Members present:

Rev Dr William McCrea (Chairperson)
Ms Lewsley (Deputy Chairperson)
Mr Armstrong
Mrs Carson
Mr Ford
Mr McClarty
Mrs Nelis
Mr Poots

Witnesses:

Mr D Small ) Department of the Environment
Mr J Lambe )

Mr Small: I apologise for the absence of Hugh McKay, the chief executive of the Planning Service, who was to lead the presentation today. He is unwell and, at short notice, we must proceed without him. If you are content, Mr Lambe and I shall lead the presentation.

The Chairperson: Please send Mr McKay our good wishes.

Mr Small: The presentation involves a clause-by-clause consideration of the Bill, dealing specifically with issues raised by consultees. Before it, however, I should like to update you on three issues, which were the subject of earlier discussion: third-party appeals, increasing the level of fines in the Bill and provisions to make it unlawful to begin development without planning permission.

The Committee will be pleased that the Minister hopes to put a paper before the Executive on 19 September, seeking their agreement to introduce amendments on two issues: the proposal to increase the level of fines and the creation of a new offence to make it unlawful to start development without planning permission. The paper to the Executive will be copied to you. After further consultation with the Committee, the Minister intends to seek the agreement of the Secretary of State to the two amendments, because they concern reserved matters.

On the subject of third-party planning appeals, the Department has prepared a model for discussion with the Committee, as agreed at an earlier meeting. The model and a detailed discussion paper are with the Minister, and the intention is to present them to the Committee in the next week or so. The Minister is keen to have this meeting, and dates are being considered.

Given that the Minister will appear before the Committee on those points, I do not propose to spend further time today addressing them, as they have been raised by individual consultees. If you are content, Mr Lambe and I will deal with other issues raised by consultees. Those issues cover considerable ground and detail. The amount of consultation makes that difficult to avoid. We shall pause after every two or three clauses, or sooner if wished, to take questions.

Mr Small: Clause 1 deals with planning contravention notices to seek information on alleged breaches of planning. Several comments were made on this. The Royal Society for the Protection of Birds (RSPB) has reservations about article 67(C), relating to planning contravention notices, which provides for a person to agree to a particular remedial action, or to bring forward a planning application, or to amend slightly what was being done to resolve a problem.

It sees that as an opportunity that individuals may use as a delaying tactic rather than a proper effort to resolve a situation. We do not share that concern. The use of a contravention notice is only one action available to us. If a satisfactory outcome is not achieved, we will use our other powers in the legislation and, for instance, pursue an enforcement notice. The RSPB is concerned that the provision in article 67C might be used as a delaying tactic. It may be right about that, but we intend to try to resolve matters as far as possible before using the more serious powers. However, those powers are available, and we will use them when necessary.

The Woodland Trust is concerned about article 67C and the problem of developers clearing trees from sites before applying for planning permission. That is a wider issue than the purpose of planning contravention notices: should removing trees require planning permission? We do not think it should. To introduce that sort of provision would have major operational implications for the planning process, the Planning Service and private house owners who might want to cut down a tree on their property. Blanket control over the removal of trees should not be introduced, and this was discussed at some of the Committee’s previous meetings.

Mr Small: Clause 2 deals with the enforcement of conditions and breaches of conditions attached to planning permission. A number of concerns were raised about that. The Planning Appeals Commission was concerned that there is no provision in the Bill for an appeal against a breach of condition notice, and it suggested that there might be human rights issues there. The Department "human rights-proofed" the Bill before introducing it to the Assembly, as is required, and it is satisfied that the Bill is human rights-compliant. When conditions are being attached to planning permission an applicant can appeal those conditions at that time or subsequently. There are provisions already in the legislation that allow an individual to apply to the Department to have any condition removed, so we are satisfied that the Bill is human rights-compliant.

