Members present:

Rev Dr William McCrea (Chairperson)
Ms Lewsley (Deputy Chairperson)
Mr Armstrong
Mr A Doherty
Mr Ford
Mr McClarty
Mr M Murphy
Mr Poots
Mr Watson

Witnesses:

Mr D Small ) The Department
Mr I Maye ) of the Environment

The Chairperson: I welcome Mr David Small and Mr Ian Maye from the Department of the Environment. They will give a presentation, after which Members can ask questions.

Mr Maye: I thank the Committee for inviting us here. It is a pleasure to reach the stage of presenting a Bill to the Assembly, because it seems to be a long time since we first discussed this issue last June. We have achieved our set target, which was to bring the Bill to the Assembly before the summer recess. We are now on target to have the Bill introduced on 10 June, subject to the Speaker’s clearance. He received a letter this morning, and we do not foresee any difficulty.

The Chairperson: It is of course also subject to clearance of the Committee.

Mr Maye: Absolutely.

The Chairperson: Do not take anything for granted.

Mr Maye: I will now bring you up to speed on how we reached this juncture, and what we intend doing now. I will then pass over to Mr Small, who will talk in more detail about the timetable for the rest of the Bill.

We received Executive Committee clearance to introduce the Bill yesterday, which is why we were able to go to the Speaker overnight, and also the Secretary of State’s clearance for the current provisions. As you saw from the letter, the Minister has entered into discussions with the Secretary of State on issues that this Committee has raised regarding higher fines in Magistrate’s Courts, creating a new offence of commencing development without lawful permission, and third-party appeals. Although we do not require the Secretary of State’s consent, there is a wider UK interest, since what we do will inevitably influence the other jurisdictions.

The Minister has briefly discussed the principle with the Secretary of State, who now wants concrete evidence and details. That is the process in which the Minister and the Department are now engaged. Over the next few weeks the Minister would like to engage further with the Committee, particularly on higher fines, but also the creation of a new criminal offence. As you know, we are committed to bringing a paper on creating the new criminal offence to the Committee before the summer recess, and we are actively working on it. We want to have the final version of the Queen’s University research so that we can polish up the Bill for the Committee. However, we are certainly on target to deliver it before the summer recess — hopefully, as soon as possible.

We want to engage with the Committee on the correct level of fines. At present we are aiming for £20,000, but the Committee has expressed its concern that the figure is too low. Indeed, the original level of £20,000 was set back in 1991, and we will need to take such matters as inflation into account. The Department will soon put a short paper to the Committee on how we might assess the appropriate level of fines in the Magistrate’s Court, bearing in mind our commitment to take cases to the Crown Court where appropriate, an arena in which there will be no limit on what fines may be imposed. We wish to strike a balance and are aware of the Committee’s concerns, as is the Minister. He is sympathetic to those concerns, and has informed the Secretary of State as such.

At present we are on target to introduce the Bill on 10 June 2002. If we do so, the Second Stage debate may take place on 24 June. Procedures recently agreed by the Assembly would mean that the Bill goes straight to the Committee after the debate on 24 June, so you will receive it before the summer recess. We forwarded a draft of the Bill last week, since we were keen for you to see it before its introduction. We also thought that it would be useful for you to see the letter to the Secretary of State; indeed, we agreed that when we last met.

I have talked about the higher fines and the proposed new offence. The Minister is sympathetic to the Committee’s wishes, but wants to discuss the detail, which is why we are bringing forward a paper. The Department is also committed to bringing forward a detailed policy paper on third-party appeals before the summer recess, and we are engaged in discussions with the Minister on what that paper will cover. We await the final report from Queen’s University to refine the paper, but once we have done so we aim to present it to the Committee as soon as possible — certainly before the summer recess. When we provide the papers on the new offence and third-party appeals, we also will provide the Committee with copies of the Queen’s University research so that you have all the information to hand when considering the issues. When we have done so, we will be at the Committee’s disposal to discuss the issues. The Minister has also made it clear that he wants to work with the Committee on these matters.

