Members present:

Rev Dr William McCrea (Chairperson)
Ms Lewsley (Deputy Chairperson)
Mr Armstrong
Mr A Doherty
Mr Ford
Mr Molloy
Mrs Nelis
Mr Poots
Mr Watson

Witnesses:

Mr H McKay )
Mrs M Hempton ) Department of the Environment
Mr J Lambe )

The Chairperson: Good morning.

Mr McKay: Good morning. I am pleased to be here for the second week in succession after a long absence. My colleagues are Jackie Lambe, whom some of you will recognise from previous presentations, and Marlene Hempton, who joined the team on promotion. David Small is on annual leave.

The Bill is the first major piece of planning legislation here since 1991. Its origins lie with the former Department of the Environment Northern Ireland and with what the then Ministers considered should be done in response to the Northern Ireland Affairs Committee’s report on the planning system here. They made it clear that such matters should be put on hold until devolution. Today, we wish to deal with the provisions of the Bill and answer any queries that Members may have.

Mr Lambe: The Bill has 32 clauses and two schedules that cover three main areas. Clauses 1 to 14 propose a substantial strengthening of the Department’s enforcement powers. Clauses 1 to 3 propose the introduction of a new system for planning contravention notices; breach of condition notices; and the use of injunctions, whereby the Department can go to court to seek to prevent any actual or threatened breach of planning control. Those are new provisions.

As part of the package, we propose to increase the level of fines for non-compliance with enforcement notices; for stop notices; and for hazardous substance contravention notices. Clause 7 proposes increasing the current maximum fine that can be imposed in a magistrate’s court from £5,000 to £20,000. Last week, we proposed an amendment whereby the £20,000 fine could be increased to £30,000. For the first time in Northern Ireland, people will be able to be tried in a Crown Court for breaching an enforcement notice, a stop notice or a hazardous substance contravention notice. Fines will be unlimited, and the court can take into account the potential benefit that would accrue from the breach of control when setting the fine.

In addition to the proposed level of fine for breaches of enforcement notices, there will be a new provision to introduce a custodial sentence for a person found guilty of contravening a listed buildings enforcement notice. Other changes provided by clauses 1 to 14 will allow for a more streamlined and flexible enforcement regime. For example, clause 11 provides specific new powers of entry directly related to investigating alleged breaches of planning control. We have general powers of entry now, so the new ones will be much more focused.

As part of the more streamlined flexible enforcement regime, the Department can withdraw or vary enforcement notices to take account of changing circumstances; for example, when there has been a delay due to an appeal, or a delay with the Planning Appeals Commission (PAC), or a delay between an enforcement notice’s first being served and the hearing by the PAC.

Clauses 15 to 23 contain new controls over development. Clause 15 deals with new controls over the demolition of buildings. The Minister proposes to apply that control initially to buildings attached to areas of townscape character. We will be able to decline to determine repeat planning applications submitted by developers trying to wear down opposition to a development proposal.

Clause 22 is an important provision that introduces the building preservation notice — more commonly referred to as a "spot-listing" notice. It will allow the Department to move quickly when buildings are at risk of demolition and give us breathing space to consider whether or not a building is worthy of being listed and carry out the necessary surveys.

Clause 23, together with clause 14, introduces a new regime aimed at protecting trees. The Bill will introduce higher fines across the board, which will afford greater protection for trees. There will also be new measures, such as imposing a duty on owners to replace trees or be subject to a tree preservation order. There is also a provision to enable the Department to protect trees in a conservation area and a provision to deal with compensation payable when consent is refused. Present legislation about the development potential of land is unclear. There were several test cases in the Lands Tribunal, and we are taking the opportunity to clarify the law.

Clauses 24 to 32 introduce a range of miscellaneous provisions. Clause 24 introduces a new measure to give primacy to development plans with regard to planning applications. New provisions in clause 25 will give the PAC power to dismiss appeals in certain circumstances and greater operational flexibility in how it determines appeals and reports to the Department. Clauses 26 and 27 extend the Department’s grant-aiding powers with respect to the built environment.