The Planning Appeals Commission also raised concerns about article 76A, and suggested that the wording be reviewed. It said that the wording should be more flexible to give the Department more discretion. We are content with the current wording, which is designed to deal with specific and clear breaches of planning conditions. Where the Department feels that a different approach should be adopted, it will use enforcement powers that are available in the legislation.

The RSPB also raised a concern about clause 2. It said that the Department must closely monitor compliance with conditions when they are attached to planning permission because that would allow a more rapid response. We accept that we should be more proactive on enforcement, and we have made commitments to be so at previous Committee meetings. There are limits on how effective we can be in that, but we do accept the point.

Another concern raised by the RSPB relates to article 76A and a breach of conditions. The RSPB asked if the suggested fine was a sufficient enough deterrent. We are satisfied that the proposed fine of £1,000 is adequate and consistent and proportionate with other fines in the Bill. The breach of condition notice process is designed to deal with clear, specific and, usually, minor breaches of planning control. Where we feel that something is more serious, we will use the other powers available by way of an enforcement notice when higher fines will be available.

Mr Small: Clause 3 deals with injunctions, and no specific comments were made about the new powers.

The Chairperson: Does any member want to raise anything about clause 1 and clause 2?

Mrs Nelis: I understand the difficulties of protecting trees given prior planning permission, but how do you propose to do it? We all have experience of developers clearing sites and cutting down trees, resulting in disruption to and protests from people. How can we protect the environment?

Mr Small: We have concerns about blanket protection to prevent the removal of any tree without prior approval from the Department. That would have serious operational difficulties, as well as implications for house owners who simply wanted to trim or cut trees in their gardens. Our intention is to be more proactive in the use of tree preservation orders and in how we use the powers given to us by them. We are conscious of the recent occasions on which developers have gone into sites, cleared them and created development sites. The Minister is aware of the problem and is concerned about it. We propose to move more quickly with tree preservation orders and to work more proactively to identify where they might offer better protection.

The Chairperson: Many trees have been destroyed, and there is much dissatisfaction about developers clearing away good mature trees for financial gain and nothing else. No consideration is shown for the environment. Unfortunately, trees are destroyed and taken away before the Department arrives. That happens often, and usually at around 4 o’clock in the morning. That is the "sneaky beaky" way in which these boys do it, and it must be stopped. People must have planning permission before they begin a development, and not only for building. Cognisance must be taken of the environment and the need to preserve it. Every one of us deals with constituency issues that prove that members of the public are very dissatisfied. They feel that the Department is weak in this, and it will take some real action by the Department to convince them that enforcement means anything.

Effective measures must be taken to satisfy the community. We have few enough trees; Northern Ireland is one of the weakest areas in Europe for tree planting. We should demand more of that rather than allow the destruction of beautiful trees that add to the environment and the enjoyment of it by people. We must act firmly to stop what has been happening recently, and the Committee would like the Department to re-examine clause 1, which needs more teeth.

With regard to clause 2, many feel that £1,000 is not a sufficient fine. Many representations have been made on the matter, but the Department seems to be happy with the amount.

Mr Small: The Department’s view is that the breach of condition notice will be used in specific circumstances for very clear-cut, minor breaches of planning control. In more serious cases and where we feel that a different approach is needed, action will be taken through the enforcement notice process. In a Magistrates’ Court, people can be fined £30,000 and, in the High Court, fines are unlimited. As we intend to use the breach of condition notice in a targeted way, we are satisfied that £1,000 is sufficient. We will use a different process if a tougher approach is needed.

Mr Ford: This should be a simple procedure for dealing with issues that are not being dealt with by the existing procedure. Introducing a fine as low as £1,000 might affect someone’s decision to add a porch to a house but not the decision to add anything bigger than that. This does not represent real remedial action, and you will have to carry out full enforcement action. This does not add anything to your powers, and I cannot understand why you are not prepared to act above level 3 on the standard scale and introduce a meaningful fine. Without that, you have the choice of a completely nugatory process or full enforcement action, which you already have enough difficulty finding the staff, time and resources to deal with.

