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CLEAN NEIGHBOURHOODS AND ENVIRONMENT BILL

Explanatory and financial memorandum

INTRODUCTION

1. This Explanatory and Financial Memorandum has been prepared by the Department of the Environment 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 is not, and is not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause or Schedule does not seem to require an explanation or comment, none is given.

BACKGROUD AND POLICY OBJECTIVES

3. Since the Clean Neighbourhoods and Environment Act 2005 was made in England and Wales, the Department has received ongoing enquiries from MLAs, MPs, district councils, Tidy Northern Ireland, the NI Local Government Association, the Chief Environmental Health Officers’ Group and other interests calling for the introduction of similar legislation in Northern Ireland. Up until now, however, the Department has been unable to respond positively to these representations because its limited policy and legislation development resources have had to be allocated to other higher priorities.

4. The objective of the Bill is to improve the quality of the local environment by giving district councils additional powers to deal with litter, nuisance alleys, graffiti and fly posting, abandoned and nuisance vehicles, dogs, noise and statutory nuisance.

5. The Bill is essentially an important first step in the Clean Neighbourhoods Agenda to be supported with a significant and comprehensive programme of subordinate legislation and guidance all of which will be subject to further detailed consultation exercises.

6. Part 1 of the Bill makes provision for Gating Orders, Part 2 makes provision for Vehicles, Part 3 makes provision for Litter, Part 4 makes provision for Graffiti and Other Defacement; Part 5 makes provision for Dogs, Part 6 makes provision for Noise, Part 7 makes provision for Statutory Nuisances and Part 8 contains miscellaneous and supplementary provisions.

CONSULTATION

7. In excess of 140 individuals and organisations were consulted on the proposals, including political parties, the Environment Committee, MLAs, district councils and community and voluntary organisations. In addition advertisements publicising the consultation exercise were placed in the local press and full details of the consultation exercise were also available on the Department of the Environment’s website.

OPTIONS CONSIDERED

8. The Minister of the Environment’s view, informed by the representations from the local government sector in particular, was that the Department should aim to provide councils in Northern Ireland with broadly the same powers which their counterparts in England and Wales have under the Clean Neighbourhoods and Environment Act 2005. The Bill as issued for consultation therefore contained many provisions covering a wide range of low level environmental crime issues. Many of the provisions in the draft Bill were welcomed by respondents to the Consultation exercise, however, there were a significant number of comments and observations concerning the detail and extent of the provisions. Details of specific comments raised on the draft Bill and the Department's response to those comments are set out in a consultation summary document on the Department’s website http://www.doeni.gov.uk/clean_neighbourhoods.htm

OVERVIEW

9. The Bill has 76 clauses and 4 Schedules and is divided into 8 distinct Parts.

COMMENTARY ON CLAUSES

Comments are not given where the wording is self explanatory.

PART 1 - GATING ORDERS

Clause 1 inserts a new Part in the Roads ( Northern Ireland) Order 1993 to provide district councils with the power to make a gating order to restrict public access to a road over which the public would normally have a right of passage. A gating order may be made in respect of a road which is facilitating high and persistent of crime and/or anti-social behaviour that adversely affects local residents or businesses. District councils will be required to publicise their intention to make a gating order and to obtain the approval of the Department for Regional Development prior to making the order.

PART 2 - VEHICLES

Clause 2 makes it an offence for a person to park motor vehicles on a road or roads, where the vehicles are parked merely in order to be sold. There must be two or more vehicles within 500 metres of each other for the offence to be committed. A person will not be convicted of an offence if he can prove that he was not acting for the purposes of a business.

Clause 3 makes it an offence to carry out "restricted works" to vehicles on a road. “Restricted works” means:

A person will not be convicted of an offence if he proves that the works were not carried out in the course of a business or for gain or reward. However, this defence is only available where the works did not give "reasonable cause for annoyance" to persons in the vicinity. A person will also not be convicted of an offence where the repairs arose from a breakdown or accident and were carried out promptly or were otherwise authorised.

