Ms Lewsley (Deputy Chairperson)
Mr Armstrong
Mrs Carson
Mr Coyle
Mr Ford
Mr McClarty
Mr Molloy
Mrs Nelis
Mr Watson

Ms H Anderson )
Ms A Hall ) Department of the Environment
Mr D Kennedy )

The Deputy Chairperson: I welcome Ms Helen Anderson, Ms Ann Hall and Mr Dan Kennedy from the Department of the Environment. Members should declare any interests with regard to local government.

Ms Anderson: We have already provided some notes that summarise the Bill’s content and bring members up to date with what has happened over the summer. I will go over those. A table has been circulated this morning that takes the information that was in the previous appendices 1 and 2 and sets it out in a slightly different format for easier consideration.

The Bill seeks to implement EC Directive 96/62 on Ambient Air Quality Assessment and Management and to satisfy the Programme for Government and ‘Investing for Health’ commitments that the Executive have signed up to. The content of the Bill is summarised on the handout provided; the salient points that will be discussed later are highlighted.

The Bill requires district councils to carry out reviews and assessments of air quality within their areas and, if air quality standards and objectives are not likely to be achieved, to designate that part of the council area as an air quality management area.

The Bill requires each district council to prepare a report of the findings of the air quality assessment and prepare an action plan in relation to any powers exercisable by the district council and to send that to other relevant authorities. Relevant authorities are then required to submit proposals, in relation to any powers exercised by them, for inclusion in a composite action plan. The Bill is about linking district councils with Government Departments and other relevant public bodies to sort out what activities are needed for improving air quality and to put those into an action plan.

The Bill also allows the Department of the Environment to act and recoup costs where a district council fails to fulfil its requirements under the Bill. It allows the Department to direct a district council to take any specific action on air quality matters, and it provides the Department with the power to issue guidance to district councils and other relevant authorities concerning their respective functions under the Bill.

The Bill provides the Department with the power to make grants or loans to any body or person in relation to air quality review, assessment and management. That was a discretionary power previously; it was not mandatory. The Bill details the powers of authorised persons. Other important points are listed, but they will not be important in today’s discussion. I am conscious that best use should be made of the time, but I am happy to go over those points again if Committee members so wish.

The paperwork also contains an itinerary of the interplay between the Department and the Committee thus far. Again, I can go through that in more detail if it would be helpful. The main issues highlighted in meetings with the Committee have been concerns in relation to the continued funding for district councils to undertake their activities under the Bill, the lack of an appeal mechanism for district councils in the Bill as currently drafted, and the Crown immunity issue. The Bill, as it stands, puts in place the standard Crown immunity provision, which sets out that the Crown will not be held criminally liable but can be taken to the High Court and deemed to have acted unlawfully. A declaration can be made against the Crown.

We thank the Committee for forwarding copies of the comments that it received over the summer. We have taken those on board and, as we indicated we would, we have held several meetings about the Bill with the various stakeholder groups over the summer. Those have been very fruitful. Among the groups that we met were the Planning Service of the Department of the Environment, the Regional Planning and Transportation Division and the Roads Service of the Department for Regional Development, and the Housing Division of the Department for Social Development. We have also met the Northern Ireland Housing Executive and representatives from the district councils.

All parties received various papers and copies of the Bill and the proposed Regulations. We then held lengthy discussions with all the stakeholders. We have offered them the opportunity to come back to us, either orally or in writing, to take up any outstanding issues. There is a table in the paperwork that details those issues, which originated from both the written and oral aspects of that exercise.

At the meetings, we explained to the stakeholders the contents of the Bill and the associated proposed requirements of the Relevant Authority Regulations. The Bill sets out a range of duties on district councils and relevant authorities. That is meaningless unless it is known who the relevant authorities will be. We undertook to draft Regulations on that and circulate them for discussion and comment during the summer. That was part of the stakeholder meetings. The various parties have seen those and have had an opportunity to comment.

The Department found that the meetings were well received and that there was general consensus in favour of the Bill proceeding.

The Deputy Chairperson: Could the Committee have a copy of the proposed Regulations?

Ms Anderson: Yes. I have an early draft, and there is also a draft consultation paper to accompany the Regulations.

Discussion centred on: clause 4, which deals with the designation of air quality management areas; clause 5, which deals with the action planning phase; clause 10, which relates to funding; and clause 11, which relates to the powers of authorised officers. I will go through each of those in turn.

