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This report was not approved formally by the Committee prior to the suspension of the Assembly on 14 October 2002, but is published by order of the Speaker.
Committee for Regional Development
Wednesday 2 October 2002
MINUTES OF EVIDENCE
Strategic Planning Bill:
Mr McFarland (Deputy Chairperson)
Mr B Gamble ) Department
The Deputy Chairperson: Today’s meeting includes clause-by-clause scrutiny of the Strategic Planning Bill. Mr Billy Gamble, Mr Ian Raphael and Ms Sharon Mossman from the Department for Regional Development have once again kindly agreed to enter the lion’s den to help us with the details.
I should like to begin by recapping. You will recall that the proposed Strategic Planning Bill was introduced in the Assembly on 11 June, and the Committee Stage commenced on 26 June. You may also recall that departmental officials first briefed the Committee on the proposed Bill on 14 November 2001 and again on 9 January 2002. Further discussion took place on 10 April following completion of the public consultation process. During the Committee Stage of the Bill, we took evidence from the Planning Appeals Commission, the Royal Town Planning Institute and the Department. Members will agree that we have been thorough in our approach and discussed all the key issues at length.
I do not wish to go over all that has been discussed, but there have been two important issues. The first, regarding the regional development strategy (RDS), concerns changing the words "consistent with" to "in general conformity with". The second is the issue of the Department getting "a second bite of the cherry", as it was termed, when it comes to appeals on area plans not being in general conformity with the RDS.
I suspect that we shall wish to discuss the areas of contention briefly with you again, but we shall begin with the long title.
Long title agreed to.
The Deputy Chairperson: The Committee will move to a formal clause-by-clause consideration of the Bill. Officials from the Department for Regional Development are here to provide advice.
Clause 1 (Certain policies, plans and schemes under the Planning Order to be in general conformity with the regional development strategy)
The Deputy Chairperson: Clause 1 amends articles of the Planning (Northern Ireland) Order 1991. The explanatory and financial memorandum states:
"Under these provisions planning policies, development plans and development schemes must be ‘consistent with’ the regional development strategy. The amendment will delete the words ‘consistent with’ and substitute the words ‘in general conformity with’."
The Committee has had several long discussions about that clause and the practical reasons for that change. Although Mr Ervine expressed concerns about it, the Committee agreed that, providing that the spirit of the RDS was adhered to, it would not be a get-out clause for Departments or the Planning Service to ignore the spirit and will of the RDS, with its clearly understood background. It is my understanding that members are content. Are there further questions?
Mr McNamee: The rationale for changing the wording was that, according to legal opinion, the phrase "consistent with" would be unnecessarily inflexible and could create problems in the legislation. It was suggested that the Committee ask the Department’s officials to elaborate on that legal advice.
Mr Gamble: The Department of the Environment has a statutory duty to bring forward land for development in an orderly manner. When the Bill was proposed, the Department was advised that the phrase "consistent with" was too tight. There was no room for tolerance. For example, if 100 points had to be satisfied to prove that a plan was "consistent with" the RDS, they would all have to be met. There would be no flexibility in dealing with practical issues. As senior counsel put it, a plan could be 99% consistent with the RDS but be ruled out because one minor point was inconsistent.
The Department sought senior counsel’s advice on using a form of words that is in common usage in British legislation dealing with the relationship between regional strategies and local development frameworks. The term used is "in general conformity", which allows a degree of realism to apply on the ground while maintaining that the plans must be in conformity with the overall strategy. Counsel believes that the wording will allow reasonable flexibility, but the integrity and the overarching authority of the RDS will not be impugned in any way.
Mr McNamee: Were examples given of how difficulties could arise in the legal interpretation of the restrictive nature of the term "consistent with"?
Mr Gamble: The literal definition of the term "consistent with" would be restrictive. The Committee is keen on the brownfield approach and sequential approach, integrating transportation and the importance of ensuring that you integrate land use with economic development. All those matters could be dealt with in a plan. The RDS was perhaps less of an issue, and it could put the plan out of kilter. The Department would wish to avoid that if the spirit, key objectives and guidelines were addressed in a plan and if all the right things were being done. It would give a degree of flexibility, provided that the key issues were in place to meet the objectives of the RDS.