Mr Small: As I said, the intention is to target the use of this new power, which is designed for use in the case of clear-cut and usually minor breaches of planning conditions. Rather than use the full enforcement process, the Department has chosen to introduce this more straightforward measure.

Mr Ford: Do you not accept that a development would have to be minor for £1,000 to be a significant sum?

Mr Small: Yes, and the fine is likely to be used in cases of minor breaches.

Mr Ford: How minor would the development have to be for that fine to seem significant?

Mr Small: We have in mind cases where landscaping has not been done in accordance with planning conditions. The provision would be used to ensure that the landscaping was corrected, and where it was not, we would impose the fine. However, we do not anticipate this measure being used in cases where, for example, a three-storey building was built when there was permission for only a two-storey building. In such situations, we would use much stronger powers.

Mr Ford: The Department will not impose the fine, but it will take a prosecution and hope that the magistrate will impose a fine of £1,000 at most. In such a situation, the developer would say that he forgot to plant the additional trees and would agree to complete the landscaping. The magistrate would then fine him £50. It is pointless to have a maximum fine of £1,000.

The Chairperson: Given that the maximum fine in a Magistrates’ Court is £30,000, why does this measure not have a maximum level of £5,000? What is wrong with that? Why are we so afraid to give the court that power? Nothing convinces me that there will a rash of cases going to the High Court. The majority of cases will go to the Magistrates’ Court, despite the fact that many of them will not be minor. There seems to be consensus that there should be a maximum fine of £5,000 for minor cases. I can assure you that £1,000 means very little today, and to many it would be nothing.

Mr Small: We will take those comments back to the Minister.

The Chairperson: Tell the Minister that the Committee is resolute about the matter.

Mr Small: We will probably have to reconsider the whole range of fines in the Bill, which we do not mind doing, to ensure that there remains some consistency in the fines and penalties.

The Chairperson: It is difficult to persuade courts to impose the maximum fine. The tragedy is that if the maximum fine is £1,000, the fine imposed is likely to be £50. People will laugh because that means nothing.

Mr Small: We must seek to get better results from the courts, which will be a long process.

Mrs Carson: You have said that

Mr Lambe: Quite often the type of enforcement action we take is not as a result of a failure to comply with planning permission but to deal with unauthorised development, be that in the form of a structure for which somebody has not applied for planning permission or a small extension that a person thought was permitted development that subsequently slightly exceeded those boundaries. When we serve an enforcement notice on a site, we must specify every breach of planning control on that site, even those that, if permission had been applied for, we would have allowed. This targeted enforcement is a means of allowing us, when taking enforcement action, to home in on specific breaches that we think incapable of being approved by a subsequent planning application and so concentrating our resources on the more serious breaches of control on a particular site.

Mr Small: Occasionally we simply miss what might be regarded as a breach of planning control when we are concentrating on specific points brought to our attention, and after the appeal process has begun, and the appellant refers to this other breach that we failed to recognise, the whole process is lost. We want to avoid that, and that is the primary purpose of creating the greater discretion. When an individual raises concern about a particular piece of development, we will take enforcement action against that. If we happen to miss some other minor discretion or breach, the whole process of purposeful enforcement is lost.

The Chairperson: We must be careful because, although an officer might dismiss a breach of the rules as a minor matter, a person, who knew that he would not have got away with his plan when he first applied, might have done it deliberately. As far as you are concerned, he complied with the paperwork and did what he wanted afterwards. In your book that would be regarded as a minor breach, but it could have untold implications for the person’s neighbours or others to have to live with it.

Mr Small: The Department does not intend to ignore planning breaches. However, It wants to ensure that the whole process does not fall apart because it concentrates its efforts on one or two cases and innocently misses a minor breach. The Department intends to act on every identified breach.

The Chairperson: How strongly did Lisburn Borough Council raise certain matters, such as replacement buildings?

