Members present:

Rev Dr William McCrea (Chairperson)
Mr Armstrong
Mr Ford
Mr Molloy
Mr M Murphy
Mr Watson

Witnesses:

Mr H McKay ) Department of the Environment
Mr D Small )

The Chairperson: Gentlemen, it is a pleasure to have Mr Hugh McKay and Mr David Small from the Department of the Environment with us. Perhaps you will make your presentation on the Planning (Amendment) Bill, Mr McKay. I apologise for the delay — we were dealing with another important matter.

Mr McKay: Mr Chairman, thank you for your welcome. I apologise for Cynthia Smyth and Ian Maye, who cannot be with us today.

The Planning (Amendment) Bill completed its Second Stage on 24 June and is now at the Committee Stage. Next week, officials will be meeting again with the Committee to discuss the details. Our presentation deals with three important aspects of the Bill that the Committee has raised: third-party appeals; dealing with unauthorised development; and the levels of fines. The Committee has received detailed policy papers from the Minister on each subject, which analyse the issues involved and set out the Department’s conclusions and proposals. The Committee has also received copies of research papers commissioned by the Department from Queen’s University on third-party appeals and unauthorised development. These are weighty, and the Department has provided a short summary of the key research findings to assist members. Mr Small will take the Committee through the policy papers and explain the Department’s analysis and conclusions. After that, we will be happy to take questions that members may have.

The Chairperson: Before our meeting this morning, Mr McKay, the importance of having a Bill with teeth was highlighted when a delegation from Holywood Conservation Group brought to the Committee’s attention yesterday’s demolition of Victorian buildings. The group is very angry that present legislation does not allow the Department to take effective action to stop inappropriate demolition and does not allow it to make representations. The demolition was carried out three weeks before the appeals commission could have a hearing. The message must go out that this Committee and the Department are treating that matter seriously and that all efforts will be made to ensure that developers do not go ahead with demolitions or gain financially from them.

I have a great deal of sympathy for a point that was made to us this morning: to prevent developers rushing ahead of legislation, the Department should demand that planning applications be sympathetic to what is already on a site, and it should not facilitate financial gain by developers. I am not making a particular judgement: we cannot do that in this case, because the buildings have been demolished. However, the Department had representations made to it on this and must bear that in mind when development commences on that site. This shows the urgency of the matter, and I hope that the Department will treat the Bill in the same way.

Mr McKay: We appreciate those remarks.

Mr Small: I am conscious of the limited time for the discussion, which has to deal with three heavy papers that the Minister presented to the Committee on 24 June. In his speech on the Second Stage of the Planning (Amendment) Bill, the Minister set out his thoughts and proposals on the issues of third-party appeals, levels of fines and unauthorised development. We shall discuss the papers that the Minister presented in the context of the commitments and proposals that he made. The papers are detailed; I shall go through them as quickly as I can, so that there is sufficient time for questions.

The Chairperson: Even if we cannot ask detailed questions today, it is important to know the Department’s position.

Mr Small: The Minister’s first paper, annex A, was on third-party appeals. It began with some background information on previous considerations of the merits of third-party appeals and referred to the considerations of the 1983 Assembly and the resolution that supported the introduction of third-party appeals. It also referred to the House of Commons Northern Ireland Affairs Committee’s examination in 1996 and the report that recommended the introduction of third-party appeals. On both occasions, the Government of the day decided, because of increased delay, uncertainty in the planning process and resource implications, not to introduce third-party appeals.

In 1999, the Department established a working group to re-examine the matter and decide whether there was a case for third-party appeals. That involved discussions with the appeal bodies in Northern Ireland and the South, the planning wing of the Department of the Environment and Local Government in Dublin and professional colleagues in the North. The group concluded strongly, because of delay and uncertainty, that third-party appeals should not be introduced.

The Department then commissioned further research from Queen’s University. It was asked to examine in more detail how third-party appeals operate in the Republic of Ireland; how successful the system is there; and what the downsides are. Its report contained several conclusions and was presented to the Committee some time ago. It said that third-party appeals are well accepted in the South and part of the system there. However, planning decisions take about 11 months longer because of them, and that is a disadvantage.

Another comment in the report, which we think fundamental, is the suggestion to retune the system here rather than just add third-party appeals, the point being that our planning system is entirely different from that in the South. The South has a plan-led system: applications received are determined against the plan. If they accord with it, they are approved; if not, they are rejected. Any safeguards lost at the early stage through lack of consultation or participation are captured through the appeal system. The report concludes that the system in the South almost demands third-party appeals. It also says that because we have a more consultative and participative process at the early stage, we need to think carefully about attaching another process at the end.