The two schedules make minor and consequential amendments to both the Planning (Northern Ireland) Order 1972 and the Planning (Northern Ireland) Order 1991, which are required by the main provisions of the Bill. To conclude, the Department believes that the Bill will significantly improve the legislative framework under which our planning system operates. Importantly, the Bill will enhance the Department’s enforcement powers and will enable enforcement action to be taken much more quickly and effectively than at present.

The Chairperson: Thank you. I appreciate your overview of the general provisions of the Bill.

It was suggested in consultations that stop notices should take immediate effect in all cases and should be used in respect of unlawful developments. Can you clarify the current situation?

Mr Lambe: A stop notice cannot come into effect within three days of its being served. The Bill proposes that where the Department feels it appropriate, perhaps because of the nature of the activity being carried out, be it a danger to life and limb, stop notices can have immediate effect. Stop notices have been served on unlawful developments or on developments without planning permission. We are examining whether, in the context of the proposal to make an amendment, to make such development unlawful.

The Chairperson: Developers who want to do that do so at a weekend. Does an immediate stop notice apply then?

Mr Lambe: There are difficulties if we are unaware of a need or are not in the office. If we know in advance, we can apply to a court to prevent any threatened breach of planning control.

The Chairperson: It often starts at the weekend at about 3.00 am or 4.00 am. It is important that we tackle that. Those breaches are happening in most constituencies, and there are many serious problems.

Mr Lambe: That scenario will be addressed through the amendments that the Department proposes to introduce to make it an offence to carry out development without planning permission. As part of those proposals, I expect that we will be able to take speedy enforcement action and that there will be sufficient cover to ensure that the submission of an application, for example, can rectify the matter, something that would not be considered while we were taking enforcement action.

The Chairperson: I would like to be sure that the Bill has this right, because that causes a lot of constituents’ complaints. They are concerned about developers gaining financial reward from those practices. We must meet this head on, and it is vital to do that now.

Mr McKay: We fully understand that. Although it is easier for officials to be engaged between Monday and Friday, it does not mean that things cannot be done on Saturday and Sunday if necessary. If something happens in the middle of the night, action can be expected quickly the next day, but it is more difficult over weekends or during holiday periods than during the week.

The Chairperson: Has the £20,000 to £30,000 level of fine been clarified, or is that still being considered?

Mr Lambe: Subject to the formal approval of the Secretary of State, the Department and the Minister propose to introduce an amendment at the appropriate stage to increase the level of fine.

Clause 4 allows us to issue enforcement notices where development goes ahead without planning permission, and the clause defines what constitutes a breach of planning control. The Bill will not make it an offence to begin development; that will be done by way of an amendment.

Mr Poots: Should that not be considered in view of past practices where, for example, large developments have been built without planning permission? A long-drawn-out process has ensued between the planners and the developers with legal advisers involved, and retrospective planning permission has been granted that would probably not have been given if the developers had gone down the proper route at the start. Are we not leaving a loophole for people who still intend to do that?

Mr Lambe: We are committed to introducing provisions at Consideration Stage that will make it an offence to commence development without planning permission. There is no such provision at the moment.

Mr Poots: The Bill is strengthening planning laws significantly, so this exclusion is not necessary.

The Chairperson: The Committee needs to see those amendments as soon as possible. We have talked about them but need to consider whether the wording is as forceful as we anticipate or hope it to be.

Mrs Nelis: I am reading this on the hoof, so my questions may already have been covered.

Can notice only be served on a developer or landowner under clause 5? Developers and landowners can absent themselves. For example, planners once tried unsuccessfully to serve notice on one developer 58 times. Does the legislation cover that aspect of enforcement?

What about land surplus to development which a developer is not required by law to maintain?

Thirdly, what happens if planning permission is granted and then a change of use application is received a year later for something that originally was opposed? The Bill may not cover that.

Mr Lambe: First, an enforcement notice can be served on the owner and the occupier of land to which the notice relates. In addition, we can serve a notice on anyone who has an interest in that land, be he a developer or someone who is using the land, with the owner’s agreement, to dump waste material, to ensure that the activity stops and the land is restored to its original condition.

Mrs Nelis: Are you sure the legislation is strong enough to address the problem? Landowners and developers have a track record of escaping their responsibilities and the penalties.

