scottish Ministers must publicise the proposal as they see fit; and consult every local authority and community council, people representative of those living and working in the area covered by the proposal, and anyone else they see fit, on the proposal.

21. Under subsection (4) local authorities which receive a copy of the proposal must make it available for public inspection over a period specified by the Scottish Ministers.

22. Subsection (5) requires Ministers, in preparing a statement under subsection (1), to take account of a number of factors: whether the matters in subsection (2) are satisfied in relation to the proposed area; the aims of National Parks (in section 1)); views expressed during the consultation period; and anything else they consider relevant (such as administrative boundaries).

Section 5: Local inquiries

23. After publication of a report or a statement, the Scottish Ministers may, if they think fit, provide for a local inquiry to be held. The rules governing such an inquiry would be the same as those governing inquiries or hearings under the Local Government (Scotland) Act 1973.

Section 6: Making of designation orders

24. This section and section 7 set out how a National Park is set up through a designation order.

25. Subsection (1) provides that, following a report or statement under section 3 or 4, the Scottish Ministers can decide to make a designation order setting up a National Park either in terms of the original proposal or in a modified form.

26. Under subsection (2), in making their decision they must take account of the report or statement, and of any local inquiry held.

27. However, subsection (3) provides that before laying a draft of a designation order before Parliament for consideration under section 34(5), Scottish Ministers must consult as follows: send a copy of the proposed draft order to every local authority with all or part of its area within the proposed National Park, determine the period (which must be at least 12 weeks) for which it is to be made available for public inspection, publicise it in a manner it they think fit; lay it before the Parliament and consult every such local authority, every community council wholly or partly in the area, such persons as appear to them to be representative of the interests of those who live, work or carry on business in the area, and other such persons as they think fit.

28. Subsection (4) requires local authorities receiving a copy of the proposed draft order under subsection (3)(a) to make it available for public inspection for the period stated under subsection (3)(b).

29. Subsection (5) requires the Scottish Ministers to take into account views and comments received during the consultation. Subsection (6) requires the Scottish Ministers when laying a draft designation order before the Parliament for consideration under section 34(5) to also lay before the Parliament a statement which details the views and comments received during the consultation under subsection (3) and also the changes (if any) which were made in light of those.

Section 7: Designation orders: further provisions

30. This section sets out what a designation order must contain.

31. Under subsection (1) it must designate the area of the National Park; it must provide for the establishment of a National Park authority; and it must specify the total number of members of the authority and, for the members to be nominated by local authorities, the names of the authorities and how many members each is to nominate. It must also specify the matters mentioned in paragraph 3(2) and (5) of schedule 1 (the number of elected members, the number of local members and which authorities are to nominate local members).

32. Subsections (2) and (3) enable the order to specify the area of the National Park by reference to a map laid before the Scottish Parliament.

33. Subsection (4) requires the designation order to specify the date on which the functions conferred on the National Park are exercisable. Not all functions will be exercisable from the same date.

34. Subsection (5) requires the Scottish Ministers to send a copy of a designation order and deposited map to the local authorities whose areas are at least partly within the designated area. Local authorities must make these available for public inspection.

Section 8: National Park authorities: constitution etc.

35. This section introduces the provisions about the constitution of National Park authorities as set out in schedule 1.

Section 9: General purpose and functions of National Park authorities

36. Subsection (1) sets out the general purpose of a National Park authority. That purpose is to ensure that the aims set out in section 1 are achieved in a way which is mutually supportive, rather than looking at each of the aims separately and in isolation.

37. Subsection (2) summarises the various powers of a National Park authority and where these are set out. In particular, general powers are in schedule 2 and specific functions in schedule 3. Planning functions may be conferred by virtue of section 10. There may be additional functions conferred in the relevant designation order.

38. Subsection (3) sets out a general enabling power so that a National Park authority may do anything incidental to its main functions which it considers will help to accomplish its general purpose set out in subsection (1) or carry out its functions.

39. Subsections (4) and (5) make clear that this power does not allow any activity which is specifically restricted by the Act, nor does it include a separate power to raise money (without excluding an activity simply because it has financial consequences or involves acquiring or disposing of property).

40. Subsection (6) sets out the guiding principle for a National Park authority in exercising its functions: to act with a view to accomplishing its general purpose set out at section 9(1) - in other words, to ensure that the aims set out in section 1 are collectively achieved in relation to the National Park in a co-ordinated way. However, recognising that there will be occasions when even having taken a co-ordinated approach there remains conflict between the aim at section 1(a) and the others, greater weight must be given to (a), the conservation of natural and cultural heritage. This acknowledges that the high quality of the natural and cultural heritage is one of the main reasons for designating an area as a National Park.

Section 10: Planning functions

41. This section enables the arrangements for the exercise of the town and country planning function (under the Town and Country Planning (Scotland) Act 1997 and related planning Acts) in a National Park to be specified in the designation order setting up that National Park. These arrangements may take the form of—

• the National Park authority being the planning authority for the area of the Park,

• the National Park authority being the planning authority only in respect of development plan preparation, or

• the National Park authority having such functions in respect of planning as the designation order specifies: this option could include, for example, the possibility of the planning function remaining with local authorities in the area, with the National Park authority being given statutory powers as a consultee.