Mr Ervine: I was conscious that the Planning Appeals Commission or the Royal Town Planning Institute was hung up on the change. My difficulty comes later in the Bill where the determinant of the issues will be the two Departments. An individual expecting an appeals process to be fair and reasonable could see that appeals process being rolled over. There is no higher authority than the two Departments, which have managed to achieve flexibility with the use of that language and then guarantee that only on their terms.
The Deputy Chairperson: We shall discuss that after we have finished with clause 1. Are colleagues happy that this is an exceptional power to provide flexibility? We should not expect the RDS to be manifestly ignored.
Mr Ervine: With respect, I am not sure that I can live with that. One has an effect on the other if such flexibility is introduced and the mechanism for appeal is diminished. In other words, if we guaranteed that keeping the previous wording would make it very restrictive, it would be more difficult for the Department to do what it wanted legally. It is a serious matter if we diminish or increase the Department’s flexibility and diminish the appeals process. I can concede if a proper and fair process follows it, but when we get through the Bill we shall find that the things that upset us will not have changed.
The Deputy Chairperson: The logic of the point is that if you use the words "consistent with", nine out of 10 requirements for the RDS could be correct and a minor one incorrect. If you had the legal wording "consistent with", that could torpedo the whole thing. As a stand-alone logical point, it seems to make sense to introduce that flexibility.
We shall fight the battle on the other matter in a moment or two. There seems to be sense in allowing the change on its own merits. Do members understand the logic behind the change of wording in clause 1? It is without prejudice to further discussions.
Question, That the Committee is content with the clause, put and agreed to.
Clause 2 (Development plans: statement as to general conformity with the regional development strategy)
The Deputy Chairperson: That gives us the option of having a second bite of the cherry. After you left last week, the Committee discussed the logic of this clause. Members were confused, since on the one hand the initial report seemed to suggest that the Department for Regional Development was an objector, and the second report was simply restating that. That implied that the statement did not give you a second bite of the cherry, for it had no separate punch; it simply reiterated your original view.
We subsequently thought that there was a bit of punch to the second, which is what others were saying, and that it would have allowed you two objections. However, we almost pretended that the second statement was not an objection, but really it might have been. We asked you to talk to the Planning Appeals Commission and to Mr John Warke to see whether we could agree that there was no doubt at all about the system and the relative weight of those objections. We also wanted to know whether the objections being raised might be overcome. It would be helpful if you could report your discussions.
Mr Gamble: There are many objections. Mr Raphael, Ms Mossman and I had a productive meeting with Mr John Warke and colleagues yesterday. Mr Warke said that he fully understood what we sought to do with the statementing procedure. In the case of a statement of non- conformity, the first declaration is potentially an objection duly made, in which case we should be party to an inquiry, as would others. Mr Warke also fully understood and confirmed with us that the conformity issue would be debated and that the commission would almost certainly raise it at the inquiry. We agreed about that.
The point at issue is the second part of that. It may well be upwards of two years before the inquiry team, which has been involved in planning, could draft a plan. The Department of the Environment must examine all the evidence, reports of discussions and the inquiry report. Under present law, the Department will then be able to decide on the plan and accept the material planning considerations raised. Indeed, Mr Ervine and others rightly raised those.
In those circumstances, as protector of the RDS, and being statutorily responsible for upholding its guiding principles and its implementation, our view and that of senior counsel is that it is not unreasonable for us to comment before the Department of the Environment makes its report. As I say, that will be one and a half years or two years after the first statement, in which we offered a view along with others, was produced.
It is clear that the second statement is not an objection. It is, as the Committee agreed, part of the double-locking mechanism of ensuring that everyone fulfils their obligations under the RDS. That is necessary where the time lapse is long. I understand Mr Ervine’s point about challenging the planning decision in relation to points made at the inquiry. In response — and separate from our statement — I can say that people can challenge it, but the Department of the Environment would make the decision. That is in no way fettered by the second statement; however an assurance is provided to the House and to the Committee as to whether the plan is ultimately in conformity. Our view will be expressed. Although that is not determinative, it puts further pressure on the Department of the Environment to fulfil its obligations.