We have discussed that with the Committee and are conscious of members’ views on how effective the early consultation stage is. We are looking at all these matters in the context of modernising planning. Research shows that we need to be careful about how we introduce third-party appeals. If we simply tag them on, we will damage the process. Rather than do that, we need to review the planning process and retune it to accommodate third-party appeals.

We asked for further research from Queen’s University this year and received a report earlier this month. It focused more on how third-party appeal systems operate in other European jurisdictions, and there was a wide range of findings. There are third-party appeal systems in some form in almost all European jurisdictions — however, the way in which they operate varies widely. In Denmark only environmental decisions are subject to third-party appeals and only environmental bodies have the right to a third-party appeal. On the other hand, the Republic’s system permits almost anyone to make such an appeal. The report concluded that individual third-party appeals provisions are based around the policy objectives of such a facility. In Denmark, the clear objective is environmental protection, so the focus is on environmental decisions and watchdog bodies. The Southern system seems to be based on natural justice and equity. So, research suggests that we must be clear about why we want to introduce third-party appeals before thinking about how a scheme might operate, and there is a wide range of models and options.

That is the background, and those are, very briefly, the kinds of considerations which have been made on the subject in past years. The Minister’s paper detailed the benefits of third-party appeals and was informed by the Northern Ireland Affairs Committee’s report, by Queen’s University’s research, by further work we did in the Department and by views given to it on the subject. It was thought that the proposal would be warmly welcomed by the Assembly, other elected representatives and the general public. Essentially, the benefit is that it provides objectors with an alternative means of challenging planning decisions, adds to what is currently available and remedies the perceived inequity in the system whereby applicants can appeal but those who oppose a development cannot. The research from Queen’s also suggested possible wider benefits for the environment, since the third-party appeal process itself might take better account of some of the environmental downsides, resulting in more balanced development.

Giving factual information, the paper also set out the potential disadvantage of third-party appeals — the possible threefold or fourfold increase in appeals which such a process would encourage. The estimate suggests 600 to 700 additional appeals per year, which would have resource implications. The Department anticipates possible difficulties recruiting staff to run the system, since we are not at all convinced of the market supply of qualified planners.

Queen’s University’s research suggested a delay in the system of 11 months for an average planning application going through the process of third-party appeal. There is also the fact that any planning approval would be subject to at least some delay, since a period is set aside for third parties to come forward. Developers and house-owners might get planning permission but be unable to proceed until the period during which third parties could bring forward an appeal had expired. That could vary, and some of the work we have examined suggests a period of six to eight weeks, so there could be a two-month period during which house-owners who had planning permission to carry out work on their properties could do nothing. If the decision was appealed, that period could extend to 10 months. The French system allows three months, and research shows that a third-party appeal can take two or three years extra before a final decision is reached.

Those are the kinds of problems that would cause delay and uncertainty in the system for house-owners, applicants, developers and those wishing to invest in Northern Ireland. The Minister’s paper refers to other issues such as additional costs to third parties and applicants — the cost to applicants of having a land bank while they wait an extra year for a decision, the business costs entailed and the possible disincentive for developers or investors. It examines the possibility of third parties abusing the system to delay development. There is evidence in the South that serial appellants challenge everything from a particular developer, perhaps someone in Monaghan, appealing regularly against developments in Cork. Do we want that here?

Finally, there are the implications for current efforts to improve the planning process. Through modernising planning, we are working hard to improve efficiency in decision-making. That is one of the Programme for Government objectives, and we predict tensions if third-party appeals are introduced which will create delay. The paper examines the existing procedures to try to accommodate third-party appeals and our recent efforts to improve those processes through more open filing. Objectors can look at the file and see how their objection was dealt with. They can also object through neighbour notification, public advertisement and the other ways that you are aware of.

The paper also looks at the position in England, Wales and Scotland, and those systems are completely opposed to third-party appeals. The recent Green Paper in England stated that the Government were not convinced of the arguments for third-party appeals and believed that the way to deal with the interests of third parties was to make the system more open. In the South the Government had concerns about serial appellants and delays. Over the past few months, they have sought to restrict their system and have concluded that the very open nature of their third-party appeal system was, and is, causing problems. There are allegations of builders being held to ransom by third parties who indicated, at a late stage in the process, that they were going to appeal, but that if money was paid to them, they would not. There is no hard evidence of that, but it is a real concern. It has prompted the Government in the South to introduce further restrictions.