On clause 4, the Planning Service and Regional Planning and Transportation Division queried how we would determine what size of an area would be declared as an air quality management area. We told them that air quality management areas will vary in size depending on need. In some instances in GB, air quality management areas can be as large as a borough council area, or they can be a very small portion of road or a roundabout. It relates to the exposure of individuals to levels of pollutant that are above health-based standards. There is no set size for them, and they will be determined by the circumstances. The Planning Service and Regional Planning and Transportation Division were content with that clarification.

Clause 5 is the action-planning phase. Various Departments, including the Department for Regional Development, the Department of the Environment and the Department for Social Development, may have activities to perform in relation to bringing forward action plans that would identify the actions that they propose to take, and the timescales in which they propose to take them, to bring about reductions in air pollution in those air quality management areas.

District councils expressed concern about the possible lack of commitment from Departments and other bodies — mostly the Northern Ireland Housing Executive — and that was where the Relevant Authority Regulations came into their own. We sent those Regulations to the district councils before the meetings, and we were able to talk our way through them. The Regulations prescribe for the various Departments and the Housing Executive which clauses of the Bill they will be responsible for actioning. The Relevant Authority Regulations go through the Bill clause by clause, indicating the Departments involved. They also state whether the district councils or the Northern Ireland Housing Executive have a role to play in respect of that clause or that subsection or paragraph within that clause. All of the stakeholders were happy with that, as it clarified who was expected to do what.

There are a few programmes and strategy documents on the transport and planning side that already contain significant air quality commitments. In addition, all of the stakeholders at the meeting were happy to give a verbal commitment to the air quality dimension, and they saw how it sat alongside their priorities and issues. Everybody was content that the Regulations locked people in, and that the commitment would, therefore, be assured.

District councils had concerns about the Planning Service taking air quality into account whenever it was producing area plans and policy documents. The Planning Service emphasised that it was keen to embrace that partnership approach. It pointed out that the Relevant Authority Regulations spell out the Planning Service’s role and the actions that it would have to come forward with, and that its strategy documents identify air quality as an issue that it would take on board in developing any plans. The Planning Service emphasised that air quality could be a material consideration for planning matters. When that was explained to the district councils, they were happy that through that — and particularly through the Relevant Authority Regulations — the Planning Service would be locked in. If planning issues were required, the Planning Service would have to come forward with proposals for inclusion in the action plans under the Bill, and those would also find their way into the relevant planning plans.

We also talked about policy guidance on the planning side, and the Planning Service agreed to make an input to the air quality technical guidance that we are formulating at the moment. The Planning Service mentioned its planning policy statement 1 (PPS1). The hope is that between the technical guidance, which the Department is working on with the Planning Service at the moment, and PPS1, there will be adequate coverage on the planning policy side with regard to air quality. That technical guidance will go out for consultation this winter. Therefore if councils feel that enough has not been done with regard to air quality policy, they will have an opportunity to voice their concerns.

Councils expressed concern about leverage over bodies such as housing associations and private-rented sector tenants. This concern arises from the pollution problems caused by domestic coal fires. The Housing Executive will be named as a relevant authority and, therefore, will have to act as appropriate. However, housing associations will not be named in the Relevant Authority Regulations because, legally, it would not be appropriate to do so.

Housing associations and private-rented sector tenants are already subject to the existing smoke control and clean air legislation, so councils already have a power to enforce the controls. The Department for Social Development assured us that it has leverage over housing associations, and that, if need be, it can use that to ensure compliance. Should commitment be lacking, the Department can take action. The Department of the Environment discussed the matter fully with the councils. They were wholly content with that position and could see how the system would work in practice.

The Committee received a copy of a letter that the Housing Executive sent to us. The Housing Executive discussed the matter with us fully at the stakeholder meetings. It is fair to say that the Housing Executive is not reluctant to play its role with regard to the Bill. It understands the purpose of the Bill, and it embraces the health and air quality dimensions of the executive’s policy documents. Those helped to bring about the fuel switching policy that the Housing Executive operates with regard to oil and gas. From that point of view, it is wholly on board.

However, the Housing Executive has concerns about timetabling. Its programme for switching to the cleaner fuels will not reach completion until about 2009-10. The target date for some of the air quality requirements with regard to the two pollutants that are relevant to the Housing Executive is 2005. The Department explained to the Housing Executive that actions will be required only where there are problems. Action will not be necessary across the whole of Northern Ireland. Where there are air quality problems that are going to cause difficulties, air quality management areas will be declared. The Department is not in a position to say how many of those there will be in Northern Ireland, but it is unlikely that large parts of Northern Ireland will be declared as air quality management areas.