Section 11: National Park Plans

42. This section places a duty on a National Park authority, within a time limit set by the Scottish Ministers, to prepare and submit a plan (a National Park Plan) which sets out its policy for the management of the National Park and the co-ordination of activities of public bodies and office-holders so far as affecting the Park. A National Park authority in doing so must be guided by its general purpose in section 9(1).

Section 12: National Park Plans: procedure

43. Under subsections (1) and (2), once it has prepared a draft National Park Plan, the National Park authority must send a copy to the local authorities with part of their area in the National Park, who must make it available to the public. The National Park authority must also publicise the draft Plan and consult local authorities, community councils, people representative of those living and working in the Park, and anyone else it sees fit. It must determine the time period (at least 12 weeks) for consultation and for which the draft Plan is to be made available for public inspection.

44. Under subsection (3) the National Park authority must take account of any comments which it receives in this period. Following the consultation, and any resulting amendments, the plan must be submitted to the Scottish Ministers (subsection (4)) who may approve it with or without modification or reject it. They must (under subsection (6)) give reasons for modifying or rejecting the Plan. Subsection (5) provides that where the Scottish Ministers are minded to approve a Plan with modifications, they must send a copy of the intended modifications to the National Park authority, and take account of its comments.

45. Where the plan is approved (subsection (7)), the National Park authority must adopt the Plan, send a copy to the Scottish Ministers and relevant local authorities, make a copy available for inspection, and publicise its existence.

46. If a National Park Plan is rejected (subsection (8)) by the Scottish Ministers, the National Park authority must submit a revised Plan for approval.

Section 13 National Parks Plans: review

47. This section requires a National Park authority to review its National Park Plan, from time to time, and if it thinks fit prepare and submit a revised National Park Plan to the Scottish Ministers. This review is to take place within 5 years (or less as the Scottish Ministers may direct) from the Plan's adoption, or as the case may be, the previous review. Section 12 applies in relation to an amended Plan as it applies to a National Park Plan prepared under section 11.

Section 14: Duty to have regard to National Park Plans

48. This section requires public bodies, including the Scottish Ministers and the National Park authority itself, to have regard to the National Park Plan when exercising their functions so far as affecting the National Park.

Section 15: Management agreements

49. This section enables a National Park authority to enter into agreements with a person with an interest in land, in order to ensure that its aims are met.

50. Under subsection (2) the agreement can involve conditions, including the making of payments to the person concerned. Subsections (3) and (4) make technical provisions about interests in land which entitle a person to enter into such agreements with the National Park authority.

51. Subsection (5) provides for the registration of such an agreement in the Land Register, subsections (6) and (7) for the enforcement of the agreement, and subsections (8) and (9) for the termination of the agreement by agreement of both parties.

Section 16: Directions and guidance

52. Subsections (1) and (2) provide for the Scottish Ministers to issue directions to a National Park authority on the exercise of its functions, having first consulted the authority. The National Park authority must comply with such directions.

53. Subsections (3), (4) and (5) provide for the Scottish Ministers to issue guidance to one or more National Park authorities about how they exercise their functions, also after consulting the National Park authorities concerned. The authorities must have regard to any guidance in exercising its functions. Guidance tends to be more about how to go about various matters than about requiring a particular course to be followed (as under directions).

54. Subsections (6) to (9) require proposed guidance to be laid in draft before the Scottish Parliament for 40 days before it is issued, but if during that time the Parliament so decides, the guidance must not be issued. Any guidance which is issued must be published.

Section 17: Agency arrangements and joint operations

55. Subsection (1) provides for a National Park authority to arrange for its functions to be carried out by a local authority on its behalf, or by another National Park authority.

56. Subsection (2) provides for the converse, for local authorities to be able to arrange for any of their functions (insofar as they are exercisable in relation to a National Park) to be carried out by a National Park authority.

57. Under subsection (3) provides that "function" in this context does not include a function of making subordinate legislation, or any function conferred by the Act. Under subsection (4) two National Park authorities may arrange to carry out functions jointly, and under subsection (5) these arrangements may include establishing a joint committee or for an officer carrying out the functions.

58. Under subsections (6) to (8) persons who are not members of any of the authorities making the arrangements may be members of the committee but a majority of the members of the committee must be members of those authorities. Those authorities must pay to a member of the joint committee such remuneration and allowances (if any) as the Scottish Ministers may determine. The joint committee must comply with directions given to it by the authorities making the arrangements.

59. Subsection (9) provides that such arrangements do not affect responsibility for exercising the functions in question.

Section 18: Delegation of functions by the Scottish Ministers

60. This section allows the Scottish Ministers to make arrangements for a National Park to exercise functions on their behalf, so far as these are exercisable in relation to a National Park. However (subsection (2)) the arrangement does not affect the responsibility of the Scottish Ministers for the functions, and subsection (3) excludes making, confirming or approving subordinate legislation, or any other function conferred by the Act, from the functions of the Scottish Ministers which can be delegated under this section.

Section 19: Use of resources

61. This section places a duty on National Park authorities to use their resources economically, efficiently and effectively.