Mr Small: I have nothing particular to add on the wider issues that Mr Maye has covered, except to explain the anticipated timetable for the Bill. Mr Maye has indicated that the Bill may be introduced on 10 June, and the Second Stage would then be anticipated for 24 June, but that has to be confirmed. It would then pass to Committee Stage and, depending on the duration of that stage, we would then hope to reach Consideration Stage around October. It is difficult to judge how long that process will take, but we would aim to reach Final Stage of the Bill by December or early January 2003, in time to allow Royal Assent to be secured before Assembly is dissolved in advance of next spring’s elections.

The Chairperson: This is heavy stuff, and we must ensure that we are getting this right. With the greatest respect, there seems to be great haste, which can sometimes lead to bad examination. You may have your timetable set, but we must get this right because we have a very important duty to fulfil.

Mr M Murphy: I have great difficulty with the £20,000 fine, considering that an entire block of terraced houses was demolished in Portadown. Under the present legislation, how many enforcement actions have been taken, and what way were they dealt with through the courts?

Mr Maye: I will write to you with the precise figures. With regard to enforcement action, the Planning Service deals with about 1,500 cases a year. Most are resolved through negotiation, and the developer puts right what has been done beyond the terms of his planning permission, or does things that he should not have done. Around 50 formal cases are taken each year, and a proportion of those end up in court. The aim of taking enforcement action is to put right what has been done, and, in the majority of cases, we can achieve that without taking people to court. In some cases, however, it is necessary to do so. I will write to the Committee with the precise figures.

Mr M Murphy: If a developer demolishes a row of terraced houses, he is fined £4,000 or £5,000, but there is no way that the houses can be replaced.

Mr Maye: It is absolutely clear that the fine levels being imposed and the maximum fine available to the Magistrate’s Court do not match the gravity of the offence or the value of the property that has been destroyed. One of our key aims is to give magistrates more leeway to issue higher fines.

We want to take cases to the Crown Court, as some cases must be treated very seriously. The Planning Service was reluctant to take cases to the Crown Court in the past, but the Department is determined to address that. It is important that the Department sends out the strongest possible message to developers and others — if they mess with the system they will get their fingers burnt.

Mr M Murphy: Your recommended figure is over £20,000, but this has not been stated clearly.

Mr Maye: The Department does not yet feel that it is a position to state it clearly, which is why we want to engage further with the Committee to identify what level of fine we should aim for. You have made it clear that £20,000 is not high enough, so what level of fine should we aim for — £30,000, £40,000 or higher? We must bear in mind that the Department intends to take cases to the Crown Court, where there will be no limit to the fine. The Crown Court will be able to set a fine at whatever level it sees fit. In doing that, it will have to consider the profit that has accrued to the developer by his committing the offence. That is important, because in some cases — the case that you cited is a good example — developers can make several hundred thousand pounds or, in some cases, several million, and a fine of £20,000, £30,000, or £40,000 will not make a dent in their profit.

Mr Small: As well as higher levels of fines, the Bill also proposes the introduction of custodial sentences in cases where listed buildings are demolished. It is hoped that the risk of a custodial sentence will carry more weight, and be a greater deterrent than the higher fines.

Mr Maye: Another issue is the attitude of magistrates and the judiciary to the cases, and recent evidence suggests that the attitude is beginning to change. In the dark days of the troubles, magistrates believed that this type of offence was not that important in the grand scheme of things, but that is changing. In a recent case in Rostrevor, a magistrate imposed the maximum fine of £5,000. He said that he would have imposed a higher fine had he had the authority in statute to do so. Magistrates are taking cases more seriously than they would have done before.

The Chairperson: For clarification, the letter that we received from the Minister contained no evidence that he had asked the Secretary of State to consider fines higher than £20,000. Can you show the Committee the relevant paragraph? The letter states the opposite as it says "up to". There is no mention of fines above £20,000.

Mr Maye: The letter had two purposes. One was to secure clearance for the provisions that are already in the Bill, which was necessary for the Department to bring the Bill before the Assembly. The Minister decided to take it in two bite-sized chunks. His first aim was to get clearance for the current provisions in the Bill, which he has agreed. Secondly, in the final paragraph, he wanted to raise the broader issues that the Committee is concerned about, and on which he has views, such as fine levels, the new offence, and third-party appeals.