In a sense, the Housing Executive, as with all the partners, will be asked to focus its attention in the air quality management areas that are declared. Some of those may be areas where the Housing Executive has already introduced its fuel switching policy. We have been very up front with the Housing Executive. The action planning process under the Bill will cause it to examine the timetables that it has set for itself. However, the Department and the councils will discuss the matter with the Housing Executive to see whether we can accommodate the air quality management area plan needs within the executive’s timetables. It may be that the Housing Executive will have to skew some of its timetables to accommodate the air quality pressures, but that will become apparent when we are further down the line.

The Department has been very open with the Housing Executive, and discussions are ongoing. The executive is content with the Bill. I stress — and it has been stressed to the Housing Executive — that the Bill itself does not contain the timetable in respect of air quality. It puts in place a mechanism for delivery; it identifies the players and states that action plans will be required. We will produce separate Regulations which will name the pollutants and identify the separate timeframes. Those Regulations are scheduled for winter of this year, and any concerns about them will be discussed.

Some of the target values for those pollutants are EC requirements, over which we have no discretion. Others are national health limits, and there may be some discretion about when they could be achieved. That is for another day; however, it may be helpful to know that some of those are EU-driven.

The Deputy Chairperson: It is October. Does "winter of this year" mean that the consultation will be in November or December?

Ms Anderson: All being well, it should be late November/early December. Supporting Regulations must be in place to allow people to understand and comment meaningfully on the Bill, and we worked on those during the summer. The Relevant Authority Regulations have been brought forward, and we aim to issue those next month. The other Regulations are not yet ironed out, but we hope that they will be ready for consultation in late November/early December.

Staying with clause 5, the district councils, the Roads Service, the Planning Service and Regional Planning and Transportation Division queried the timetabling for activities under the Bill. The EU-driven Air Quality Limit Value Regulations, and the Air Quality Regulations, which will set out the national requirements for the health-based pollutant levels, will define the timeframes for work to be carried out. In addition, all the internal governmental stakeholders are assisting us in drawing up a suite of technical guidance to assist all of the stakeholders with the activities required under the Bill. That is well under way and should be sent out for consultation in November/December.

All of that will assist in identifying and setting out the timetable, which is not covered in the Bill. The players are content to clear the Bill and will examine and comment on the timetabling separately.

The Roads Service expressed concern that it had not received early feedback from district councils on potential problems. The Committee may recall that almost a year ago district councils began a voluntary review and assessment process. It is still at an early stage, and there is not much to share with other stakeholders. Government stakeholders are concerned that information should be shared with them as early as possible. The district councils have assured us that as soon as there is anything to share it will be shared.

In addition, the relevant councils have set up a Greater Belfast Air Quality Partnership. The Roads Service and the Department of the Environment have been invited to attend as observers. When the partnership has relevant information to share with others, such as the Planning Service, the Department for Social Development or the Housing Executive, those bodies will be invited on as observers. Again, the players are content with that.

The Committee had raised the issue of the lack of appeal mechanisms. District councils asked us to clarify their right to appeal under the Bill, in the context of possible disagreement between themselves and a Department in which the Department of the Environment was left as the arbitrator. It was spelt out to councils that although the Department of the Environment would be the arbitrator in such circumstances, the matter would not be dealt with by us as individuals; it would instead be contracted to an independent consultant, skilled in that type of work, and the consultant would advise us. That is appropriate, because it boils down to action plans and technical reports. The problem pollutants will be set out, together with their levels, their likely levels in the target years, and the proportion of reduction required.

The sources of the pollutants would be considered, and, through that, the type of reactions required from the various stakeholders will be determined. It is appropriate that an external consultant, skilled in this type of work, should carry that out. He would simply report back to the Department of the Environment. We would then engage with the stakeholders and help them to take on board his views and concerns. When we talked through that, the councils were wholly content with that approach. They could see the rationale for having adopted that approach in the Bill. It made sense in the context in which we were operating.

The district councils had no concerns about the Department of the Environment having a power of direction over them. The Environment Committee raised that issue previously. I raised that with the district councils as an Environment Committee concern, but they indicated that they were content with it. We would only use that in the most extreme circumstances, and the district councils were content with that position. That is the summation of clause 5. Would anyone like to ask any questions before I move on to the funding?