Section 20: Advisory groups

62. National Park authorities are required by this section to put in place an advisory group or groups to advise it on its functions. The membership of the group is to be decided by the authority, who can also decide what allowances or expenses to pay members of the group. This section provides a mechanism for the views of the wide range of interest and community groups, and individuals, with a legitimate interest in the running of the National Park, to feed into the National Park authority. No constraints are placed on the size or membership of advisory groups.

Section 21: General financial duties

63. Subsection (1) enables the Scottish Ministers to determine the financial duties of a National Park authority, after consultation with the authority concerned. They may decide on different arrangements for different National Park authorities. They must inform a National Park authority of such a determination, and subsection (2) sets out what this may contain. Subsection (3) enables the Scottish Ministers to require an authority to pay them an amount if this is provided for in the determination; subsection (4) enables them to require payment of a surplus amount of revenue or capital.

Section 22: Grants and loans by the Scottish Ministers

64. This section provides for the Scottish Ministers to pay grant or loan money to a National Park authority, with a loan repayable under terms they determine.

Section 23: Borrowing powers

65. This section sets out the arrangements under which a National Park authority may borrow money. Under subsection (1) an authority may borrow money from the Scottish Ministers, or from someone else with the Scottish Ministers' consent (which may be granted with conditions). Subsections (3) and (4) require that the amounts borrowed in a year, net of any repayments (other than interest) must not be greater than the amount specified in a Budget Act.

66. Subsection (5) makes clear that a National Park authority may borrow money only under the provisions set out in this section.

Section 24: Guarantees

67. This section enables the Scottish Ministers to provide a guarantee, with conditions, to a National Park authority in respect of its borrowing from another person. If they do so, the Scottish Ministers must provide a statement of the guarantee to the Scottish Parliament (subsection (2)). If they pay out any money to fulfil such a guarantee, they must also inform the Parliament (subsection (3)), and the National Park authority must repay the amount and interest as directed (subsection (4)).

Section 25: Accounts

68. This section places a duty on a National Park authority to keep proper accounts and prepare an account of its expenditure at the end of each financial year in accordance with directions from the Scottish Ministers who, having received a copy from the authority, must send the account to the Auditor General for Scotland for auditing.

Section 26: Information and annual reports

69. This section sets out a duty on National Park authorities to report on their activities each year. They must under subsection (1) provide information on their activities as required by the Scottish Ministers, including providing this to a person authorised by the Scottish Ministers (subsection (2)). Subsection (3) requires a National Park authority to send a report on its year's activities to the Scottish Ministers as soon as practicable after the end of the year, the Scottish Ministers being required to lay a copy of the report before the Scottish Parliament and publish it (subsection (5)). The report must set out any directions received under section 16 which relate to the year in question (subsection (4)).

Section 27: Records

70. This section sets out how a National Park authority must deal with its records.

71. Under subsection (2) it must make arrangements in consultation with the Keeper of the Records of Scotland for the preservation and management of its records. Under subsection (3) the authority must consult the Keeper before making substantial changes to the arrangements. Under subsection (4) it may dispose of records which are not worth preserving. Under subsection (5) it must ensure that the Keeper and members of the public have access to their records. A reasonable fee can be charged for providing extracts or copies of records. Subsection (6) makes clear that these provisions are subject to other enactments about particular kinds of records.

Section 28: Inquiries and other hearings

72. This section enables the Scottish Ministers to hold an inquiry or hearing into National Park authority functions, or the functions of the Scottish Ministers in relation to a National Park authority. The rules governing such inquiries or hearings would be the same as those governing inquiries or hearings under the Local Government (Scotland) Act 1973.

Section 29: Transfer of staff, property and liabilities

73. This section introduces the provisions in schedule 4 in relation to transfer of staff, property and liabilities in connection with the setting up of a National Park authority or the exercise of its functions.

Section 30: Modification and revocation of designation orders

74. Subsection (1) allows the Scottish Ministers to make an order modifying or revoking an existing designation order. Subsection (2) provides if the Scottish Ministers propose to revoke a designation order, or if the modifications are of a certain type, then the procedures set out in the following subsections (2) and (3) must be followed. Those modifications are changes to:

• the area of the National Park;

• the functions of the National Park authority set out in the designation order and conferred under sections 9(2)(d) or 10;

• the local authority membership of a National Park authority (under section 7(1)(c) or (d)).

75. Subsection (3) requires that before making an order, the Scottish Ministers must set out in writing how they wish to modify an existing designation order, or that they wish to revoke the designation order, and in either case give reasons. The process which applies to the making of such a modification/revocation order is that set out in sections 3 to 7 of the Act, appropriately modified (subsection (4)). This means that generally the same requirements will apply for publication and consultation as for the making of a designation order. Subsection (5) provides that where the modifications are not of the type listed in subsection (2), sections 2 to 7 of the Act do not apply in relation to a modification order. The effect of subsections (2) to (5) is to allow for a minor changes to a designation order to be handled in a proportionate manner, without the need for the full process which applies when making a designation order. In both cases, however, the orders are subject to the affirmative resolution procedure (under section 34(5)).