Mr Lambe: The Bill makes it clear that the current owner of the land has prime responsibility for ensuring compliance with the terms of an enforcement notice. In the past, difficulty arose when ownership changed while an enforcement notice was being served and there was ambiguity about whether the original owner was responsible for ensuring compliance or the new owner had inherited that liability. This legislation places the onus on the current owner to comply with the enforcement notice, even if he was not responsible for the unauthorised activity in the first place.

I think that we published a draft planning policy statement on open space provision some time ago. Since then other policy statements, such as the one on telecommunications, have taken priority. We intend to publish the policy statement on open space later this year.

Mr McKay: With pressure of work priority was given to other policy statements, and the one on open space was held back. It has been through the draft stage and will be dealt with as quickly as we can.

The Chairperson: Can we clarify who is responsible for open spaces that developers leave — usually wee areas too small for a house? Developers walk away once they have made their money and do not care tuppence about the environment of the estates left behind. Pressure then goes on the councils to take over those bits of ground that no one wants.

Mr McKay: Your point is valid, Mr Chairman. We are referring to the policy that should be put in place for such land, and nothing in the Bill relates to an amendment for that. In a development it is always better to ensure that any land leftover is included in an adjoining development, for example, used to enlarge a garden or put to public use. Pieces of land that are left can become a dumping area or an area for undesirable activities. However, that has to be dealt with under policy.

The third point relates to a change of use, perhaps a year after planning permission has been given. Full planning permission is required for change of land use. Within permitted development some changes of use do not have to have planning permission. People may apply for change of use a year after the original permission is granted, and that is processed as another application.

Mrs Nelis: Is it a weakness in the planning legislation?

Mr McKay: It is there to enable another land use to be considered, but that does not necessarily mean that the application for the new land use will be granted.

Ms Lewsley: This legislation is long overdue, and we are glad to see enforcement being addressed. I welcome the Bill but wait with bated breath to see if it is more efficiently implemented than the last enforcement legislation. What do you mean by

Mr McKay: An enforcement notice has to apply to a piece of land. In other words, a limit is put on the portion of land that you are seeking enforcement action against.

Ms Lewsley: Does that represent a change in the legislation?

Mr McKay: There is no change. It would still apply to a specific portion of land, or a building or whatever.

Ms Lewsley: I had to deal with a case in which two houses at the top end of a cul-de-sac had been raised by 13 feet. The enforcement notice only applied to the two corner houses, and the builder decided to build the rest of the houses up, assuming that the enforcement notice would accept that, as they had been built up, the two corner houses could not be knocked down. They were taken down by eight feet, but if an enforcement notice had been put on the whole cul-de-sac, the builder would have had to take houses down to the level for which he had applied for planning permission. It is important to ensure that enforcement does not have consequences for the whole site.

Mr Lambe: An enforcement notice can only be served when there has been a breach of planning control, which is why the notice was served on the two houses that were not built in accordance with planning permission. I do not know the details of the case, but I take it that the remaining houses in the cul-de-sac were built in accordance with planning permission?

Ms Lewsley: They were not. There were three phases of cul-de-sacs, all supposed to be built to the same level. There were no objections from the people living behind them, because they were glad to see the land being used, but when the builders got to the third phase, rather than take the water main down the back, they decided to bring it down the middle of the cul-de-sac. They raised the development 13 feet, and enforcement was made on the two semi-detached houses, one of which was built to roof level and the other to the founds. They built the cul-de-sac up the gradient.

Mr McKay: I do not know the details, but I believe that a second enforcement notice would have been required.

Ms Lewsley: It was hard to get the first one, never mind a second. It was one of the few enforcement notices in Northern Ireland that was seen through to the end. That is why I welcome this legislation.

Mr Watson: I am not convinced that the penalties proposed are adequate, particularly given the demolition of listed buildings in conservation areas. A single property in Botanic Avenue incurred a fine of £250 and an entire terrace in the Armagh area one of £4,500. Given that the loss of historic buildings is not accorded separate recognition in the Bill, being covered by existing measures, have you considered the legislation introduced in the Republic in 1999? They really seemed to mean business with a fine of up to IR£10 million at the time and an optional or additional two-year jail sentence. Have you given serious consideration to the adequacy of the fines?