The paper refers to the latest research from Queen’s and the various models that must be considered before putting a system of third-party appeals in place. It asks why third-party appeals are desirable; what is the objective; and what type of decision will be subject to them. Will they apply only to planning application decisions, or will they extend to demolition consents, tree preservation order consents, reserved matters applications or Article 31 major applications? Are they only for major applications or for circumstances that have a direct impact on an individual? Are they only for environmental applications, as in Denmark, or should they be universal? Should they be completely open, as in the South, or, given the concerns there, should they be restricted, and how do you do that? Do you restrict them to neighbours with an adjoining land —

The Chairperson: This is a rehearsal of everything the Department has already said, yet the Department has not taken on board the fact that the Committee wants third- party appeals. The Assembly has said that it wants third-party appeals. When will the Department act on the will of the Assembly rather than object to it? When will it bring the operation plans for third-party appeals to the Committee?

Mr Small: That is what we are trying to do. We are trying to air the issues that must be considered.

The Chairperson: With respect, that has been done. We should be beyond this — far beyond this. The House of Commons suggested third-party appeals in 1996, and nothing has been done. Research began in 1999 — three years ago — and you are still telling us the problems. We should be being told how the Department is going to carry out the will of elected representatives in the Committee and the Assembly, and the purpose of the Assembly is to carry out the will of the people.

This Committee feels that third-party appeals are essential. You talked about speeding up the planning process. In reality you are talking about speeding up planning decisions that many people feel are perverse but have no power to do anything about. With third-party appeals, people would be able to overturn such decisions. The evidence in the South and elsewhere shows that third-party appeals are generally well accepted and have a high rate of success.

Mr Small: They have an exceptionally high rate of success.

The Chairperson: If that is so, we are not talking about notional objections but about successful appeals. If there was no provision for third-party appeals, those decisions would have gone through.

Mr Small: I accept your point.

The Chairperson: Why would there be a high success rate if the original decisions were not wrong? You are saying that we should be speeding up the process of making wrong decisions.

Mr Small: I know the Committee will not accept this, but the system in the North is different from that in the South. There is very little pre-decision consultation in the South.

The Chairperson: What do you say to people who feel strongly that certain planning decisions are perverse yet they have no power to change them? All they get is consultation. What would happen if a council, with all shades of opinion, was united in its rejection of a planning decision that the Department approved? The community has no power in this: its representatives and the Assembly have no power in this, and that is not acceptable. You say that the system here is better than the one in the South, but that is not acceptable. I know that officials do not accept this and not just for the sake of blocking. However, they have to change, and the Department has to change, because it must implement the will of elected representatives speaking on behalf of the people.

Mr Small: Your comments are well made, and the Minister recognises the concerns that were expressed during the debate on Monday. He is now fully committed to public consultation on this.

The Chairperson: This subject has been running since 1996, and we are still in consultation.

Mr Small: The situation in 1996 was that the then Government were not persuaded.

The Chairperson: Let us forget 1996 then. Let us turn to 1999 and what has happened since then. We are supposed to be in a different dispensation, but we are hearing the same old words now that we heard then.

Mr Small: No.

The Chairperson: Now we are being told that we are going into a review of the situation.

Mr Small: It is not a review.

The Chairperson: What has been happening since 1999?

Mr Small: It will be a full public consultation, and it will take views on the matters that I am discussing with the Committee. There are many ways in which we can proceed. The Minister’s concern is to ensure that third-party appeals, if we introduce them, are introduced in a way that does not damage the planning process. We must take account of how the current system operates and how best to accommodate third-party appeals. The Minister made a commitment on Monday —

The Chairperson: Neither the Minister nor the Department is convinced that third-party appeals are needed.

Mr McKay: The Department has not made a decision on this. A long time may have been taken, but, as you have said, over 20,000 planning applications a year are processed, the vast majority of which go through without any difficulty. However, there is a strong view — and you are expressing it on behalf of the Committee — that there are people who feel that they do not have an adequate say. Those people are not applicants, but they are opposed to an application and its implications.

It would be helpful to the Minister if the Committee could say who it considers should be third parties in such circumstances and the types of appeal that are envisaged. We understand what the Committee is saying about the principle of third-party appeals, but, as Mr Small has said, there are many variations across the different Administrations in Europe, so we would appreciate the Committee’s views on who the third parties should be. I do not know if the Committee has thought about that.