He decided to divide it tactically into two stages. First, he would discuss the principles with the Secretary of State and bring to his notice the Committee’s concerns and the views of other Members of the Assembly, which had been raised with him in general correspondence. He also wanted to sound out the Secretary of State on the principle of going beyond parity with England and Wales — a point that we have discussed with the Committee previously. Having done that, and judged whether the Secretary of State was warm to the idea, the Minister will now consider concrete proposals. Those proposals are not, and cannot be, on the table at present, because the Department has not decided what they should be. The Department and the Committee must agree the level of fines we are aiming for, and why, so that we can put the case to the Secretary of State.

If a new criminal offence is created, there should be agreement on what that offence should be, what it should cover, what the fines and penalties should be, and in what circumstances it should be applied. That is essentially the Minister’s tactic in approaching the Secretary of State about these issues, and I re-emphasise that he wants to work with the Committee on these issues. When he goes to the Secretary of State he wants to put a good case — one that commands the Committee’s agreement and support.

The Chairperson: Is the Minister making the case on your acknowledgement that the situation in Northern Ireland is radically different?

Mr Maye: He has made the case that there is strong feeling on these issues across Northern Ireland that will not go away. The public, the Assembly and the Committee for the Environment feel strongly that we should be doing these things.

The Chairperson: You want the Committee to set a figure. From the example that you got this morning, you should know that the Committee could not set a figure for that. Surely a court must be — not may be — made to take regard of the financial benefit. It would be useless for the Committee to set a figure of £35,000 if someone earned £1 million. Rather than tying a court to a maximum, the judgement must consider the financial benefit.

Mr Maye: We are proposing that for the Crown Court.

The Chairperson: I am not talking about the Crown Court; I am talking about the Magistrates’ Court. Why can it not be included in the legislation?

Mr Maye: The cases that go to the Crown Court will be included in the legislation. We must take those cases in which the developer stands to make a profit of £1 million out of the Magistrates’ Court and into the Crown Court, so that the Crown Court can look at it seriously and set the appropriate fine.

In the UK justice system, magistrates are given a fine level to work with, and, until now Magistrates’ Courts have traditionally had limited powers. That reflects the nature of the cases that should be brought before the Magistrates’ Court. If they are sufficiently serious to attract a very heavy fine - [Interruption].

The Chairperson: The number of cases that the Department has taken to any court does not give us confidence that any other cases will reach the Crown Court. Frankly, if a case gets to the Magistrates’ Court, the Committee would like to know that the person will not get a mere rap over the knuckles, but something that they will fear. It is hard enough getting the Department to bring a case to the Magistrates’ Court, but it is another matter to promise the Committee that all will be well when it gets to the Crown Court. I am not confident about that.

Mr Armstrong: It should be calculated on a percentage basis of the value of the property.

Mr M Murphy: In Rostrevor, the contractor was fined £5,000. The same contractor paid £80,000 to the resident to knock down her garage. This issue must be tackled seriously.

Mr A Doherty: You mentioned three policy papers setting out your position on enforcement liabilities and third-party appeals. When do you expect those to be available, and to whom will you make them available?

Mr Maye: We will give them to the Committee. We are committed to doing that before the summer recess, but I want to have those papers with the Committee within the next couple of weeks, to give you an opportunity to consider them before the summer recess.

Mr A Doherty: I asked because the Committee must also examine the consultation on ‘Modernising Planning Processes’, and the deadline for that is 14 June. Could you meet that date?

Mr Maye: I cannot commit to that, because we are still waiting for the final report from Queen’s University. We want to see their final report so that we can build any of that evidence into the papers that come to the Committee. We will present you with the best possible case.

The Chairperson: Being honest, you are not going to introduce it in this Bill.

Mr Maye: I would not necessarily rule that out.

The Chairperson: This Committee forcefully holds this view. It may be just starting to percolate into the Department, but make no mistake; it is not going to go away. The Department can resist it, but the will of the elected representatives will have to be tested and proved if the Department is not willing to deal with that head-on.