Mr Lambe: Rather than impose a maximum fine as in the Republic, an existing provision could be used — though I believe it never has — to bring such a case to the Crown Court, where there is absolutely no limit on the forfeit which can be imposed on a convicted person. In assessing the appropriate level of fine, the Crown Court can take into account the likely benefit that has accrued or is likely to accrue to the person responsible for the offence. That is a matter entirely for the Court.

The Chairperson: Yes, but you can do that at present. Is that correct?

Mr Lambe: I am not aware that we have taken —

The Chairperson: But that is the vital point of concern. When will the Department show its teeth? Part of the legislation is mothballed and has never seen the light of day.

Mr Lambe: We are committed to giving enforcement greater priority. We are recruiting additional enforcement staff specifically to deal with the new provisions and powers in the Bill.

The Chairperson: The two papers prepared on that cover the enhanced offence of unauthorised development and the increased fines. We should appreciate having them as soon as possible.

Mr McKay: I know the two cases that Mr Watson mentioned. I was involved in them and was disappointed that higher fines were not imposed. That is clearly a matter for the magistrate. You are aware that we intend to raise the maximum fine. Much stronger will exists among Ministers and officials to act, and the thought that jail is a possibility may lead to a little more understanding. I fully accept that this remains to be proved, but the climate is much more inclined to punish wrongdoers.

Mr Ford: I should like to make three points, two of which probably require no answer. It would be useful to know what "schedule of repeals and amendments" means.

Secondly, I should like to repeat the points which Ms Lewsley and Mr Watson have made on enforcement. I am concerned that the explanatory and financial memorandum refers to "marginal financial implications" — something raised at Second Reading by my Colleague, Mr McCarthy, and the Minister. If you start taking serious action on enforcement, there will surely be rather more than "marginal financial implications". Recognition of that would have been helpful.

My main point concerns trees. There are clearly times when a tree preservation order should apply to a mature tree — or two or three mature trees. However, there are also small woods and copses whose wildflowers are just as important to the landscape and environmental aspects of an area. Current thinking seems to be that, since a tree preservation order only applies to existing mature trees across the UK, you should not widen it. I ask you whether it should be widened to include the whole nature of a wood rather than two or three specimen trees in it.

The law on unauthorised development should not be made solely on the basis of the Shane Park case, but there is the problem of unauthorised development, which often involves clearing a site of trees and then submitting a planning application. There is no way in which that will be dealt with unless specific provision is made to protect trees on a site before plans are submitted.

The Chairperson: We have raised that on several occasions. There are infamous cases of sites being raped of trees before applications were submitted. If the applications had been received when the trees were still there, there is no way in which permission would have been given for their removal. It is very serious that someone can accrue the benefits of clearing an area of its trees when we have fewer trees than anywhere else in Europe. It is time that serious notice is taken of that.

Mr McKay: We understand that, and we must keep in mind, when deciding to make a tree preservation order, that there are compensation implications with regard to scale. As you said, an order can deal with a single tree or a wood, which, while not in itself significant, has a significant impact on the area.

Mr Poots: The last Minister did not seem keen on third-party appeals, though the current Minister seems to be more open minded on that, and it has been raised in discussions on this Bill. Has any more thought been given to including the right of third-party appeal in the Bill?

Mr McKay: There was considerable debate on that last week. That was reported back to the Minister in detail, and he is considering the points that were made last week as well as those already raised.

The Chairperson: A paper on third-party appeals was promised in due course.

Mr McKay: Yes, in due course, but perhaps not as quickly as you would like.

Mr Armstrong: Can you give us a broad picture of what you class as advertisements?

Mr Lambe: Article 2 of the Planning (Northern Ireland) Order 1991 gives a comprehensive definition of what constitutes an advertisement. It is extensive, defining any individual word that purports to give directions as coming within the definition of an advertisement. We propose a minor extension to that statutory definition to include some of the newer forms of advertising, such as electronic rotating panels. However, there will be no major change to the current controls on advertising.

Mr Armstrong: On advertisement hoardings, everyone advertises from his point of view. What will you do about that type of advertisement?

Mr McKay: There is a difference between what constitutes an advertisement in planning terms and what is included in an advertisement. The Planning Order deals with the structure but not the content — we cannot get involved in that.

Mr Armstrong: Many different structures have been put up throughout the countryside. They are mobile and can be put anywhere. Will you look into that?