Clause 4(1) enables an employee of a district council who is authorised by the council to issue a fixed penalty notice for the offences of exposing vehicles for sale or repairing a vehicle on the road, offering the offender an opportunity to discharge any liability for the offence. Subsection (8) fixes the amount of the penalty at £100 which can be amended by order under subsection (9). Under subsection (10) the district council to which a fixed penalty is payable may provide for treating it as having been paid if a lesser amount is paid before the end of such (shorter) period as it may specify.

Clause 5(1) provides an authorised officer of a district council with the power to require the name and address of an offender if the officer proposes to give him a penalty notice. Subsection (2) makes it an offence to fail to provide the information asked for or to give inaccurate information.

Clause 6 enables district councils to use the receipts from fixed penalty notices issued pursuant to clause 4 for the purposes of specified functions.

Clause 7 amends the Pollution Control and Local Government ( Northern Ireland) Order 1978 (which makes it an offence to abandon a motor vehicle) by inserting new Articles 29A to 29C. New Article 29A of the Order gives an authorised officer of a district council the power to issue a fixed penalty notice in respect of an offence of abandoning a vehicle, offering the offender the opportunity to discharge any liability for the offence. The sum is set at £200 by paragraph (8) which can be amended by order as set out in paragraph (9). Under paragraph (10) the district council to which a fixed penalty is payable may provide for treating it as having been paid if a lesser amount is paid before the end of such (shorter) period as it may specify.

New Article 29B enables an authorised officer of a district council to require the name and address of the person to whom he proposes to issue a fixed penalty notice. A person commits an offence if he gives false or inaccurate details.

New Article 29C enables district councils to use the receipts from these penalties for the purposes of specified functions.

Clause 8 amends Article 30 of the Pollution Control and Local Government ( Northern Ireland) Order 1978 (the 1978 Order). It removes the requirement to serve a notice on the occupier of land where a vehicle that appears to be abandoned is on a ‘road’, enabling vehicles to be removed immediately from any road to which the public has access.

Subsection (3) removes the requirement for a district council to affix a notice to an abandoned vehicle prior to removal where it is considered to be in such a condition that it ought to be destroyed.

Clause 9 relates to the steps a district council must take before it can dispose of an abandoned vehicle. Clause 9 amends Article 31 of the 1978 Order by removing the requirement to wait for the expiration of a valid licence. This has the effect of allowing any vehicle that is only fit for destruction to be destroyed immediately. In other cases, if the owner either cannot be traced or fails to respond to a notice the vehicle can then be disposed of.

Clause 9 also amends Article 31 by allowing immediate disposal where neither a registration mark (plate) is shown nor current licence displayed. Without that information, it is considered unreasonable to expect the council to trace the owner. This clause allows these vehicles to be disposed of immediately.

Clause 10 obliges councils to have regard to guidance given by the Department when exercising their functions in relation to the removal and disposal of vehicles.

Clause 11 amends Articles 48 and 49 of the Road Traffic Regulation ( Northern Ireland) Order 1997 (the 1997 Order) to remove the requirement to attach a notice on a vehicle that is considered in such a condition that it ought to be destroyed. The 1997 Order has similar provisions for dealing with abandoned vehicles as are contained in the 1978 Order but provides a power for constables and the Department for Regional Development to act, rather than the duty imposed on district councils under Article 30 of the 1978 Order.

Clauses 12 and 13 amend Articles 51 and 52 of the 1997 Order to make various amendments that mirror the amendments made by clause 9. It allows for the disposal of vehicles that do not display either a valid licence or a registration mark (plate) and also removes the requirement to wait for the expiration of a valid licence before the vehicle can be disposed of. There are also amendments to allow the period of time before a vehicle can be disposed to be reduced by regulations.

PART 3 - LITTER

Clause 14 amends the offence of dropping litter in the Litter ( Northern Ireland) Order 1994 (the Litter Order) in relation to a lake, pond or watercourse. Article 3 of the Litter Order describes what constitutes the offence of leaving litter and under what circumstances leaving litter is not an offence. Article 3(2) of the Litter Order provides that it shall be a defence for a person charged with an offence of leaving litter to prove that the disposal was authorised by law or done with the consent of the owner or other person or authority having control over the place in which the item of litter was deposited. Clause 14 inserts a new paragraph (2A) into Article 3 to provide that consent may only be given in relation to a lake, pond or watercourse if the same person owns all the surrounding land.