The Chairperson: No. Our remit is to scrutinise what the Department presents to us, not to formulate policy.

Mr McKay: It is clearly the Minister’s job to formulate policy, and —

The Chairperson: The Minister must realise that this issue is not going away, and it is about time that we had some detailed proposals from him or his officials on how this is going to be put into effect. When information comes to the Committee we consult about it and consider it in detail, but it must be presented to us first. You say that you are going to consult, but what are you going to consult on?

Mr McKay: The Minister would say that you are expressing the views of those who have spoken to you, but that does not mean that everyone in the community wants third-party appeals. We do not know the answer to that because there has been no consultation yet. That is the difficulty that the Minister faces.

Mr Armstrong: Who does the Minister suggest these third parties should be then?

Mr Small: The purpose of consultation is to get a clear understanding of where the demand for third-party appeals is coming from. Is the right of appeal for neighbours who have an adjoining boundary and are directly affected? Is it for wider concerned groups such as the Royal Society for the Protection of Birds and environmental groups? Consultation would help inform decisions on how wide a right of appeal should be and the types of decisions it should apply to. We would like to have the public’s views on how the system should be shaped. That would enable us to develop the detailed proposals that the Chairperson is talking about and discuss them with the Committee.

Mr Armstrong: Why not do that now? Why take such a long route? It is taking a long time to get a decision.

Mr Small: We both acknowledge that it has taken a long time to reach the present point where the Minister and the Department have determined that more needs to be done. We realise that we need to make progress, and the Minister has given a commitment to go to public consultation. We have progressed beyond the 1996 position, when the view was simply that third-party appeals would be bad and we would not be having them. Matters have moved on, but it has taken time.

The Chairperson: We can respond to that by quoting from the notes that we received this morning:

Mr Armstrong: Are you suggesting that the Committee should say how to resolve this?

Mr Small: If the Committee has a firm view that third-party appeals should be available to a particular group, such as a university, we will tell the Minister of that view. However, the Minister wants full consultation on this, so that all the issues can be debated and we can see where the demand for third-party appeals is coming from; what type of appeals are involved; and what decisions they should apply to. Until we have that information, it is difficult to devise a scheme and envisage how it will operate, and how we do that will determine the impact of delay on the system.

The Chairperson: The Committee will fulfil its role when that consultation process concludes.

Mr Ford: I have some sympathy for the officials — their Department is the smallest in the UK.

The Chairperson: Are you getting soft, David?

Mr Ford: It bothers me that the differences in legislation here have not been taken into account. The cited examples relate to other jurisdictions where, unlike here, councils are the planning authorities.

My Colleague, Mr McCarthy, said in the House that

Mr Ford: The figure of 600 to 700 appeals a year is from previous research by Queen’s, which I do not have with me. Is that figure an extrapolation of the figures in the Republic? Is that the maximum number of appeals in the loosest possible third-party appeal system? If planning permission were given by a substantial majority vote of a council, there might be only 30 or 40 appeals a year.

Mr McKay: It is hard to know how many there would be, but, with qualifications, the figure can be reduced.

Mr Ford: So the figure of 600 to700 represents the worst possible scenario. You are being very agreeable, but that is another example of a previous, unhelpful response from the Department that has been changed by discussion this morning.

Mr Small: The figure was based on the research that was conducted. Many pointed out that third-party appeals were available in the South and asked why they could not be available in the North. The Department was simply considering the way in which the system operated in the South.

Mr Ford: If we consider the different contexts, we are dealing with very different numbers.

Mr Small: Exactly: there are different ways of doing this. We could adopt a universal system, such as in the South, or we could try to define and restrict the system in a variety of ways, which is important.

Mr Ford: Would it be appropriate for you to prepare a paper outlining the potential range of acceptable appellants, and the implications of that, rather than considering the worst-case scenario?

Mr McKay: Yes. We can speak to the Minister about qualifying the system in that way.

Mr Ford: That would be very helpful.

The Chairperson: I will take one last question, and then Mr Small wants to speak about two other matters. The Committee will have to consider and discuss them on another occasion.

Mr M Murphy: Your argument against third-party appeals is that they would hold up the planning process. That is not a reason to allow bad planning practice. You mentioned Monaghan, but you did not mention some of the decisions that were overturned in the Republic, such as the proposed use of flood plains for two business parks. That was overturned because the location was not accessible by public transport and would have been contrary to the practice of sustainable development. The best known case, which should have been cited, was Mary McAleese’s application to build a lakeside home in Roscommon. But for third-party appeals, that would have been approved.