The Deputy Chairperson: It is a confirmation of your original view with no legal standing.
Mr Gamble: Had there been changes to the original view, it might have been different.
The Deputy Chairperson: Do you mean if you said it was in conformity?
Mr Gamble: Yes, or if, in the first instance, it is not in conformity. The Planning Service has made moves to take on board the very points that Mr Ervine made.
The Deputy Chairperson: Technically, therefore, it is in conformity.
Mr Gamble: Yes, a statement could be made that, having regard to all the considerations —
The Deputy Chairperson: Saying that it is not in conformity simply restates your original position.
Mr Ervine: It is clear that there must be a guardian for the RDS. There must be an engine and someone to guarantee forward movement in line with what we originally wanted. That is all right; however, my difficulty is with the people who argue that that is not a good idea. We end up with two Government Departments: one the decision-maker and the other the largest decision-influencer. A machiavellian argument might be that it comes down to a political issue which would affect the RDS, planning or whatever is going on. We do not know what happens in those places. There is no question that today the two Ministers and their Departments are magnificent in everything that they do; however, that may not be the case in subsequent years. We, however, shall have set down — effectively on tablets of stone — mechanisms that could be abused. We as politicians know the outdated and pathetic attitudes surrounding planning issues, and along comes a new, vibrant and dynamic strategy. I am all in favour of the strategy, but it is not fair to give two Government Departments unfettered power to decide. I know that you are being very clear and precise that one statement concerns potential objection and the other is a statement of opinion. As I said last week, try telling me that the statement of a Minister or a Department carries less weight than that of a punter. It does not, and we know that. A Department influences the decision-making process, and the decision is made by a Department, even though we know that there are problems with that.
The Deputy Chairperson: Is your discussion centred on the system for the Planning Appeals Commission? It seems to concern the system being wrong in planning and Department of Environment business rather than the issue in question.
Mr Ervine: Taking the second statement out cures the problem. Two Departments can get the decision that they want in smoke-filled rooms rather than in public circumstances. The Department’s second statement guarantees that greater weight will be placed on what it thinks, as opposed to anyone else’s opinion.
The Deputy Chairperson: That does not matter. It is a restatement of its first position.
Mr Ervine: Not necessarily.
The Deputy Chairperson: One of our difficulties in operating as the Committee for Regional Development is that we are charged with protecting the RDS. Therefore regardless of the rights and wrongs, we need a planning system that protects the RDS. If the second statement had full legal weight, I should agree that it might well be unfair. However, we have had assurances that it is simply a restatement of the Department’s first position. We are being told that it is an opinion rather than a determination.
Mr Gamble: It could be a restatement of the first position, and it could be different. If a plan were in conformity and we confirmed that, it would be a restatement. If it were not in conformity and we confirmed that, it would also be a restatement. However, the first statement might say that a plan was not in conformity, and others might challenge the change which brought the plan into line with the strategy, as Mr Ervine pointed out. That is a wholly good thing. The reverse is equally possible, where it could spin out of conformity. In those cases, the second statement is only an opportunity for us to offer a second opinion.
The Deputy Chairperson: The difficulty is if the second statement overturns the non-conformity —
Mr Gamble: It cannot do that.
The Deputy Chairperson: Sorry, if the second statement now says that the plan is in conformity, no one will object because it is good that it conforms, and we are all happy. You have raised an interesting discussion point for the first time, which is that if your determinative statement is that there is conformity, and something gets out of kilter —
Mr Gamble: That would be an exceptional situation.
The Deputy Chairperson: Absolutely, but the legality is important. If the plan ceases to be in conformity, your second statement is not simply a restatement of your first; it is a contrary opinion. You are saying that it does not matter because it is an opinion without legal status. You would not expect anyone to pay any attention to it if it ceased to be in conformity.