Clause 15 amends the Litter Order to also make it an offence to give a false or inaccurate name and address. This clause also increases the maximum level of fine on summary conviction for these offences to level 3 (£1000)

Clause 16 amends Article 6 of the Litter Order (fixed penalty notices). Subsection (2) amends Article 6 to enable a district council to specify the amount of fixed penalty to be applied in its district; where the council sets no such amount the fixed penalty shall be £75. Powers set out in Article 18A (introduced by clause 22) of the Litter Order enable the Department to make regulations to set a minimum and maximum range within which the fixed penalty amount can be set. The district council to which a fixed penalty is payable may provide for treating it as having been paid if a lesser amount is paid before the end of such (shorter) period as it may specify.

Subsection (3) inserts a definition of an “authorised officer” which allows district councils to authorise individuals other than their own employees to issue fixed penalty notices on their behalf.

Clause 17 repeals the power to designate litter control areas (and Schedule 4 repeals provisions of the Litter Order which are consequential on that power). As an alternative, the clause inserts a new Article 12A into the Litter Order empowering district councils to serve “litter clearing notices” on particular occupiers where they are of the view that defacement caused by the litter is detrimental to the amenity of the area. It also inserts new Articles 12B and 12C into the Litter Order. Article 12B provides a person who has been served a litter clearing notice with the right of appeal to a court of summary jurisdiction and sets out the grounds on which the appeal may be made. Article 12C makes it an offence to fail without reasonable excuse to comply with a litter clearing notice. Where a person fails to meet the requirement of a notice, a district council may itself enter the land to remove the litter. A council may impose a reasonable charge for this on the person who failed to comply with the notice.

Clause 18 extends the application of street litter control notices under Article 13 of the Litter Order to cover also vehicles, stalls and other moveable structures used for street vending, so that mobile vendors can also be required to take steps to minimise and clear up litter on any street or open land adjacent to it that originates from their commercial or retail activities.

Clause 19 amends the Litter Order to make it an immediate offence not to comply with the requirements of a street litter control notice, thus dispensing with the requirement on the council first to seek an order from a court of summary jurisdiction ordering compliance. Article 14(4)(b) of the Litter Order relating to the requirements which may be imposed by a notice has been extended to include the standards to which any such thing must be done.

Clause 20 inserts Article 14A into the Litter Order to enable an authorised officer of the district council to issue a notice to a person who he has reason to believe has not complied with a litter clearing notice or a street litter control notice, offering that person an opportunity to discharge any liability to conviction for an offence by payment of a fixed penalty. The use of receipts from these fixed penalty notices is dealt with under clause 69.

Clause 21 inserts Article 14B and Schedule 1A into the Litter Order. This gives district councils the power to control the distribution of free literature to prevent such material from becoming litter in the local environment. The restrictions in this Article are subject to exceptions in the case of charity, religious and political material.

Paragraph 1 of Schedule 1A makes it an offence to distribute, commission or pay for the distribution of free literature without consent in a designated area. Material distributed for charitable, religious and political purposes is exempted from the offence. The offence does not extend to putting literature inside a building or letter-box, nor does it apply where the distribution takes place entirely within a public service vehicle, such as a bus or coach.

Paragraph 2 enables a council to make an order to designate areas where this offence will apply. It sets out the procedure and requirements for achieving designation, including public notification, consideration of objections and timing of designation.

Paragraph 3 enables a council to issue consents for the distribution of free literature in a designated area. This includes provisions allowing a council to impose conditions on the consent to prevent defacement and ensure enforcement, to refuse consent in certain circumstances, and to revoke consent. The consent may also specify that others can also distribute the material in accordance with that consent, for example, a distributor, an individual or the employees of the applicant.

Paragraph 4 enables a council to charge a fee, within the confines of overall cost recovery for this Schedule.

Paragraph 5 provides for appeal to a court of summary jurisdiction.

Paragraph 6 enables an authorised officer of a district council to seize the material when an offence is committed. A person claiming ownership of the literature may apply to a court of summary jurisdiction requesting the return of this material.

Paragraph 7 enables a council, or any person authorised by a council, to issue a fixed penalty notice for this offence, offering the offender an opportunity to discharge any liability to the offence.

