PLANNING (AMENDMENT) BILL

EXPLANATORY AND FINANCIAL MEMORANDUM

INTRODUCTION

1. This Explanatory and Financial Memorandum has been prepared by the Department of the Environment (the Department) in order to assist the reader of the Bill and to help inform debate on it. It does not form part of the Bill and has not been endorsed by the Assembly.
2. The Memorandum needs to be read in conjunction with the Bill. It does not give, and is not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.

BACKGROUND AND POLICY OBJECTIVES

3. Prior to devolution, the Department published a consultation paper entitled "Proposals for Amendments to Planning Legislation in Northern Ireland". The paper proposed introducing legislation to strengthen and enhance the Department's existing planning enforcement powers and to give primacy to development plans in the determination of planning applications. Since devolution, the Department has carefully reviewed and considered the issues involved and remains of the view that such legislative change is still appropriate.
4. he existing legislation is contained in the Planning (Northern Ireland) Order 1972, the Planning (Northern Ireland) Order 1991 and the Caravans Act (Northern Ireland) 1963.
5. The proposed Bill will:

• simplify, streamline and strengthen the Department's existing enforcement powers and introduce some new enforcement powers. These include:-
• planning contravention notices;
• breach of condition notices; and
• an express power to apply to the court for an injunction to prevent a threatened breach of planning control.

These enforcement powers, modified to the extent that is described in the commentary on clauses section below, will extend to tree preservation orders, listed buildings, buildings in conservation areas and hazardous substances. New measures to afford greater protection to trees are also included;

• improve control over development by:

• introducing a new procedure for modifying/discharging planningagreement, and introducing a right of appeal against the refusal of an application to modify/discharge an agreement;
• introducing building preservation notices to enable the Department to respond quickly to protect buildings at risk;
• funding, in certain circumstances, for bodies, which may include building preservation trusts, to enable the acquisition of buildings considered to be at risk;
• broadening the definition of "advertisement" to ensure that modern forms of outdoor advertising are subject to advertisement control;
• introducing a regulation making power to allow the scope of regulations requiring environmental assessment under EC Directive Reference 85/337/EEC to go beyond the EC minimum requirements;
• empowering the Department, in certain circumstances, to decline to determine applications if, within the preceding 2 years, a similar proposal had been dismissed on appeal by the Planning Appeals Commission;
• empowering the Planning Appeals Commission to dismiss an appeal if it appears that the appellant is causing undue delay;

• giving prime importance to development plans in the determination of planning applications; and,
• providing the Planning Appeals Commission with greater operational flexibility.

CONSULTATION

6. In March 1999, the Department issued a consultation paper entitled "Proposals for Amendments to Planning Legislation in Northern Ireland". The paper was given wide circulation to district councils, environmental groups, professional bodies, government departments and agencies, academics, residents' groups, businesses and others.
7. In accordance with the requirement for consultation with the Northern Ireland Human Rights Commission, Civic Forum and Equality Commission, which did not exist when the 1999 public consultation first took place, these consultees were consulted on the proposals and no comments were received.
8. On a number of occasions throughout 2001/02, officials appeared before the Environment Committee to explain the purpose and content of the proposed Bill. While the Committee was broadly content with the measures contained in the Bill, it raised concerns about the absence of a specific provision to make it an offence for anyone to commence development without planning permission, or for introducing third party rights of appeal. The Department explained that it viewed both issues as being fundamental to the planning process in Northern Ireland, and any change would represent a radical departure from existing planning law. The Department further explained that it considered that both issues required further research, policy development, and possibly, public consultation and, in this context, was of the opinion that neither matter can be taken forward within the current Planning (Amendment) Bill.

OPTIONS CONSIDERED

9. The proposals were drawn up prior to devolution in response to a request from the House of Commons Northern Ireland Affairs Committee that the Department replicate the new provisions introduced in GB by the Planning and Compensation Act 1991.
10. In addition to largely meeting the requirements of the Northern Ireland Affairs Committee, the Department also took the opportunity to look at other provisions to strengthen and improve the planning system in Northern Ireland. These include the introduction of building preservation notices, a power to fund bodies, including building preservation trusts, and reforms to the way in which the Planning Appeals Commission operates.