Mr McKay: That is a fair point. You cannot drive too far without seeing a great deal of advertising material. I have to believe that some of it does not have planning permission and is unauthorised.

Mr Armstrong: Does it have to be taken down after a three-week period?

Mr McKay: I think you are referring to election posters.

Mr Armstrong: Does that not cover any sort of material?

Mr Lambe: Do you mean the type of structures that are on mobile trailers and parked at the side of a road?

Mr Armstrong: We are just teasing out what is there. You know as well as I do what is there.

Mr Lambe: There are difficulties with enforcing advertising controls. For example, many advertisements, flags and emblems are placed on lamp standards, which are owned by the Department for Regional Development. They are immune from enforcement action by virtue of Crown immunity, so it is extremely difficult to take enforcement action against them. We rely primarily on Departments and agencies to keep their equipment and land free from such advertisements.

Mr Armstrong: As you are in planning, should you not be giving direction?

Mr Lambe: Periodically, we blitz an area. Together with the Roads Service, Northern Ireland Electricity and the Post Office, we move into an area and arrange for illegal signs to be removed and placed in the local Roads Service depot. People are then told that they can come along and collect them. It is done in a reactive way in small areas rather than as a general approach.

Mr Armstrong: If we are going to protect historic buildings, we should be taking action across the whole country.

Mrs Nelis: I wish to ask about change of use, for example, when old single-occupancy buildings are given planning permission to become multiple-occupancy buildings for which, the planners tell us, advance permission is not required. People only become aware that this is happening when a developer moves in and it is too late. I am sure everyone here could give examples of permission being given for a building to be converted to five flats and the developer’s building ten. Will this legislation deter developers from taking such liberties with the planning legislation, and will the penalties ensure that such a situation, which is so prevalent, will not happen again?

Mr Lambe: The legislation will deter those who effect a change of use that requires planning permission without that permission’s having been granted. New levels of fine will be available to the courts. At a more fundamental level, under the current Planning (Use Classes) Order (Northern Ireland) 1989, planning permission is not required for the change of use of a dwelling house for use by up to six persons living together as a household and sharing facilities such as a kitchen.

That rule, if I recall correctly, was used in the 1980s essentially to give a mechanism for the Government’s proposal for care in the community — moving people out of residential institutions and into communal facilities and individual houses. It had its origins then, and to return to it would have a broad impact on a range of issues. However, it could be looked at during the next proposed changes to the Planning (Use Classes) Order (Northern Ireland) 1989. We plan to review a range of subordinate legislation following on from the primary legislation.

Mrs Nelis: It is a major weakness that must be looked at. Legislation from the 1980s is outdated for now.

Mr McKay: We know the problems that houses in multiple occupancy can create for people living in normal family homes. The developer who increased five apartments to ten should have made another planning application.

Mrs Nelis: There are no enforcements.

Mr McKay: You are right: more breaches have to be enforced.

The Chairperson: Enforcement is at the heart of the matter. This legislation will rely on enforcement to be effective. If it is not to be enforced, there is no use in our sitting around this table trying to get the law right.

A plethora of signs are going up in the countryside. One would think that we lived in the United States. As you enter towns, there are all sorts of advertising boards — and I am not talking about official signs. I know people who were refused a direction sign on a main road — a legal requirement to their business, because it was on a back road off the Glenshane Pass. Yet we see advertisements everywhere. Planners know that such signs are illegal, and they see them as they go to and from council meetings. Small signs are refused while these glaring breaches remain.

You need to tell your officers who see blatant breaches to deal with such infringements because they take away from the beauty of the countryside. I am not talking about election periods, which are limited to three weeks; I am talking about something that is offensive for twelve months of the year. It is a clear breach of legislation, and it is destroying our environment. We do not need more legislation to deal with it, but we do need to have active personnel.

We are waiting for you to do a lot of work on this. Many papers must come to the Committee, and we cannot move quickly without the information we require. Seventeen consultees responded to the Committee, and to assist you during recess, any documents we receive will be forwarded immediately to you. Please remember that we do this without prejudice, for we do not rubber-stamp everything before us. We are letting you know what we have, however, so that the next time we meet we will be able to deal with matters rather than wait. Thank you very much.

Mr McKay: I appreciate that, and I am glad that you recognise the amount of work to be done.