Mr Maye: The Minister is under no illusion that that is the case. At present he is not persuaded of the case for the introduction of third-party appeals, but he wants to enter into more detailed discussion on the matter with the Committee. With regard to higher fine levels in the Magistrate’s Court, and a new criminal offence, I would not rule those out. We can bring forward amendments, if necessary, during the passage of the Bill, as can the Committee, so I would not rule those out at all.

Mr Ford: I do not want to go over the issue of the fines again. However, I note in paragraph 12 of the explanatory memorandum that there are likely to be some marginal financial implications for the Department with the introduction of the main provisions. What is the point in having enforcement powers, or talking about taking matters to the Crown Court if you are only talking about marginal financial implications? It sounds to me like the Department is not going to take the matter seriously, even with these powers. Surely the point of having these powers is to make use of them. We have had enough instances highlighted in every part of Northern Ireland of the need for much more action on enforcement powers. You have just been talking about the issue of the Crown Court, so is that not a misleading statement?

Mr Maye: We are looking at the whole structure of the Planning Service — how it delivers its work and its Programme for Government commitments. We will not necessarily need much more resources to do a better job on enforcement. We are looking at the balance of how our work is done, and whether we have sufficient resources within the Planning Service already devoted to enforcement work. The Minister is keenly aware that up until now we have not devoted a substantial proportion of our resources to enforcement. This legislation should simplify the whole process, so that with current resources we should be able to do a great deal more because the process will be simpler and more streamlined. It will be much easier to progress, and get to court if we need to get to court. There is an issue about the balance of resources in the existing Planning Service that we devote to enforcement work, and we are working quite actively on that.

In addition, we are currently engaged in a review of planning fees, and propose to bring forward a consultation paper later in the year. We will look at whether enforcement work, or at least a proportion of that work, should or can be funded from the fees paid by applicants. At the moment it is not. The fees cover development control work, but do not cover enforcement, the development of planning policy, or many other things that the Planning Service does. It may well be that we can generate more income through planning fees to devote to enforcement. There would be no greater drain on the public purse if more of the burden were placed on applicants and others. We are looking at a range of issues here.

Mr Ford: In taking that approach, you place more of a burden on those who are going through the planning process properly to deal with those who are making a mockery of the law. That seems to me to be the reverse of what you should be doing.

Mr Maye: We have not reached any decision on the matter, which is why we want to engage in public consultation. However, we are looking at whether we should go along that line, or, indeed, whether we should introduce punitive fees for those who go ahead and commence development without permission. They should pay a higher fee than someone who follows the process.

Mr Ford: That is the exact reverse of what you outlined earlier.

Mr Maye: No. It is one of the options — and they are nothing more than that. Some may be mutually contradictory, but they must all be expounded, discussed and debated with the Committee and the public. We are examining the issue, and you will see what we have in mind when we bring forward the consultation paper. We look forward to the debate.

Mr Ford: Should the concept of punitive fees not be included in the Bill?

Mr Maye: If the policy had been developed, we would have done that. The issue is only now beginning to come to the fore, and it is being explored in Northern Ireland and in England. In England it is part of their review of planning fees. The idea had not been generated before, and would not have arrived in time to build into this Bill, but I should not rule out its being in the next Bill.

Mr Ford: What provisions are there currently for the Department to obtain costs for taking enforcement action through the courts?

Mr Maye: We can ask for costs, and it will be up to the magistrate or judge to decide what costs are awarded against the offender. In some cases they have been awarded, and in others they have not. The judgement is one for the court to make, but we can and do apply for costs.

Mr Ford: It would be interesting to see the current statistics on how successful that has been.

Mr Maye: We do not do very well, since courts and magistrates do not see the Government as needing costs. We press for them in every case.

Mr Ford: Your being so unsuccessful because of magistrates’ failure to impose costs proves the case for punitive fees as an additional statutory measure.

Mr Maye: We need many tools in our armoury to deal with enforcement issues and unauthorised development. That is one of the options that I want to explore with the Committee and the public. The issue is being explored across the UK, and in some other jurisdictions. We should be ready to present proposals for discussion on that and a range of other issues after the summer.

Mr Poots: Mr Ford has taken us well down the road that I wished to take. Where does the money from court fines go?

Mr Maye: It goes back to the UK Government — not the Department of the Environment.