The Deputy Chairperson: No. We can move on.

Ms Anderson: Clause 10 is the funding clause. Again, the Environment Committee had expressed concerns about this clause. District councils raised three particular concerns, one of which related to the grants or loans. The Bill allows for grants or loans. We currently grant money to district councils. They raised a request that that be made available to the councils at all times. The Bill provides a power for the Department of the Environment to fund work on air quality. That is a mandatory power, but it is not an obligatory power in that the Department does not have to fund. The Bill states that the Department "may" fund.

The Department indicated that it currently views the voluntary air quality management process as a key element in improving air quality in the short to medium term and that there is programmed funding of that until 2003-04. After that, future funding requirements will be considered by the Department. Those considerations will take into account the types and levels of funds made available to local authorities in GB, and the district council need for funding. My colleague, Dan Kennedy, could go into more detail, but most of the funding up to now has been for equipment or for particular activities. Much of that is one-off funding.

Once we get further down the action planning process, many of the activities required are going to relate to the creation of smoke control areas and perhaps to traffic measures. The traffic measure costs will be lifted by the Department for Regional Development’s Roads Service. If district councils decide to put in place smoke control areas, a separate funding line has already been provided by the Department under the clean-air legislation for that. Therefore the funding for that would not fall under the Bill.

We would be looking to fund additional areas, which would have to be based on need. District councils were content with that approach and can see that any funding will have to be on a needs basis. We do not know what those needs will be. Therefore we will address them when we do. The review and assessment process being carried out by district councils will inform that, but not enough information is coming from that to currently allow us to identify what those needs will be.

The Deputy Chairperson: When will criteria be available for the councils to see if they will qualify for any available grant?

Ms Anderson: They are currently being grant-aided under the review and assessment process. That will continue until 2004. There is an open door on smoke control areas. The district councils can apply to the Department for funding under smoke control. There are set criteria for the available funding under that. My colleague, Dan Kennedy, is perhaps best placed to speak about funding beyond 2004. However, it can be encapsulated by saying that when the review and assessment processes identify the sources of the pollution, and the degree of reduction required from each of the sources, we will be better informed to know what type of funding schemes might be necessary. The lack of information to enable us to identify additional funding schemes is holding us back; it is not because of any reticence on the Department’s part. Dan Kennedy might want to comment at this stage.

Mr Kennedy: No, I think that you have covered most of the issues.

Mrs Nelis: Will there be established criteria for additional funding in respect of those areas with the highest rate of smoke and sulphur dioxide? I note that Strabane District Council submitted a response to the consultation which states that it had the highest levels — 32 micrograms per cubic metre — and Derry had the next highest. The Housing Executive has already stated that it is not in a position to address the changeover in the solid fuel heating system, and that means that those sulphur dioxide levels in Strabane and Derry are likely to remain. How do you think that district councils should address this issue, and what criteria will you be using for additional funding?

Ms Anderson: The response from Strabane District Council contained allegations about its position vis-à-vis its pollution status in the UK. The Department has already responded to the council on that allegation. We are not disputing that it would have pollution problems, but the monitoring equipment from which the figures were derived had not been in position for a sufficient period to provide a true reflection of the council’s position in the pollution league. Mr Kennedy could clarify that.

Mr Kennedy: The monitoring site had only been operational for less than a year. When the review and assessment process is complete, it will help to give a better picture of the extent of the pollution, especially in the Strabane area, and it will also project forward to the target dates and allow a reasonable assessment. If levels were significant following that review, I would anticipate that smoke control would be a factor. The Department of the Environment already has a funding line for providing moneys for smoke control.

Ms Anderson: The only action that district councils will be able to take under the Bill relates to the imposition of smoke control areas. The clean-air legislation currently allows councils to declare those smoke control areas, and the Department has substantial amounts of money available to provide funding to them. The Housing Executive will have to put forward its case for funding. We have told it that if there were air quality pressures, we would be prepared to support it on the internal papers that would work their way through the Department for Social Development. However, it would not be a case of the Department of the Environment funding the Housing Executive: that would be a massive policy departure. However, funding lines already exist for district councils. Where air quality management areas are declared, action plans will identify the actions to be taken by the various parties, and the availability of funds to undertake those actions will be crucial.

Mrs Nelis: Is air quality control a cross-cutting issue?

Ms Anderson: It certainly is a cross-cutting issue.

Mrs Nelis: That should impact on the funding arrangements.