Clause 22 introduces a new Article 18A into the Litter Order, relating to the fixed penalty notices associated with the offence of dropping litter, litter clearing notices, street litter control notices and the distribution of printed matter. It enables the Department to make regulations which may set a range within which a locally determined fixed penalty amount must fall. Such regulations may also restrict the extent to which and the circumstances in which a council may permit the payment of lesser amounts. Article 18A also enables the Department, by order, to change the amount of the fixed penalty where no local rate is set by the council.

Clause 23 amends the Litter Order by introducing new Article 18B which protects a district council and any other person described in Article 18B(2) against liability to an occupier or owner of land for damages or otherwise arising out of the exercise of certain powers relating to entry on to land (as specified in the Article) in the context of either a litter clearing notice or a litter abatement notice. The circumstances in which this exclusion does not apply are also set out (bad faith, lack of due care, etc.).

Clause 24 amends Schedule 1 to the Litter Order so as to enable a district council to charge the person believed to be the owner of an abandoned shopping or luggage trolley for its removal, storage and disposal. The charge is payable to the council on demand and is recoverable by the council as a debt due to it.

Clause 25 sets out transitional provisions relating to clause 24.

PART 4 – GRAFFITI AND OTHER DEFACEMENT

Clauses 26 to 30 give an authorised officer of a district council the ability to issue fixed penalty notices to offenders who have perpetrated acts of graffiti or fly-posting. The intention is to levy the penalties only on the persons actually committing these acts, and not in the case of fly-posting on the person (unless he is one and the same) whose goods or services are advertised on the poster.

Clause 26(1) sets out the power for the authorised officer of a district council to issue a penalty for the relevant offence (defined in subsection (10)). Subsection (2) excludes from the scope of such offences capable of being dealt with by means of a fixed penalty notice any that is racially or religiously targeted or motivated. Subsection (3) restricts the possibility of being issued with a fixed penalty notice in lieu of prosecution for an offence under Article 84(2) of the Planning (Northern Ireland) Order 1991 to the person personally affixing or placing the unlawful advertisement in question. Subsection (4)(a) provides that offenders have 14 days in which to pay the penalty, after which prosecution for the offence may be initiated. Subsection (4)(b) sets out that no proceedings may be brought where payment of the fixed penalty has been made within the 14 day period.

Subsection (5) provides that in issuing a fixed penalty an authorised officer must provide a written statement setting out the particulars of the offence. Subsection (6) sets out that the notice setting out the particulars of the offence must state that legal proceedings will not be initiated until after 14 days, the amount of the fixed penalty and details of where and to whom the penalty should be paid.

Subsection (7) provides that payment of a penalty may be made by pre-paying and posting a letter containing the full amount of the penalty (in cash or otherwise) to the person named on the notice. Subsection (8) provides that where a letter is sent containing payment of the penalty, that payment is deemed as having been made at the time the letter would ordinarily be expected to be delivered. Subsection (9) provides that the penalty notice shall be in such form as the Department may prescribe.

Subsections (10) and (11) contain definitions.

Clause 27 enables a district council to vary the fixed penalty amount for a graffiti or fly-posting offence in its district. Where no amount is specified by a district council, the amount of the fixed penalty is £75. This amount may be changed by an order made by the Department. In either case, the council may provide for a lesser amount to be paid if early payment is made within a specified period. In addition, the Department may make regulations relating to the fixed penalty amount, for example to specify a range within which the amount should fall.

Clause 28 gives an authorised officer of a district council the power to require the name and address of a person to whom he proposes to give a fixed penalty notice, and makes it an offence for that person either to fail to give that information or to give false or inaccurate information.

Clause 29 provides that penalties issued under clause 26 are payable to the district council whose authorised officer gave the fixed penalty notice.

Clause 30 permits the Department to issue guidance to district councils in respect of the exercise of their officers' discretion to issue fixed penalty notices under clause 26 and about the giving of such notices.

Clause 31(1) and (2) enables a district council to serve a "defacement removal notice" on the owners of street furniture, statutory undertakers and educational institutions whose property is defaced with graffiti or any poster or flyer displayed on a relevant surface in contravention of regulations made under Article 67 of the Planning (Northern Ireland) Order 1991 and which is either detrimental to the amenity of the district or offensive.