Mr Poots: It goes back to the Treasury?

Mr Maye: Yes. It goes back to the consolidated fund, which is managed by Treasury. We cannot currently get our hands on that money.

Mr Poots: I agree with Mr Ford that it would be wholly inappropriate to increase fees for those making legitimate planning applications to pay for those breaking the law. We should seek some self-sustaining mechanism, whereby the fines imposed on those breaking the law flow back into your own coffers to run the enforcement section properly.

Mr Maye: We shall explore that.

Mr Poots: I look forward to seeing you go down that route.

Mr McClarty: I agree with the provision of third-party appeals in principle, but what do you perceive as the effect of such a procedure on the planning application process? Would it slow it down, and could that be resolved by an increase in fees to enable more personnel to be employed for planning applications?

Mr Maye: We could speed up the initial process to some degree, and that is part of the aim of ‘Modernising Planning Processes’. We also intend to recruit new staff so that we can process more applications, more quickly than at present.

The Chairperson: Cut through some of the bureaucracy.

Mr Maye: You are quite right. There is no doubt that, with the best will in the world, third-party appeals will introduce substantial delays for those cases that are appealed, though not necessarily for the others. The evidence so far from our research in the Republic is that it introduces an average delay of around 11·4 months on top of the time it takes to reach the initial decision. The Committee and the Assembly will need to consider this issue, since it could have a substantial impact, not only on the planning system, but also on the wider economy. By their very nature, applications likely to be appealed by third parties are those that are contentious, and attract objections at the outset. We quite often find that applications that invite objections, and which are considered contentious, are those that will help develop the economy if delivered. However, there is a balance to be struck; natural justice speaks for third-party appeals, which allow everyone a "fair crack of the whip".

On the other hand, we must look quite seriously, not only at the impact of such factors as delayed applications and additional costs on the planning system, but also at the potential impact on the Northern Ireland economy as a whole. Other jurisdictions have designed their whole system around third-party appeals. They have examined the initial process to make it as streamlined as possible. The initial decision is made very quickly, after which the applicant — or the third party — has the right of appeal. In those jurisdictions, the majority of applications are determined very quickly. Those that go to the appeals system take longer, but a balance is struck between the two.

In Northern Ireland we are starting from a slightly different position, since we already have a system in place. That system will be examined as part of the review of public administration, and I have no doubt that the review team will consider this issue, which will generate a great deal of debate. The issue has regularly arisen during my visits to councils in recent weeks. Where should power for development control decisions lie? You can imagine that there are various views on the issue, but it is likely to be considered in the review of public administration. There is an opportunity to examine the fundamentals of the whole system and get things right, moving away from the system introduced in 1973, which moved planning from locally accountable representatives on councils to central government. The issue must be seriously examined as part of the review.

The Chairperson: Of course, if you were the offended person, you would like to have natural justice. By all means speed everyone else’s cases, but be sure that you get justice for yourself. The issue is justice and human rights for all.

Mr Armstrong: Everything in this world has a lifespan. We expect historical buildings to last — to be renovated and remain for ever. Trees too have a lifespan, and some have orders placed on them so that they cannot be removed. However, a tree might only have a two or three year lifespan left, so what do you propose to fine someone if you can determine the life left in a tree? How will you manage that?

Mr Maye: In taking a case to court, we would have to convince the court that the tree was not dead, dying or dangerous, which really depends on the assessment made by a professional arboriculturalist, on whose advice we would rely. If the tree has or is reaching the end of its natural lifespan, that will have an impact on whether we take action against the person who might have cut it down — provided they can demonstrate that. That is part of the equation that the court, and the Department — as a prosecuting authority — would consider in making a decision. That happens at present.

The Department’s suggestion in the Bill is that it is too easy for a person who cuts down a tree to argue that the tree was dead, dying or dangerous, and we want to tighten that up. However, there will be cases where the tree is just about to fall over or has reached the end of its life, and it is perfectly fine to cut it down. The Department wants the landowner to seek permission before he or she cuts it down, because the Department can then consider the evidence presented by the professional arboriculturalist, and make a judgement about whether or not the tree should be cut down.