Mr Gamble: No, I want to clarify that point. The Department of the Environment must take account of the second statement. According to the Bill, the Department of the Environment must consider that. That statement cannot be determinative; otherwise we should be infringing the jurisdiction of another Department. However, it is an opinion at that stage on whether, in our view, the plan is still or has become in conformity or otherwise. Ultimately, the Department of the Environment must make its decision as the planning authority in the light of that second statement and all other material considerations, including the report and the objections raised during the inquiry.
The Deputy Chairperson: So it does have weight?
Mr Gamble: Only in that the Department of the Environment should take account of it.
Mr Ervine: The Department of the Environment cannot make a judgement without hearing the second opinion.
The Deputy Chairperson: Yes. We are losing sight of the initial idea that it was simply an opinion — a restatement of the first one. We have now hit a set of circumstances where, technically speaking, we could suddenly find that what was in conformity is no longer so. You have made a statement of which the Department of the Environment is required to take account. Therefore that second statement seems to have some legal effect. Is that correct? I am confused.
Mr Gamble: You are absolutely right. We could have a situation with the second statement where, for whatever reason, something has changed. For example, we could be at one with views held by the planning inquiry and by parties to it in relation to the plan at that point. However, the Department of the Environment must deliberate on the inquiry’s report. It could take a different view, although one would hope that that would not be the case. The second statement is for us to express a view of the plan to be adopted by the Department of the Environment. That is the double-locking nature of the statement on procedure, which protects the authority of the RDS.
Mr Byrne: One of the concerns about the Bill is that two key central Departments — the Department of the Environment and the Department for Regional Development — will be in charge of shaping local development plans. If the terminology is loosened to read "in general conformity with", local development plans may deviate from the RDS, and things could get out of kilter. The local district council is an accountable, democratic organisation that serves the interests of individuals, interest groups and the community. My concern is that it will have no legal recourse or input and will be unable to make a statement on the outcome of a local development plan. I raised that issue two weeks ago; however, reading from the minutes of the meeting last week, which I was unfortunately unable to attend, I am not sure whether the correspondences from the Committee to the Department were coterminous with my sentiments. Local development plans involve one district or, in some cases, two districts. For example, a plan will be developed in West Tyrone for both Strabane District Council and Omagh District Council. One of the concerns for rural district councils is that urbanisation in housing development might be over-emphasised. If the Department of the Environment and the Department for Regional Development were the sole legal guardians of the form and implementation of local development plans, the interests of those with rural sensitivity could be marginalised. I am concerned that the Bill is too heavily weighted towards the interests of central Government Departments.
Mr McNamee: The second statement will not be treated as an objection, even if it is a statement of non-conformity. Only in exceptional circumstances will the first statement be one of conformity and the second statement one of non-conformity. If that is the case, and the Department of the Environment must consider any statement received from the Department for Regional Development, what requirement does "shall consider" in clause 2(8) place on the Department? Can the Department simply say that it has considered the statement but has decided to make no change, or must it respond in detail to justify its decision?
Mr Gamble: I hope that the Department of the Environment will never be put in that position. However, if it were, it would have to justify its decision to depart from the strategy. It would have to make the reasons known and publish documentation. To move forward it would have to be able to defend its reasons for having one or two yellow cards against the plan. It is hoped that that will not be the case. Mr Raphael has been working to agree a protocol with the Department of the Environment, so that at key stages we can discuss with it what must happen to ensure that the plan converges with the policy impact of the RDS. Those discussions will take place before the draft-plan stage, when the Department of the Environment initiates the draft-plan stage and at critical points subsequent to the inquiry point, at which the Department for Regional Development tracks to ensure that the plan’s progression conforms with the RDS. That protocol arrangement with the Department of the Environment, which was rehearsed in the House, will ensure over time that plans are in line rather than diverging.
Ultimately, in the light of the report from the inquiry, the Department of the Environment is the planning authority and must defend its actions with, perhaps, a second non-conforming statement.