OVERVIEW

11. The Bill has 32 clauses and 2 Schedules.

COMMENTARY ON CLAUSES

New enforcement powers

Clause 1 - Planning contravention notices

This clause provides for the issue of a planning contravention notice, the purpose of which is to strengthen the Department's power to obtain information prior to taking enforcement action, to encourage dialogue with any persons thought to be in breach of planning control and to secure their co-operation in taking corrective action. Failure to comply with such a notice within 21 days of its service would be an offence, liable on summary conviction, to a fine not exceeding level 3 on the standard scale (currently £1,000). In addition any person who makes a false or misleading statement in respect of a notice will be liable on summary conviction to a fine not exceeding level 5 on the standard scale (currently £5,000). Failure to comply with a notice could also affect any future entitlement to compensation payable in connection with stop notices.

Clause 2 - Enforcement of conditions

This clause provides for the issue of a breach of condition notice for breaches of conditions attached to a planning permission. It may be served if there is clear evidence that a planning condition has not been complied with. Non-compliance with a breach of condition notice shall be an offence liable on summary conviction to a fine not exceeding level 3 on the standard scale (currently £1,000).

Clause 3 - Injunctions

This clause will give the Department an express power to apply to the Courts for an injunction to prevent any actual or threatened breach of planning control. This power will also apply in relation to unauthorised works to a listed building, breaches of a tree preservation order and certain acts in respect of trees in a conservation area; and, any actual or apprehended breach of a hazardous substances contravention order. The intention is to integrate injunctions into the range of enforcement powers available to the Department so that they may be used, whether or not other enforcement powers have been, or are intended to be, used. Rules of court may provide for an injunction to be granted against a person whose identity is unknown.

Other changes relating to enforcement

Clause 4 - Time limits

This clause simplifies the rules regarding the time period within which action may be taken in respect of breaches of planning control, by establishing two different limitation periods for enforcement action: -

• The four-year rule: four years is the time allowed to the Department to take enforcement action where the breach comprises either operational development (the carrying out of unauthorised building, engineering, mining or other operations), or the change of use to use as a single dwelling house.
• The ten-year rule: this is the time allowed for all other breaches of planning control, and represents a significant change from the current position. Under the Planning (NI) Order 1991, an unauthorised change of use (other than to use as a single dwelling house) was immune from enforcement action only if it had been undertaken before 26 August 1974. Upon coming into operation, immunity from enforcement action will automatically be conferred on all breaches of planning control that occurred between 26 August 1974 and the date ten years prior to the Act becoming law, thereafter immunity will accrue on a rolling basis.

Clause 5 - Enforcement notices

It is intended that this clause will reduce the legal complexity of the provisions that apply to the drafting, issue and service of enforcement notices, by minimising the possibility of some minor drafting error, legal or technical deficiency, resulting in a notice being quashed. The notice will still have to be sufficiently clear to enable any recipient to understand exactly what unauthorised use/work is alleged and what he/she is required to do to remedy this. It provides that an enforcement notice may be served on the current owner or occupier of the land to which the notice relates and on any other person with an estate in the land. The provisions will provide the Department with flexibility to require only partial remedy of a breach ofplanning control where, at the timeof enforcement, a total remedy is notconsidered necessary. This provision will also allow for the withdrawal or variation of an enforcement notice, without prejudice to the Department's power to issue a further notice.

Clause 6 - Appeal against enforcement notice

This clause specifies revised grounds on which an appeal against an enforcement notice can be made and the procedures for making a valid appeal. It also provides that if an appeal against an enforcement notice includes a ground of appeal that planning permission ought to be granted for the development to which the notice relates or, as the case may be, that a condition or limitation alleged in the enforcement notice not to have been complied with ought to be discharged, it shall constitute a deemed planning application. The clause also requires the planning appeals commission to notify the appellant of the amount of the appropriate fee and to specify the period within which it must be paid. If the fee is not paid within that period then the appeal on the planning merits will lapse and the commission barred from considering or determining the deemed planning application.