Subsection (3) sets out that the notice will require them to remove the defacement within a specified period of time, a minimum of 28 days. Subsections (4) and (5) state that if the person responsible for the property fails to remove the defacement, the district council can intervene and clean up the defacement. Subsection (6) requires that the notice should detail the consequences of non-compliance and subsection (7) allows that the council may affix a notice to the offending surface if they are unable to locate the person responsible. Subsections (8) and (9) define the surfaces covered, subsection (10) sets out whom the notice should be served upon and subsection (11) provides the definition of remaining terms.

Clause 32 sets out the process for district councils to recover costs from the persons responsible for the property they clean under clause 31(4). .

Clause 33 requires the Department to issue guidance on the operation of clauses 31 and 32.

Clause 34 sets out grounds and processes for appeal.

Clause 35 sets out the terms of the exemption from liability for damages that protects those taking action to:

Clause 36 makes it an offence to sell aerosol spray paints to persons aged under 16. Subsection (2) contains a definition of aerosol paint container. Subsection (3) sets out the maximum penalty for the offence which is a fine of £2,500. Subsection (4) provides a defence for those who took all reasonable steps to determine the purchaser's age and reasonably believed he was 16 or over. Subsection (5) provides a defence for someone who is charged with an offence but did not carry out the sale himself (such as a shopkeeper) if he took all reasonable steps to avoid the commission of an offence.

Subsection (6) requires district councils to consider, at least once a year, the extent to which it is appropriate to have a programme of enforcement action in relation to this clause and, to that extent, to carry out such a programme. Subsection (7) sets out what measures a programme of enforcement action may contain. Guidance will set out what "other measures" in subsection (7)(c) may include.

Clause 37 amends Article 84 of the Planning ( Northern Ireland) Order 1991 which makes it an offence to display an advertisement in contravention of Regulations made under Article 67 of the Order. Such an offence is capable of being committed by a person who owns land where the advertisement is displayed, or whose business or concerns are advertised. At present, there is a defence for such a person, namely where he proves that the advertisement was displayed without his knowledge or consent. This makes it very hard to secure a conviction. Subsection (2) amends the statutory defence so that a person has to prove that the advertisement was either displayed without his knowledge; or that he either took all reasonable steps to prevent the display, or to secure its removal after the advertisement had been displayed.

PART 5 - DOGS

Clause 38 enables district councils to make orders that apply offences aimed at the control of dogs (“dog control orders”) to specified land in their area. Subsection (3) sets out the four categories of offence that can be provided for. The effect of subsection (4) is that the scope of offences that can be provided for in dog control orders will be set out in regulations.

Clause 39 requires the Department to make regulations which set out: the maximum penalties for dog offences; the content and format of dog control orders; and the process to be undertaken by district councils before and after making such orders (including requirements in respect of consultation on, and publication of, such orders).

Clause 40 provides that dog control orders may apply to all land to which the public is allowed access and which is open to the air. Subsection (3) allows for exclusions, by order, to the types of land that can be subject to dog control orders. Land which is the subject of a private Act may also be excluded.

Clause 41 allows authorised officers of district councils, or an authorised person working on their behalf, to issue a fixed penalty notice offering members of the public an opportunity to discharge any liability for offences under a dog control order.

Clause 42 enables a district council to specify the amount of a fixed penalty in relation to their own dog control orders. Councils will also be able to allow for the payment of a lesser amount if the fine is paid within a specified time period. Where no amount is specified at the local level, the fixed penalty is set at £75. Subsections (4) to (6) also provide the Department with the power to make regulations relating to the fixed penalty – in particular, to prescribe a range within which penalties fixed at the local level must fall; the Department may also (by order) substitute the figure of £75 referred to above with a new amount.

Clause 43 provides an authorised officer of a district council with the power to require the name and address of a person if the officer proposes to give that person a fixed penalty notice, and makes it an offence for that person either to fail to give that information or to give false or inaccurate information.

Clause 44 removes the ability of district councils to make byelaws to control dogs in circumstances where it would also be possible for the council to make a dog control order in respect of the same matter in relation to the land in question. Existing byelaws will remain in place unless that land is made the subject of a dog control order for the same type of offence. For example, if a district council has a byelaw in place banning dogs from a local park, that byelaw will continue to have effect until such time as the council makes a dog control order in relation to that park that likewise bans dogs.