Mr Small: Lisburn council asked for clarification of what is meant by a replacement building. Article 68A(7) sets out what that means. It is not clear how we can make that more precise.

Mr Poots: Does the rule apply only to dwellings, or does it apply to commercial and sporting premises as well? The policy is that if a dwelling is abandoned, for example if it is on a farm and used for storage of fodder or for housing cattle, it is no longer classed as a dwelling. Does the same apply to commercial activity, if, for example, an industrial shed is no longer in use? Can it be reclaimed for industrial use, despite the fact that it has been used for other purposes for several years?

Mr Lambe: That is a detail of the way in which planning policy operates, rather than a provision of the Bill. The Department can look at the issue and try to respond to it. However, I am not sure how it relates to the provision in the Bill.

Lisburn Borough Council said that the term "replacement building" must be clarified. It did not suggest how that could be done, and the Department is not sure how to do it.

The Chairperson: What do members think about the suggestions for ensuring that district councils are consulted at appropriate stages when enforcement action is being taken?

Mr Small: It is not current practice to consult the relevant district council at each stage of the process, and there is no provision for doing so.

The Chairperson: I thought that consulting district councils failed to bring about enforcement action, because so little action has been taken.

Mr Small: It would add further delay to the enforcement process, which is already slow.

The Chairperson: Coleraine was mentioned in relation to breaches in planning control in the past 10 years.

Mr McClarty: The council mentioned that because it felt strongly about it. However, I take Mr Small’s point about concentrating the resources on recent cases rather than going back such a long time.

I appreciate your saying that you need legislation to ensure that other legislation is not breached in relation to, for example, health and safety. It should be specific. An immediate stop notice should mean "Immediate stop", and the reasons for it should be a very clear. They are laughing at this whole situation, and the community is angry. When people are told that a stop notice has been put on, they expect that to mean "Stop". An elected representative can tell them that a stop notice has been put on a development, but the next day the work carries on. When are you going to ensure that we have stop notices that are really effective, with the one proviso for what is clearly identified as health and safety work? And then there must be immediate fines.

Mr Small: The provision will allow us to impose a stop notice that will take effect immediately where we feel that it is necessary. Part of the problem is that the penalties available to the Department are low. Even when a stop notice is put in place and takes immediate effect, it may simply be ignored. Other provisions in the Bill relating to fines will increase the penalties available for stop notice action to £30,000 in a Magistrates’ Court or to an unlimited amount in the Crown Court.

We are already taking specific powers to increase the action that the Department can take in the event of a stop notice’s not being complied with. We are satisfied that the provisions as worded will allow us to impose a stop notice that takes immediate effect.

The Chairperson: I would not be very satisfied at all.

Mr Small: Once a stop notice is in effect and is breached or not complied with, the developer has committed an offence. It is then that the Department must respond quickly in terms of prosecution.

The Chairperson: The proposed new article 73(3B) says that

The Chairperson: We are talking about seeking to get the law amended to satisfy the needs of the community.

Mr Small: Current law states that a stop notice cannot take effect until after three days. This provision will allow us to make it take effect within one day, or half a day, or immediately if we choose.

Mr Ford: Could we not go the whole hog and say that it should apply immediately unless there are good reasons for its being delayed for a period of between three and 28 days?

The Chairperson: We have to be specific. What does health and safety mean? If three days are given, not to carry on building, but for health and safety purposes identified by the Department, what actions should be taken on those days? We must address this because it is wrong.

Mr Small: Health and safety was quoted to illustrate the point. There may be other reasons for it not being possible to stop immediately.

The Chairperson: You must let the Committee know.

Mr Small: My concern is that we cannot provide an exhaustive list in the legislation because we cannot foresee every circumstance.

The Chairperson: We cannot foresee every circumstance but we can foresee that a stop notice will not mean "Stop" — it will mean "Carry on". It would be more appropriate for the Department to put up a big "Carry on" notice because people are absolutely sickened by recent events. There is not one isolated case; it happens repeatedly. Developers are snubbing their noses at ordinary, law-abiding people, and there seems to be nothing that elected representatives can do. We are told that it will come down to the legislation. We must stop the gap while we can, because, as the Minister knows, once legislation is in place it is difficult to amend.