Mr Small: The success rate of third-party appeals in the South is very high.

Mr M Murphy: That shows that there is a good reason for them. You should consider what happens with planning applications that are contrary to the provisions of adopted development plans; with applications in which local authorities have an interest, as they tend to get rushed through; and applications, accompanied by environmental impact statements, that planners have recommended should be refused permission. They should be subject to third-party appeals. Those are your starting points.

The Chairperson: The Department knows how the Committee feels about third-party appeals. We will hear from you again on the matter. Witnesses from the Northern Ireland Office are waiting outside the room, so can you explain quickly the two matters that you want to address, Mr Small?

Mr Small: Annex B deals with how to address a development that starts without planning permission. The Committee previously expressed concern about some developers pushing ahead with development before getting the appropriate permission. The paper sets out our enforcement powers under the Planning Order and addresses difficulties in the system — fines are too small, we cannot get necessary information; and we lack flexibility in the enforcement process.

The paper then goes on to outline the provisions in the Planning (Amendment) Bill, which the Department feels will help. It refers to the new contravention notices and increased penalties that the Department will introduce. The current proposal in the Bill is that a penalty in the Magistrate’s Court will increase to £20,000. For the first time here the new provision will allow us to take cases of non-compliance with an enforcement notice to the Crown Court. We could do that with listed buildings but not with general enforcement offences, so that is a major move forward.

Unlimited fines will be available in the Crown Court, another important change. The Minister and the Department are committed to pursuing enforcement with much more vigour than in the past. The Department will take cases through the Crown Court with those new powers to take maximum advantage of the new unlimited fines that will be available.

The paper then briefly mentions the Green Paper that was introduced in England. It is seeking comments on creating a new offence. The paper says that it is an offence in the South to begin development without permission, but the Department has had discussions with officials in Dublin that suggest that the power is there but difficult to use partly because the courts prefer to see the Department pursuing other means of enforcement before resorting to court action. Nevertheless, it uses the power and occasionally prosecutes directly, but the success rate seems disappointing.

The paper mentions Queen’s University’s research findings from that project, which suggest that there is merit in introducing that new offence here. That is likely to make a positive contribution to the effectiveness of enforcement. It qualifies that with other matters such as the will to enforce, the resources necessary for it and the training of enforcement officers. However, the basic principal outcome of the research seems to support introducing the new offence. The paper briefly summarises experiences in Europe where that provision exists. It also talks about other issues that are relevant in France, Spain and Germany.

The Minister has taken account of the Committee’s concern on this and Queen’s University research that supports creating the new offence. Having considered it further, the Minister is now minded to make the kind of amendment that the Committee proposes, subject to any further comments from the Committee and subject to agreement with the Executive and the Secretary of State. The Minister will prepare a detailed case to put to the Secretary of State. That is the Minister’s position now, and that reflects his speech on Monday. He is keen to make that firm case to the Secretary of State subject to the Committee’s comments.

The Chairperson: In your submission you state that, subject to the views of the Committee, the Department intends to prepare a detailed case for submission to the Executive and the Secretary of State. The Committee would like to see a draft of that submission.

Mr Small: The other paper deals with the levels of fines. The role of the Magistrate’s Court and the fines and penalties imposed by it suggest that it would be inappropriate to have unlimited fines from the Magistrate’s Court or higher fines than what is being proposed. The Department has reached that conclusion from discussions and consultations with the Court Service.

The paper recognises the fine of £20,000 that was proposed in 1991 in Great Britain, and it acknowledges that inflation should be taken into account when considering what the fine should be now. The paper proposes that, subject to the Committee’s comments, a case be put to the Secretary of State suggesting a higher fine to take account of inflation. The sum of £30,000 is suggested. The paper also draws the Committee’s attention to the new ability to go to the Crown Court. The Minister and the Department intend to do that, where unlimited fines will be available.

Mr Ford: If the Minister is giving a commitment to using the Crown Court when appropriate, the court will deal with that. The Committee should recommend that the Minister suggest a fine of £30,000, rather than £20,000, to the Executive.

The Chairperson: Does the Committee agree to £30,000?

The Chairperson: Thank you for attending this morning’s meeting.

27 June 2002 (part i) / Menu / 27 June 2002 (part iii)