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

Mr D Nesbitt ) Minister of the Environment
Ms M Hempton )
Mr J Lambe ) Department of the Environment
Mr I Maye )

The Chairperson: I welcome the Minister, who is here to discuss two important issues, and I thank members for agreeing to bring forward the meeting.

The Minister of the Evironment (Mr Nesbitt): We have had many a disagreement, but I appreciate your bringing the meeting forward, because I have to catch a plane.

The Committee raised the issue of the criminalisation of planning, and I empathise strongly with that. The Department of the Environment commissioned research from Queen’s University Belfast, and it supports criminalisation. The Department is drawing up a letter to send to the Executive seeking their endorsement, in principle, for the introduction of criminalisation of planning, which would mean that there could be no development without planning permission. I intend to propose an amendment, but I will consult the Committee on that. I publicly endorse that this is in response to the Committee. I am conscious of development without planning permission, which is unacceptable.

The Chairperson: What is the opinion of your Executive Colleagues on the matter?

Mr Nesbitt: Prior approval is almost like applying for planning permission. The request is sent to Executive Committee members, and if they have no objections, it is put formally to the Executive. The five Ministers who responded within the timescale support it. We are taking the silence of the other Ministers as acceptance; however, I cannot be sure. Nevertheless, I am going forward with a measure of support. I have also had initial discussions with the Secretary of State, and he understands why the Department wants to propose the amendment because the research shows that it has not been operating in England and Wales. However, research from Queen’s University Belfast shows that it has been operating as a deterrent in the South of Ireland, and it is causing a smaller financial increase. It works throughout Europe also.

There is a strong precedent of having prior approval, and there is indicative support from the Secretary of State. There has also been no dissension in the Executive. It will go to the Executive next Thursday for approval. If they endorse it, we will draw up the amendment. Then the Committee will assist me in examining the amendment.

The Chairperson: Will the wording of the amendment be open for discussion and scrutiny by the Committee?

Mr Nesbitt: Yes.

We have had much discussion about third-party rights of appeal. At the last Committee meeting we discussed the increase of the unlimited fine to £30,000 if the matter is dealt with in a higher court. I have sympathy with the criminal aspect, and we have conducted some work on that. Consultation on the review of the planning process was divided. Some people said that we need third-party appeals, but others were unsure. However, there was unanimity from both sides of the House that it was tricky and required further consultation and thought. We want to go down that line, but that does not mean that we are putting it on the back burner. We need a commitment to the consultation, and we need to embark on that before Christmas.

If, or when, we embark on consultation, I want the Committee to see how we are consulting and to give us its views on the consultation. However, across the board it is viewed as a difficult issue. Mr Maye can outline the model that we have suggested. Further thought is required; the consultation will prepare the ground for serious consideration.

The Chairperson: You said that the matter would not be put on the back burner: is that a direct commitment to consultation?

Mr Nesbitt: I give my commitment now — readily.

The Chairperson: Is there, therefore, a timescale as to when the consultation will commence and finish?

Mr Nesbitt: I anticipate that it will be completed by Christmas.

Mr Maye: It will commence before Christmas, and we will publish a consultation paper, having agreed the detail with the Committee. Then it will take the normal three to four months for consultation.

Mr Nesbitt: I read my very brief brief. I should have made it clear that the process would be completed and a paper issued before Christmas. The Committee will be involved in discussion on the consultation document.

The Chairperson: It has been suggested that a detailed regulatory impact assessment is needed. What does that process involve, and how long would it take?

Mr Maye: That assessment would be done within the same timescale; it would be published with the consultation paper. We have already tasked consultants to help us to carry out an analysis and to draw out the potential implications for the public sector and society.

The Chairperson: Are the resources available for drafting the consultation paper?

Mr Nesbitt: I will ensure that that is the case. It could be seen as going up an alley; it is not. It is showing that there are concerns on all sides, and more time is needed.

Mr Poots: In the light of human rights legislation, how safe is it to decide not to introduce third-party appeals?

Mr Nesbitt: We have been assured that that would not be in breach of human rights legislation, and that proposition was tested in the Alconbury case. In deciding whether it should be introduced, we must be mindful of the review of public administration and other aspects.

Mr Poots: Is that the Edinburgh case?

Mr Maye: The Foster case, which is before the Northern Ireland courts, bears on the issue. A hearing was held about six months ago, and we have not yet received a judgement. The judge who heard the case will not be reporting publicly for at least another six months. He wants to hear further oral evidence on more recent cases in England and Wales and in other jurisdictions before making his judgement. Our view, which is backed by senior counsel, is that we can regard the current system as compliant on human rights grounds. However, we will not be sure until we receive the judgement on the Foster case.