PART 6 – NOISE

CHAPTER 1: AUDIBLE INTRUDER ALARMS

Clause 45 sets out the steps that must be followed by a council wishing to designate an area as an alarm notification area.

Clause 46 enables a district council to withdraw a designation made under clause 45 and sets out the steps for doing so.

Clause 47 requires that the responsible person in respect of premises with an audible intruder alarm within an alarm notification area must nominate a key-holder for the premises and then notify the district council of that key-holder’s name, address and telephone number. Subsections (2) and (4) make it an offence for the responsible person to fail either to nominate or to notify within the specified time period.

Clause 48 (subsections (3) to (5)) describes who is eligible to be nominated as a key-holder. Subsection (6) provides that where a key-holder ceases to satisfy certain requirements, the responsible person must nominate a replacement. The responsible person would then, under clause 47, have to notify the details of the new key-holder to the council. Again, failure either to nominate or notify would be an offence.

Clause 49 (subsections (1) and (2)) enables an “authorised officer” of a district council to issue a fixed penalty notice where it appears to that officer that an offence of failing to nominate or notify details of a key-holder has been committed, offering the offender an opportunity to discharge, by payment of a fixed penalty (within 14 days), any liability to conviction for the offence. Who qualifies as an authorised officer is described in subsection (10). The rest of the clause sets out the effects of the fixed penalty notice, what information such a notice should contain, and procedures for payment.

Clause 50 (subsections (2) and (3)) enables district councils to specify the amount of a fixed penalty for an offence committed in their area. Where no amount is set by the council, the penalty amount will be £75. In either case, a district council may treat a penalty as having been paid if a lesser amount is paid before the end of such (shorter) period as it may specify. Subsections (4) and (5) give power to the Department to make regulations governing the power of district council to set local fixed penalty rates (e.g. by specifying a range within which the amount must fall or limiting the extent and circumstances in respect of which a council may provide for reduced early payment). Under subsection (6) the Department may (by order) substitute the figure of £75 referred to above with a new amount.

Clause 51 allows a district council to retain the receipts arising from fixed penalty notices issued pursuant to clause 49, and specifies the functions for which the receipts may be used.

Clause 52 provides an authorised officer of a district council with the power to require the name and address of a person if the officer proposes to give that person a fixed penalty notice, and makes it an offence for that person either to fail to give that information or to give false or inaccurate information.

Clause 53 (subsections (3) and (4)) provides an authorised officer of a district council with a power of entry (but not by force) in order to silence an intruder alarm in or on premises in the council’s area where the officer is satisfied that the conditions described in subsection (2) are met.

Clause 54 provides that an authorised officer may enter premises using reasonable force if necessary to silence an alarm following the issue of a warrant by a lay magistrate.

Clause 55 makes supplementary provision where an officer of a district council enters any premises to silence an alarm either under clause 53 or under a warrant issued under clause 54. This includes provision allowing an officer to take other persons with him or her to the premises (subsection (3)), requiring the officer (if the premises are unoccupied or the occupier is temporarily absent) to leave a notice at the premises stating what action has been taken and securing the premises (subsection (5)), allowing a district council to recover expenses reasonably incurred by it in connection with entering the premises and silencing the alarm (subsection (7)) and ensuring that action taken in good faith by the council under these powers does not subject it to any liability (subsection (9)).

Clause 56 – relates to the interpretation of this Chapter of the Bill.

CHAPTER 2: AMENDMENTS TO THE NOISE ACT 1996

Clause 57 amends the Noise Act 1996, which currently gives powers to district councils in Northern Ireland to deal with noise at night (by way of warning notices, fixed penalties etc.). These powers have previously only applied to a district council in Northern Ireland that adopts them in its area. Subsection (2) confers these powers on all councils in Northern Ireland. Subsection (3) removes the previously associated duty (once the powers had been adopted) to take reasonable steps to investigate a complaint, and substitutes a discretionary power to take such steps in response to a complaint. Subsection (4) removes a provision that would have applied to a situation where one district council had adopted powers under the Act but a neighbouring council had not, as this will no longer apply.