Mr Byrne is correct about the councils’ role at inquiry. Councils are there either in support or to object. The role of the Department for Regional Development at the inquiry is no different. The Department will give its opinion on the plan and, presumably, the council will have been in detailed discussions about it. It is hoped that the views of the Department of the Environment and the council will be reflected in the draft plan. We foresee that the second statement will be somewhat different, and very much outside the inquiry. It is the final point at which the Department for Regional Development confirms or expresses a view on a plan before the Department of the Environment fulfils its statutory duty.
Mr Ervine: That is what makes it absurd. The original statement of objection is reinforced by saying that what has been said, proposed and advocated is not good enough to fit into the Department for Regional Development’s plan. The Department of the Environment will know that the Department for Regional Development is saying "no". However, the Department for Regional Development may then say that adjustments have been made and that there has been dialogue, so its response changes to "yes". It could be argued that, on a nod and a wink, the Department is given an advantage over everyone else and, in respect of a development plan, that could be the whole population of a town or a region. Am I correct?
Mr Gamble: I hear what you say, but I disagree. I hope that I have not hinted that collusion occurs. In good government it is important that the two Departments work together because they are custodians of the RDS and the deliverer of modern planning. It behoves us, as the authors of the RDS, to put in place the key planning policies to ensure that we have good development plans. The Department of the Environment has a statutory duty on plan-making, and the Department for Regional Development has a statutory duty in relation to the RDS; there is a degree of complementarity about how we move forward.
The second statement is an opinion from the Department for Regional Development expressed before the Department of the Environment fulfils its statutory duty. Two or three years might pass between the draft-plan stage and that stage. Things can change. It is important that we be allowed to express an opinion on that second statement before a plan is made.
The Deputy Chairperson: I sense that the Committee is uncomfortable with this. More deliberation and consideration is required. After Mr Hussey speaks, I shall put the question, which I expect to be negatived. It is likely that the clause will be referred for further consideration. In that case we shall consider the remaining clauses.
Mr Gamble: I am unsure about how the Committee deals with clause-by-clause scrutiny. Would it be helpful if there were no difficulty with the first part of the clause?
The Deputy Chairperson: No. The clause must be agreed in its entirety.
Mr Hussey: Two different Departments have different outlooks on the RDS. One regards it as aspirational, the other as prescriptive, and the two clash. Further to Mr Byrne’s question, is local authority input regarded as being within the Department of Environment’s remit? Can it, therefore, as Mr Byrne suggested, be dealt with through legislation?
Mr Raphael: Mr Byrne raised a good point about the role of district councils. District councils currently have a clear role in the preparation of development plans. For example, a steering group has been set up for most development plans so that councils have an input. If councils so desire, they also have a role in public inquiries. Councils can make representations on draft plans, as can anyone else.
Councils have a role to play in plan preparation through the existing procedures set up in the Department of Environment, and they avail of the opportunity to be proactive. That too is in the context of the role that the RDS must play in a development plan.
Mr Byrne: The most crucial details are put together at the finalisation stage of a local development plan. In the interests of making a Strategic Planning Bill fair and balanced for central and local government, a district council should be allowed a formal input into representations at that final stage, if it so wished. That is a change from how things have previously been done; however, this is a new game.
If a local development plan is to mean anything, it must have some balance between local interest and central departmental interests. We seek implementation within the parameters of the RDS. However, the local implementation of the RDS will ultimately be through local development plans. Given that we want five-yearly reviews of the RDS, it is not unreasonable to provide a local authority with a formal mechanism whereby it can intervene at that last hurdle before the local development plan is finalised.
Mr Gamble: I have one point to make before you put the question that the clause be agreed. Does the Committee believe that there should be a mechanism to give the parties that originally attended an inquiry the same opportunity afforded to the Department for Regional Development to comment at the second point in the timescale outlined in the Bill? To ensure that the proceedings are fair, there would be no special treatment, but others who were involved in an inquiry would also, as Mr Byrne said, have an opportunity to make a final representation.
The Deputy Chairperson: It was felt that the Department for Regional Development had two bites of the cherry. People may be content with that, but we must mull it over because of the probable legal implications. Of course, a planning difficulty at the moment is the argument that third-party appeals should be allowed. It is concerned with the appeals mechanism, and the Committee must think about that a little more.