Mr Poots: The situation will not be clear-cut if it will take the judge a year to make his decision.

Mr Maye: I agree, it is a very fast-moving area, and recently there have been many cases on the issue in England and Wales. The cases have all been moving in a similar direction. The judge wants to take stock of the general feel of the other cases, and to hear further evidence before he decides what to say in his judgement.

Mrs Nelis: I agree that the consultation is important, but it is happening at the same time as the review of public administration. Will the Committee get only one bite of the cherry or will there be a further opportunity to become involved in the issue?

Mr Nesbitt: You will view the consultation document before it goes out, and your view will probably be sought when it comes in after Christmas. We will have a new Assembly from 21 March 2003, and I am not sure how much can be done between January and March. However, the Committee will be involved at all stages.

Mrs Nelis: Are you confident that you will be able to meet the deadline and that the Committee will fulfil its duties?

Mr Nesbitt: I give a commitment here, and I would readily give it in the Assembly: this process with the Committee will be up and running by Christmas, and it will take place three months after that.

Mrs Carson: How would a change in the law on third- party appeals affect the review of public administration?

Mr Nesbitt: That is a big question. De jure, I make all of the 24,000 planning decisions. De facto, planning officials make many of those, but they all consult with councils. The review of public administration may, therefore, make a key recommendation that an elected representative take every decision. That would mean that councils, through the consultation process, could become the deciding body — if their numbers remain the same. That being the case, it could be argued — and this happens in the South — that accountability is introduced to the planning process, in that elected representatives reflect their constituents’ views to the planning officials. A third-party appeal might take the planning decision out of the hands of elected representatives, giving a Planning Appeals Commission the right to decide.

Planning is included in the review of public administration, regardless of whether a third-party right of appeal is introduced. Elected representatives in district councils must address that.

The Chairperson: Is there not a basic equality issue? For example, an unsuccessful planning applicant has the right to an appeal. However, if the rest of the community is aggrieved by a planning approval, it has no right to appeal. Does the community not have a basic human right to receive equal treatment? In several cases, despite the fact that a whole community has been aggrieved by a planning decision, the approval could not be appealed. The concept of "beauty is in the eye of the beholder" is applied, and community members do not understand why a planning decision was forced on it.

I fully support the right to appeal of applicants; however, a community has rights, and they are being regarded as inferior to the applicants’.

Mr Nesbitt: I empathise with the intuitive logic of that. The community should not be merely consulted in an advisory capacity. It is correct that a development may proceed even if the whole community or council opposes it. If the community, through its elected representatives, opposes a proposal, the planning decision should reflect those community’s views. Elected representatives could, therefore, have an important function to perform in upholding, or at least subscribing to, the rights of everyone.

Mr Molloy: There are two sides to the problem. First, we are working under the assumption that those powers will be returned to local government. Many councils are reluctant to take on that role, because it is easier to blame the planners.

Mr Nesbitt: Nothing crystallises the mind more than responsibility.

Mr Molloy: That is a growing problem in the rural community. Poultry houses, for example, might never be built if the planning decision were left to the rural community. It is a matter of trying to balance conflicting rights. I agree that there must be some mechanism by which the community can appeal against a decision, especially if there is strong objection to a plan. However, I am not certain that giving the responsibility to local government will be the best way of dealing with the matter.

Mr Nesbitt: I am not saying that it is the best way of dealing with it. As Mr Molloy said, local government may not wish to make such decisions. When I was a councillor, Planning Service officials and Roads Service officials said that they wished that the council had authority. They wanted the council to tell them what to do, so that they could do it. However, I take the point.

The Chairperson: I am informed that the Planning Appeals Commission is examining the human rights aspect of the issue, but it has not yet reached a decision.

Mr Nesbitt: I look to Mr Maye for the details of that.

Mr Maye: Like the Department, the Planning Appeals Commission awaits the outcome of the Foster case. They were a notice party in that case and gave evidence. We all await the judgement on the Foster case with bated breath, because we hope that it will clarify the legal issues. It will not, however, clarify whether people think that the introduction of a third-party right of appeal is a good idea from a policy perspective or a natural justice perspective — which is not necessarily the same as justice that is dispensed by a judge.

The two arguments are slightly separate. However, for its own reasons, the Planning Appeals Commission firmly believes that there should be a third-party right of appeal. I do not want to say on its behalf what those reasons might be.