Tree preservation orders are not necessarily about eternal preservation. They are about the management of trees and woodland. Management takes account of the fact that woodland, by its very nature, changes with time. Trees grow, mature, eventually die and need to be replaced. The orders are the Department’s tools with which to manage that process. There will be occasions when a tree is close to, or has reached the end of its natural life, and may become a danger. In that case, if the landowner seeks permission from the Department to cut down the tree, the Department may grant that permission. However, it may also insist on replanting a tree.

Mr Armstrong: In other words, you are saying that it is not the tree that matters, but the area where the tree should be.

Mr Maye: Absolutely. The character and overall "feel" of the area, and the amenity that it provides to the public are important and must be protected. Trees are a limited natural resource. Northern Ireland does not have many trees, so we should protect the ones we have.

Mr Armstrong: Regardless of a tree’s condition, is it possible that if it comes down another tree may go up in its place?

Mr Small: That is one of the provisions in the Bill. It is designed for that kind of situation, so that the Department can insist on replacement.

Mr Armstrong: On the point I raised earlier, I believe that the fine should not be £20,000, but a percentage of the value.

Mr Maye: The Department will consider that suggestion.

Mr A Doherty: I hesitate to revisit the third-party appeals issue. However, if the planning policies and procedures were clearer and stronger, and less prone to misinterpretation or to a variety of interpretations, would there be less need for third-party appeals? Having a measure for third-party appeals, but also making them less likely to happen through having clearer policies might resolve the problem.

Mr Maye: I think so, because if planning policy was clearer, and if it commanded widespread support — not only among the political community but also the wider community — and if area plans were correct and up to date, there would be much less opportunity for people to disagree with a decision. The Department hopes that, in those circumstances, it would get the decision right first time, and that it would be defensible. I agree that that would make the case against a decision slightly weaker, though not altogether remove it. However, it would be a step in the right direction.

The Chairperson: You mentioned higher fines, and you talked about drawing up a case. Is it possible for the Committee to obtain a draft copy? To date, the Committee has no knowledge of the case being drawn up, and there was no indication of it in the Minister’s letter.

Mr Maye: The Department’s next stage is to bring the case to the Committee for discussion.

The Chairperson: Is it possible for the Committee to obtain a draft soon, so that there can be meaningful discussion? We want to feed in our proposals now rather than at the end of the process.

Mr Maye: Much work needs to be done on higher fine levels, particularly given the points raised today. The Department hopes to present it to the Committee soon. However, in its current state it would not be of much help to the Committee.

The Chairperson: The Committee would like to see the draft as early as possible. We will decide whether it is helpful or not.

Mr Maye: It is hoped that you will have all the papers in the next few weeks.

The Chairperson: I would also like to receive the Queen’s University research as soon as possible.

I want to mention one other thing before we finish. Even though this is an important issue, I am concerned that you have only sent the Committee responses that date from April 1999. There are no up-to-date papers. The Committee has the proposed amendments to planning legislation, and an analysis of responses to the discussion document. There are a lot of them, but what do they mean? In some instances there is a "yes" or "no" with a general comment, but the Committee has no details of what the concerns were or if they were met. It is doubtful whether or not the responses from 1999 are meaningful because they may be out of date. To make a judgement, the Committee requires more detailed comments and documentation with more than a "yes" or a "no". Relevant analysis is required and the Committee must know what concerns were expressed and how they were addressed.

Mr Maye: The Department will work with your officials to provide that. Would it be helpful in the meantime to give you copies of the responses? Some respondents asked for their responses not to be released, but I can give you details on other responses, and then we may work on the broader analysis.

The Chairperson: In these days of open government and freedom of information, I am not sure if such requests for anonymity are allowed. What is good enough for your eyes is good enough for ours.

Mr Maye: As the responses were made in 1999, the people who made responses were entitled to say that they did not want them to be released. The Department must respect that until the Freedom of Information Act becomes fully effective in January 2005. The Department can, if you wish, write to the respondents informing them of the Committee’s request for sight of their response.

The Chairperson: Yes, that would be helpful. The Committee wishes to be sensitive, but we do want the papers.

Thank you for your contribution to this morning’s Committee session.