Clause 7 - Offence for non-compliance with an enforcement notice

This clause will strengthen and clarify existing provisions concerning offences for not complying with an enforcement notice. The clause provides for an increase in the maximum level of fine, on summary conviction, from £5,000 to £20,000. It also allows, for the first time, for a person to be convicted on indictment for this type of offence. The courts when determining either level of fine shall, in particular, have regard to any financial benefit, which has accrued or appears likely to have accrued, in consequence of the offence. The clause also makes it clear that a person found guilty of an offence, and who continues not to comply with a notice, may be guilty of a further offence, and subsequently, of still further offences until there is compliance with a notice.

Clause 8 - Execution of works required by enforcement notice

This clause strengthens the power of the Department to enter land and carry out works to ensure compliance with an enforcement notice. It also makes it an offence, punishable on summary conviction to a fine not exceeding level 3 on the standard scale (currently £1,000), to wilfully obstruct anyone authorised to carry out works.

Clause 9 - Stop notices

This clause strengthens and clarifies the current stop notice provisions by enabling a stop notice to take effect within a shorter period than at present and, immediately, if necessary. To ensure parity with the increased penalties for contravention of an enforcement notice, this clause provides that:

• until the notice is complied with, further offences may be committed;
• the maximum level of fine for contravention of a stop notice will be increased from £5,000 to £20,000 on summary conviction;
• statute will allow, for the first time, for a person to be convicted on indictment for this type of offence; and,
• the courts will be required to take account of any benefits accrued or which appear likely to accrue as a result of the offence.

In certain circumstances compensation may be payable when a stop notice is quashed or withdrawn. Subsection (2) provides that no compensation is payable in respect of a stop notice for any activity which at the time when the notice is in force constitutes or contributes to a breach of planning control or in respect of any loss or damage if such loss or damage could have been avoided had information required under a contravention notice (see clause 1), or Article 125 of the 1991 Order, been provided.

Clause 10 - Certificate of lawful use or development

This clause abolishes the unsatisfactory situation whereby a development may be "unlawful" but "immune" from enforcement action, because the time period for taking such action has elapsed. Under this clause, a person will be able to apply to the Department for a certificate to ascertain whether an existing use of buildings or other land, or operational development, or some activity in breach of a planning condition, is lawful. In the case of a proposed use or operational development, the grant of a certificate would establish the lawfulness of the proposed use or operational development.

The onus for producing sufficient evidence to warrant the granting of a certificate will rest firmly on the applicant. There will be a right of appeal against a refusal or failure to give a decision. Any person who makes a false or misleading statement in respect of procuring a certificate will on summary conviction be liable to a fine not exceeding the statutory maximum or, on conviction on indictment, to imprisonment for a term not exceeding two years, or a fine, or both.

Clause 11 - Rights of entry for enforcement purposes

This clause will allow officers of the Department to enter any land at all reasonable hours, on production of appropriate authority, for the purposes of investigating any alleged breach of planning control on that land or on immediately adjoining land.

The provisions of this clause are more closely tailored to the Department's needs in obtaining information, preparatory to taking formal enforcement action. When taken together with the new "planning contravention notice" (for which clause 1 provides) the Department will have comprehensive powers to obtain essential information about any suspected or actual breach of control under Part VI of the 1991 Order.

Clause 12 - Listed buildings

This clause provides for the following possible penalties for a person found guilty of an offence involving demolition, or alteration or extension of a listed building affecting its character:

• to be given a term of imprisonment not exceeding 6 months or a fine not exceeding £20,000 or both; or

• imprisonment for not more than 2 years, or a fine.

The courts when determining either level of fine shall, in particular, have regard to any financial benefit, which has accrued or appears likely to be accrued, in consequence of the offence.

Clause 13 - Hazardous substances

This clause provides that a person found guilty of an offence relating to hazardous substances will be liable on summary conviction to a fine not exceeding £20,000 or, on conviction on indictment, to a fine.

The courts when determining either level of fine shall, in particular, have regard to any financial benefit, which has accrued or appears likely to be accrued, in consequence of the offence.

It also allows for hazardous substances contravention notices to require only a partial remedy, if this is considered appropriate.