Mr Gamble: I must refer the issue back to the Minister.
Question, That the Committee is content with the clause, put and negatived.
The Deputy Chairperson: The Committee is unhappy. Therefore I propose that the Committee task its research organisation to do a brief on the issues that have been raised and their impact, and that it regroup when the implications of clause 2 are clearer.
Clause 2 referred for further consideration.
Clause 3 (Regional Development Strategy: transitional arrangements for certain development plans)
The Deputy Chairperson: Clause 3 makes arrangements for three development plans that were at draft stage before the formulation of the RDS on 20 September 2001. The following development plans will be treated as "excepted plans": Craigavon Area Plan 2010; Cookstown Area Plan 2010; and Dungannon and South Tyrone Area Plan 2010. The statement of conformity procedure in clause 2 does not apply to "excepted plans".
Do Members have any comments? These plans, because they were being formulated, were left out of the RDS. Part of the reason for that was that it would allow the plans to be slightly different than in conformity with the RDS.
Mr Bradley: If we are to review clause 2, how can we talk about it now?
The Deputy Chairperson: The statement of conformity procedure in clause 2 does not apply to "excepted plans".
Mr Ervine: Why not?
Mr Gamble: It is a transitional arrangement, whereby the plans are exempt. When the plans are reviewed and amended in the future, the provision will bite on. However, those plans are the only plans that will be made and, therefore, it is wholly reasonable to make an exception.
The Deputy Chairperson: It is fair to say that they are out of kilter with the RDS. They were drafted before the rules of the game were decided.
Mr Byrne: Members know that the area plans for Cookstown, Craigavon and Dungannon and South Tyrone have been finalised. Clause 3(2) states that
"Section 2 does not apply in relation to the making of an excepted plan."
Are those plans, which are in their early stages, expected to be in conformity with the RDS?
Mr Gamble: The law states that they must be consistent. If the Bill is passed before the Assembly is dissolved, it will bring in a new arrangement that they would be required to meet.
Mr Byrne: In other words, they must be in general conformity with the RDS. Let us say that the Bill is enacted within six months. Will the finalisation of those local development plans have to be in relation to the new Bill when it is enacted?
Mr Gamble: Yes.
Mr McNamee: Am I correct that only three plans have been excepted on the basis that the work was at an advanced stage, and that to bring them under the conditions of the Bill would have created difficulties and negated a great deal of work?
Mr Gamble: The Bill makes provision for those three only.
Mr Hussey: My point concerns the impact on neighbouring areas. Mr Byrne mentioned the West Tyrone area plan. I looked at the plans for Cookstown and Dungannon and south Tyrone and, although I am not being parochial, deviations from the RDS that may already exist in those plans could have a knock-on effect on the West Tyrone area. How can that be dealt with? Can a neighbouring area that would be affected by something that already exists within an exempted area balance it?
Mr Gamble: That is an important point. Even if those plans are exempt, it is important that we manage them in such a way that they conform over time to the RDS, and that they do not have the impact that Mr Hussey is concerned about. Mr Raphael has a key role in ensuring that we reduce the potential impact of such plans. That is critical.
Mr Raphael: In developing the protocol, the Department of the Environment must consider that question, and there should not be a knock-on effect. Although those three plans are excepted at the moment, they are at a stage where the Department of the Environment might alter them. The issue of conformity clearly comes into play. There is an onus on the Department, as of now, to manage the situation even in developing those plans.
Mr Gamble: The whole statementing procedure is critical to managing that.
Mr Hussey: I am glad that that is on the record.
Question, That the Committee is content with the clause, put and agreed to.
Clause 4 ( Short title and interpretation)
The Deputy Chairperson: Do members have any comments on clause 4?
Mr Hussey: The brackets are in a different place.
The Deputy Chairperson: The staff will be lashed afterwards.
Question, That the Committee is content with the clause, put and agreed to.
The Deputy Chairperson: Thank you for bearing with us. We shall try to clarify those issues so that everyone is comfortable. There is no point in continuing without common understanding.
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