Clause 58 makes various amendments to the provisions in the Noise Act 1996 relating to fixed penalties. The Noise Act 1996, in its application to Northern Ireland, currently permits a district council to deal with noise exceeding permitted levels only from dwellings at night-time. An authorised officer of a district council can, under section 8 of that Act, give a person who the officer believes has committed an offence under the Act a fixed penalty notice, offering that person the opportunity to discharge any liability to conviction for that offence by payment of a fixed penalty.

Subsection (2) introduces new sections 8A and 8B to the Noise Act 1996. Under the new section 8A(2)(a) a district council will be able to set the level of the fixed penalty (in lieu of liability to conviction for an offence) in its district. The fixed penalty is set at £100 where no amount is specified by a district council (which is the amount of the penalty under the current regime). In either case, a district council may treat a penalty as having been paid if a lesser amount is paid before the end of such (shorter) period as it may specify. Section 8A(3) provides that where the alleged offence relates to licensed premises, the amount of the fixed penalty will be fixed at £500 (with no power for a district council to set an alternative). New sections 8A(5) and (6) give powers to the Department to make regulations governing the power of district councils to set local fixed penalty rates (e.g. by specifying a range within which the amount must fall or limiting the extent and circumstances in respect of which a district council may provide for reduced early payment). The new section 8B provides an authorised officer of a district council with the power to require the name and address of a person if the officer proposes to give that person a fixed penalty notice, and makes it an offence for that person either to fail to give that information or to give false or inaccurate information.

Subsection (3) amends section 9 of the Noise Act 1996 and specifies the qualifying functions for which a district council can use the receipts from fixed penalty notices. The new section 9(4B) to (4F) makes further provision regarding the use of fixed penalty receipts and includes a power for the Department to make regulations about how district councils can use their fixed penalty receipts.

Clause 59 and Schedule 1 extend the powers under the Noise Act 1996 for a district council to take action to deal with noise at night (formerly restricted to noise from dwellings) to premises as specified in paragraph 3(2) of the said Schedule 1.

PART 7 – STATUTORY NUISANCES

Clause 60 sets out a definitive list statutory nuisances. It also updates and clarifies the definition in a number of minor respects.

Clause 61 re-enacts the existing duty on councils to inspect their district from time to time to detect any statutory nuisance that ought to be dealt with under clauses 62 or 63, and to take such steps as are reasonably practicable to investigate a complaint about a statutory nuisance.

Clause 62 streamlines the procedures for nuisance abatement action by district councils. It replaces the present two-stage procedure by a simpler procedure based upon the noise abatement provisions of the Pollution Control and Local Government ( Northern Ireland) Order 1978. It gives district councils a new power to serve an abatement notice in anticipation of a statutory notice occurring. It gives councils power to serve a notice to abate existing nuisance or to prohibit commission of future nuisance. It provides for: a mechanism to appeal against the notice; offences if the notice is contravened; defences for the offence of contravening the notice.

Clause 63 stipulates the procedure to be followed by district councils in serving an abatement notice with regard to noise in the street. This clause further provides for offences for removing or interfering with a notice fixed to a vehicle, machinery or equipment.

Clause 64 provides that where more than one person is responsible for a statutory nuisance, clause 62 shall apply to each of those persons whether or not what any one of them is responsible for would, by itself, amount to a nuisance. In particular, this clause provides that where an abatement notice has not been complied with, a district council may, abate the nuisance and do whatever may be necessary in execution of the notice. This clause further provides that if a council is of the opinion that proceedings for an offence in a court of summary jurisdiction would afford inadequate remedy in the case of any statutory nuisance, it may take proceedings in the High Court for specified purposes notwithstanding the council has suffered no damage from the nuisance.

Clause 65 enables district councils, in certain circumstances, to charge premises with expenses reasonably incurred in abating a statutory nuisance. The clause also provides that the expenses and interest are a charge on the property until they are paid off and makes provision for appeal to the county court against the notice making the expenses a charge.

Clause 66 provides for the payment of expense by instalments where any expenses are a charge on premises under clause 65. The clause also permits the sum charged to be taken by the council from the rent of any tenant.