Clause 14 - Replacement of trees

This clause replaces Article 82 of the 1991 Order and provides for revised enforcement measures in respect of the protection of trees that are subject to a Tree Preservation Orders (TPO) as follows:

• a new power for the Department to enforce the duty to replace trees subject to a TPO;

• sets out specific grounds of appeal against enforcement notices in relation to trees;
• a power for the Department to enter onto land to replant trees subject to a TPO, and to recover any costs incurred as a civil debt;
• a new duty on an owner to replace trees in a Conservation Area that are removed.

Control over development

Clause 15 - Demolition

This clause introduces an amendment to make it clear that all demolition should come within the meaning of development for planning purposes. However, for the time being, only buildings in areas of townscape character and those buildings whose demolition is already subject to planning control, i.e. historic monuments, listed buildings and buildings in conservation areas, will be subject to this new regime. This will be achieved by specifying in a departmental direction under a new Article 11(2)(f) those buildings whose demolition does not come within the meaning of development for planning purposes and those buildings that do. The purpose of this is to avoid the possibility of a large number of planning applications for the demolition of relatively minor structures clogging up the planning process.

Clause 16 - Reversion to previous lawful use

This clause brings NI legislation into line with GB legislation by specifying that it is lawful to revert to a previous legal use following service of an enforcement notice or at the end of a temporary planning permission. At present in NI, technically such reversion requires planning permission.

Clause 17 - Power to decline to determine applications

To prevent developers using "repeat applications" as a tactic this clause gives the Department power to decline to determine a planning application if, within the preceding 2 years, it had refused an application designated as a major one under the Article 31 procedure of the Planning (NI) Order 1991, or the Planning Appeals Commission has dismissed an appeal for a similar proposal, and there has been no material change in circumstances.

Clause 18 - Assessment of environmental effects

Under EC Directive 85/337/EEC there is a requirement to make regulations which set out the classes of development for which an environmental assessment may be required. This requirement was implemented by the Planning (Environmental Impact Assessment) Regulations (Northern Ireland) 1999. This clause makes specific primary provision to allow new regulations to go beyond the environmental assessment provisions of the Directive. For example, in England and Wales the regulations were extended to include wind generators, motorway service areas and coastal protection works in the classes of development for which an environmental assessment may be required.

Clause 19 - Dismissal of appeal in cases of undue delay

To prevent time wasting appeals and appeals lodged for tactical purposes this clause will give the Planning Appeals Commission the power to dismiss an appeal if it appears that the appellant is causing undue delay in its progress.

Clause 20 - Planning agreements

This clause amends the application of planning agreements and introduces provisions relating to the modification or discharge of an agreement. A party to a planning agreement will be enabled by this clause to apply to the Department for modification and discharge of an agreement with a right of appeal to the Planning Appeals Commission against the Department's determination.

The clause also creates a new offence for the wilful obstruction of any person authorised to enter land to carry out works required by a planning agreement.

Control over particular matters

Clause 21 - Advertisements

This clause will broaden the definition of "advertisement" to include matters such as rotating poster panels, advertisements on permanently fixed blinds or canopies on business premises etc. This is to ensure that certain modern forms of outdoor advertising are subject to advertisement control.

Clause 22 - Building preservation notices

This clause introduces building preservation notices for the temporary listing of buildings, commonly referred to as "spot-listing". The introduction of these notices will enable the Department to respond quickly to protect buildings at risk.

Clause 23 - Trees

Together with clause 14, which deals with enforcement of duties in relation to the replacement of trees, this clause provides a major overhaul of the Department's powers in respect of the protection of trees and tree preservation orders (TPOs) as follows:

• a new duty to replace trees subject to a TPO that are removed. The existing TPO would automatically apply to the new trees planted as it did to the original trees, thereby providing that the removal of trees in itself does not automatically render the land suitable for development ;
• higher penalties for breaches of TPOs. This involves an increase from £5,000 to £20,000 in the maximum level that can be imposed on summary conviction by a court. There is no limit to a fine that can be imposed on conviction on indictment. The courts when determining either level of fine shall, in particular, have regard to any financial benefit, which has accrued or appears likely to be accrued, in consequence of the offence;
• a new provision in respect of the protection of trees in a conservation area; and
• a new provision in respect of compensation payable where consent to fell trees is refused. This will allow restrictions to be imposed on compensation payable, in each TPO made under the new provision.