The Chairperson: If the consultation shows that third-party appeals should be introduced, can we speed their implementation by including enabling provisions, which would allow the right to be introduced through secondary legislation, in the Planning (Amendment) Bill? If the Committee thinks that that is the correct route to take, the legislation could be introduced before dissolution.

Mr Nesbitt: It would be possible to introduce enabling powers. However, that would involve making further legislative changes to the Planning (Northern Ireland) Order 1991. Any decisions on the proposed scope of that legislation must be drafted and made subject to a public consultation process. I am not sure that the timescale will allow for that.

Mr Maye: The advice from legislative counsel is that the Department must decide on a precise model for third-party appeals. A broad enabling power, which puts all the responsibility for changing the primary legislation onto the subordinate legislation, is not legally possible. Therefore, we would have to make the primary legislative changes in the Planning (Northern Ireland) Order 1991 now. That can be done only if a precise model is decided upon now. The power to make subordinate legislation will just add flesh to the bones.

Legislative counsel firmly believes that it could be done in the time available, but the third-party right would be extremely limited.

The Chairperson: The Committee will seek further legal advice.

Mr Nesbitt: I will mention the moratorium briefly. The Committee is seeking an extension to the Committee Stage of the Planning (Amendment) Bill in the Assembly, and the Department does not want to lose the Bill, given the enforcement powers, greater fines, spot listing, et cetera, that it will introduce. However, I would like the Committee Stage to be concluded by early or mid-November at the latest.

If the Committee applies for an extension until late November, it will have some flexibility. It can apply only once for an extension. The last time the Committee applied for a long extension, it tried to complete the work well within that time. It should aim to complete the Committee Stage by early to mid-November if we want to be reasonably confident that the Bill will receive Royal Assent before 21 March 2003. If the Committee does not complete its stage by then, the Bill could be lost.

The word "moratorium" was mentioned. I must be clear that there is no moratorium. Sewerage problems in Downpatrick and the Derry City Council area were becoming apparent, and an EU Directive was issued in March 2002 that raised the bar. Two hundred new sewerage works were required by the Regulation. We found that only 57% of Northern Ireland was compliant, whereas Britain was 95% compliant. With regard to the EU Directive, Northern Ireland was only 35% compliant. So, the Department issued a statement to planning officials in each division stating that refusals on the grounds of sewerage treatment works should not be issued. The Department said that we should hold back and look at the dynamics of the problem.

I had another meeting with Peter Robinson yesterday. Officials are working on the problem, and I am committed to making a statement in mid-September. Put simply, the Department is considering the capital works programme for sewerage, when it will be introduced, and when the works will be up to standard. If, for example, I allow development on a particular site, I must consider whether it will be two years before the works are up to standard, and whether, therefore, we are exposing people to pollution. My judgement must be balanced. I want to be open with the community and let people know that, if I am to approve development, I have to consider the level of pollution. I must achieve a balance, and I want people to understand the dynamics of the situation when I make a recommendation.

I may make the decision myself, and I may seek the Executive’s opinion. I wish to support the Department for Regional Development, because it has often said that it needs additional resources. I also want the Executive to be seen to support what the Department for Regional Development is doing because their actions are measured by the colour of their money, as the old saying goes.

We are trying to address the magnitude of the problem, and to help the Department for Regional Development, which, in turn, helps me to deal with environmental issues. The Executive support both Departments. That is the situation in a nutshell.

The Chairperson: The Deputy Chairperson and I met the Minister last week, and we reported back immediately to the Committee. We understand that the window of opportunity that the Committee is looking for must be sensible and rational in the circumstances, and we are now waiting for the Minister’s statement.

Mr Nesbitt: I said that I would make the statement in mid-September. I want to make it on Monday 16 September, but if I am to consult the Executive first, I could not make the statement until Thursday 19 September. I have given an undertaking. Clarity and certainty are needed on the direction that we are taking.

The Chairperson: Minister, thank you for your time. I trust that the Committee will be able to make progress with these matters. We will consider what you said about the timetable for the Committee Stage of the Bill.

Mr Nesbitt: Completion of the Committee Stage by early to mid-November would help to ensure that the Bill receives Royal Assent in time, and that it contains the parts that we want it to include.

The Chairperson: I cannot make any promises on that. The Committee will decide whether that is fact.

Mr Nesbitt: The Committee always does.

The Chairperson: We are determined to do what we can to assist the community with planning.

5 September 2002 (ii) / Menu / 12 September 2002 (ii)