Clause 67 provides a right for a private individual who is aggrieved by the existence of a statutory nuisance to apply to the court of summary jurisdiction for a nuisance abatement order. The provision: allows a court of summary jurisdiction to impose a fine on the individual causing the nuisance in addition to the order abating the nuisance; allows the court to prevent habitation of a house where the house is not fit; sets out notice requirements which must be followed prior to applying to the court; creates an offence of failing to comply with an abatement order made by the court and provides defences to such an offence.

Clause 68 provides for Part 7 of this Bill to bind the Crown.

PART 8 – MISCELLANEOUS AND SUPPLEMENTARY

Clause 69 enables district councils to use for certain functions the money received from any fixed penalty notices they issue in respect of certain offences relating to litter, fly-posting, graffiti and dog control offences. The clause also makes ancillary provision for the Department to regulate the issue of penalty receipts.

Clause 70 increases from £30,000 to £50,000, the maximum fine on summary conviction that may be provided for in Regulations made under pollution prevention and control provisions in the Environment ( Northern Ireland) Order 2002. This will enable the maximum fines on summary conviction in the Pollution Prevention and Control Regulations (Northern Ireland) 2003 concerning, for example, contravention of the requirement for a permit to operate an installation or mobile plant, failure to comply with or to contravene a condition of a permit and failure to comply with the requirements of an enforcement notice or a suspension notice, to be brought into line with the equivalent maximum fines in respect of illegal waste activity set out in the Waste and Contaminated Land (Northern Ireland) Order 1997 in order to ensure consistency in this area of regulation. The increase to £50,000 also brings the level of fine into line with that which applies in England and Wales.

Clause 71 amends section 20(2) of the Interpretation Act ( Northern Ireland) 1954 concerning offences by bodies corporate for the purposes of its application to this Bill. The effect of this clause is that it makes a company director and those that have control over a company guilty of an offence under this Bill if it can be proved that the offence was committed with their consent or connivance, or could be attributed to their neglect.

Clause 72 provides that regulations and orders made by the Department may include such additional provisions as the Department considers necessary.

Clause 73 contains interpretation provisions.

Clause 74 provides for the amendments and repeals set out in Schedules 3 and 4 to have effect.

Clause 75 concerns the commencement of the Bill and enables the Department to make Commencement Orders.

Clause 76 provides a short title for the Bill.

Schedule 1 to the Bill makes various amendments to the Noise Act 1996 so as to extend its application to licensed premises (including premises subject to an occasional licence ), registered clubs and premises subject to an exhibition licence , entertainments licence and to premises where meals or refreshments are supplied.

Schedule 2 provides supplementary provisions in connection with Part 6 (Statutory Nuisances) of the Bill concerning appeals to a court of summary jurisdiction, powers of entry etc., offences relating to entry, default powers, protection from personal liability and statement of right of appeal in notices.

Schedule 3 lists the minor and consequential amendments necessary in the Bill.

Schedule 4 lists the repeals brought in by the Bill

FINACIAL EFFECTS OF THE BILL

10. The Department is of the view that, taken as a whole, the proposals in the Bill will be cost neutral to district councils. Some of the new measures have the potential for cost recovery - for example, councils issuing fixed penalties for various offences will be able to offset receipts against their enforcement costs. Through time new measures in the Bill could well lead to overall savings in district council costs through increased efficiency and effective, well-publicised enforcement.

HUMAN RIGHTS ISSUES

11. The provisions of the Bill are compatible with the provisions of the Human Rights Act 1998.

EQUALITY IMPACT ASSESSMENT

12. The provisions are believed to be consistent with equality of opportunity.

SUMMARY OF THE REGULATORY IMPACT ASSESSMENT

13. The Bill has been assessed to determine any regulatory impact and it is considered that the majority of measures contained within it should not have a direct impact on businesses unless they conduct their affairs in an irresponsible manner leading to degradation of the environment. Enacting this legislation will have no significant financial implications as it is considered by the Department to be cost neutral to district councils and could lead to overall savings in district council costs through increased efficiency and effective, well-publicised enforcement.

LEGISLATIVE COMPETENCE

14. The Minister of the Environment had made the following statement under section 9 of the Northern Ireland Act 1998:

“In my view, the Clean Neighbourhoods and Environment Bill would be within the legislative competence of the Northern Ireland Assembly.”