Miscellaneous

Clause 24 - Status of development plans

This clause gives prime importance to a development plan in the determination of planning applications. Its effect will be that the development plan will no longer be simply a consideration to which "regard" must be had; the planning decision itself will now have to be made in general conformity with the plan, except where material considerations indicate otherwise. There is, therefore, a presumption in favour of development that accords with the plan and a presumption against development that does not.

In all cases, the development plan is the starting point for the determination of planning decisions and its provisions prevail until material considerations indicate otherwise.

Clause 25 - Planning Appeals Commission

This clause specifies, for the first time, the post of Deputy Chief Commissioner. It also makes specific provision to allow rules of procedure to be made governing the number of commissioners who will be required to make a decision on a planning appeal or to make a report to the Department on a public inquiry.

Clause 26 - Grants for research and bursaries

This clause extends an existing power to enable the Department to make grants for assisting establishments engaged in promoting or assisting research relating to, and education with respect to, the planning and design of the built environment in addition to the physical environment.

Clause 27 - Grants to bodies providing assistance in relation to certain development proposals

This clause provides the Department with powers to enable it to provide funding for bodies, which may include building preservation trusts, in circumstances where such funding would not necessarily be confined to grant eligible work, for example, the acquisition of buildings considered to be at risk.

Clause 28 - Planning register

In addition to those matters already listed in Article 124 of the Planning (NI) Order 1991, this clause requires the Department to keep registers available for public inspection detailing those notices that it issues relating to:

• tree preservation in conservation areas;
• breach of condition notices;
• certificates of lawfulness of existing use or development;
• certificates of lawfulness of proposed use or development; and
• building preservation notices.

Clause 29 - Home loss payments following planning blight

This clause has been included to correct an omission in the Home Loss Payments (Northern Ireland) Order1992 that only came to light in 1997. It will allow a home loss payment to be made to owner occupiers who have served a blight notice on the Department under the provisions of the Planning Blight Compensation (Northern Ireland) Order 1981.

Clause 30 - Minor and consequential amendments and appeals

This clause makes provision for minor and consequential amendments to be made in Schedules 1 and 2 to the Bill.

Clause 31 - Commencement

This clause provides for certain provisions in the Bill to come into operation on such day or days as may be appointed by the Department and for transitional and saving provisions to be made.

Clause 32 - Short title

This section gives the short title of the Act. This is the title by which the Act will be referred to.

Schedule 1: Minor and consequential amendments

This schedule makes minor and consequential amendments to the Planning (Northern Ireland) Order 1972 and the Planning (Northern Ireland) Order 1991, as required by the new provisions inserted by the Bill.

Schedule 2: Repeals

This schedule details those existing Articles of both the Planning (Northern Ireland) Order 1972 and the Planning (Northern Ireland) Order 1991 which are being repealed by this Bill.

FINANCIAL EFFECTS OF THE BILL

12. Although not considered to be significant, it is likely that there will be some marginal financial implications for the Department in introducing the main provisions in the Bill.

EFFECTS ON EQUAL OPPORTUNITY

13. The Bill will not unlawfully, unfairly or unjustifiably discriminate, directly or indirectly, against specified sections of the community.

HUMAN RIGHTS ISSUES

14. The provisions of the Bill are compatible with Convention rights. The Human Rights Commission was consulted as part of the evaluation process and offered no comments.

SUMMARY OF THE REGULATORY APPRAISAL

15. The Department of Enterprise, Trade and Investment has advised that, as the Bill will have no direct impact on employment and is unlikely to result in extra costs to business, a regulatory impact assessment is not required.

SECRETARY OF STATE'S CONSENT

16. The Bill includes provisions to allow the Department to apply to the court for an injunction, to create new offences and increase the level of fines and penalties. These are reserved matters under paragraph 9(b) of Schedule 3 to the Northern Ireland Act 1998 and the Secretary of State has consented under section 10(3)(b) of the Northern Ireland Act 1998 to the Assembly considering the Bill.

LEGISLATIVE COMPETENCE

17. At Introduction the Minister of the Environment had made the following statement under section 9 of the Northern Ireland Act 1998:

"In my view the Planning (Amendment) Bill would be within the legislative competence of the Northern Ireland Assembly."