Ms Lewsley: What impact will a stop notice have if it applies to only part of a site?

Mr Small: A stop notice will target a particular type of activity, which could be unauthorised. It will, therefore, be specific. If a development or an operation is taking place that the Department feels should be stopped, the stop notice will clearly give its reasons.

Ms Lewsley: I know of a case in which a stop notice applied to two houses only. The developer continued to work on the houses on either side because he assumed that the houses that were causing the problem would not be taken down. In the end, there was a compromise; the houses were lowered by 8ft when they had been raised by 13ft in the first place.

Mr Small: That how the process operates. If the unauthorised development related to two houses, the immediate desire would have been to stop that. If the developer stopped his activities, that stop notice was successful. If, however, he moved on and repeated the offence elsewhere, further stop notices would be issued. A stop notice cannot be issued to stop something that has not started. In such circumstances, the Department uses the other enforcement powers available to it.

Mrs Nelis: On whom is a stop notice served? It is unclear in the legislation. I know of enforcement officers who tried to serve a stop notice but have found that the developer or the owner of the site was absent. If the developer or owner is not present, and a building contractor is on operating the site, is the stop notice served on every person working there?

Mr Lambe: Stop notice powers can only be exercised in conjunction with an enforcement notice, so a stop notice can be served on the same people on whom we serve an enforcement notice. Those people include the owner, the occupier or anyone with an interest in the development.

Mrs Nelis: Does that include the site workers?

Mr Lambe: No. Mrs Nelis is talking about circumstances in which it is difficult to serve statutory notices. Courts have legislation to deal with that type of situation. For example, there is a procedure whereby a stop notice can be left at the feet of a person on a site, which, in certain circumstances, satisfies the law. Such situations are dealt with in criminal law rather than civic or planning law.

Mr Ford: I will respond briefly to the reference to the three days. We have been told that it would be difficult to specify the precise reason for the delay, but the Bill, as it stands, does not specify the reasons for an earlier date. You have given no logical reason for its not applying immediately, unless you determined that there were special reasons for its being delayed.

In the proposed new article 73(7C)(b), why, if we are talking about conviction on indictment, are we discussing fines alone, if we are considering something that might be of sufficient importance to merit imprisonment? There must be other areas where the possible penalty is imprisonment for a major breach.

Mr Small: At present, the only penalty that can be imposed for non-compliance with an enforcement notice or many of the other breaches is a fine. The only exception to that, which is incorporated in the Bill, relates to the demolition of listed buildings, where a custodial sentence is a possibility.

The Chairperson: Yes. That is in the proposed legislation. Let us forget about the current legislation: it has been totally abused and has proved ineffective. It is no use for the future. Let us talk about the legislation that will stop abuse. Mr Ford said that just because it was not in the previous legislation does not mean that it cannot be incorporated into it now. What is to stop the courts, if it were so permitted in the Bill, considering a custodial sentence?

Mr Small: That is a valid point. We will consider it and respond to it later.

Mrs Nelis: I am unhappy with the response about whom a stop notice is served on, which was unclear. A developer in Derry, where I live, received planning permission to build eight flats, but he built 14. The planners tried to serve a stop notice and an enforcement notice, but they could not. How does the proposed legislation address that weakness in the current planning legislation?

The Chairperson: Will you think about that, and we will start with that question at the next meeting?

Mr Small: Yes.

The Chairperson: Instead of putting them on the long finger, we will start with the points that have been raised today at our meeting next week and carry on where we left off. It would also be helpful because members can read the responses in conjunction with other documents in the folder in preparation.

Thank you for your presentation, and please send our good wishes to Mr McKay.

4 July 2002 (part iii) / Menu / 5 September 2002 (part ii)