Ms Anderson: It ought to, but you will appreciate that it is not really for me to comment on another Department’s funding arrangements.

The Deputy Chairperson: Dunmurry, in my constituency, was rated two years ago as being the village with the highest pollution, and the council had to take action. The area contained an estate that was not a smokeless zone, and the council is working with the Housing Executive to try to eradicate that in the next few years. It cannot be done all at once. The Housing Executive will fund the change from coal to other fuels.

Ms Anderson: District councils and the Housing Executive already work in partnership in relation to smoke control areas. Where air quality monitoring areas are declared, those councils that have not turned their attention to smoke control in the past might have to. Some councils, such as Belfast, have adopted it in full, and other councils have not, but it may be appropriate for them to do. The Bill is going to focus their attention on that.

Clause 11 relates to the powers of authorised officers to enter residential premises, and a couple of issues were raised about that. The Northern Ireland Human Rights Commission has told the Environment Committee that it would like to see provision in the Bill, or at least an indication of the Department’s intention, to establish a code of practice for the exercise of this power. The Bill allows authorised officers to enter residential premises, having given seven days’ notice with the resident’s consent, or having given seven days’ notice with a warrant from a Justice of the Peace.

That is similar to the provisions in other legislation. We discussed that with district councils at the stakeholder meetings because any additional code of practice would impact on them. They said that they already deal with a wide range of legislation. The Police and Criminal Evidence (Northern Ireland) Order 1989, the codes of practice under it and the Cabinet Office’s enforcement concordat provide them with guidelines in and around this area. They felt that that might be enough to satisfy the Human Rights Commission. We have considered the Police and Criminal Evidence (Northern Ireland) Order 1989, the codes of practice under it and the enforcement concordat, and we have extracted what appeared to be the relevant material from those. We intend to liaise directly with the Human Rights Commission and see whether that would be sufficient to satisfy it. If the Committee is content, we will adopt that direct approach, and we will report back to you.

The Deputy Chairperson: Yes. We are content.

Ms Anderson: We hope to make contact with the Human Rights Commission next week with a view to exchanging papers and arranging an early meeting to try to resolve its concerns. We have liaised with it previously on the Bill. It did not raise the issue at that time, otherwise we would perhaps have been further on, but we hope to resolve the issue soon.

One of the district councils stated that the seven days’ prior notice of entry to residential premises seemed excessive. However, that is the provision in the equivalent GB legislation, and it is equivalent to provision in other pieces of Northern Ireland environmental legislation. On that basis, we would be content to stand with it. The Environment Committee did not raise the issue previously. We explained that at the stakeholder meetings, and the district councils indicated contentment with that on that basis.

The last issue, which is the extension of the gas distribution system throughout Northern Ireland, has also been raised by the Environment Committee. It does not really fit in under any of the clauses in the Bill.

The Department appreciates fully that the availability of natural gas in Northern Ireland has an impact on air quality. Having said that, fuel distribution is a separate policy issue to that under the Bill. The Bill just seeks to put in place a mechanism to require air quality in Northern Ireland to be looked at and actioned where it is bad. When the air pollution problems that are identified under the Bill cannot be reduced adequately using available measures, which will include fuel types, the matter will be for collective consideration by our Department and other Departments or agencies.

We have explained that to the Environment Committee previously. We went into that in some detail at the various stakeholder meetings. The district councils and others indicated that they were content with that; they appreciated that it was not an issue for the Bill. It is perhaps a general issue of concern, but it is not an issue for the Bill. We are content to leave it on that basis.

I have gone quickly through that because I wanted to give you a flavour of what has been involved and the issues that we have been able to satisfy the various stakeholders on. That may leave you in a better position to identify what you wish to take forward with us.

Mr Armstrong: Is there anything in the Bill relating to industrial pollution or waste pollution?

Ms Anderson: Those sorts of pollution will be dealt with under the pollution prevention and control regime. Generally, pollution from industry affects the air quality in the immediate surrounding area. However, industrial pollution will be dealt with under the appropriate legislation, and neither the Bill nor the mechanisms under it will be used to effect improvements in sectors where more appropriate legislation already exists.

The Deputy Chairperson: If the Committee is content, I would like to thank Ms Anderson and her team for all the work that they did during the summer. We appreciate the very concise document given to the Committee this morning.

Mrs Nelis: Will there be any right to compensation for those who have been affected by air pollution?

Ms Anderson: No.

Mrs Nelis: Will that be dealt with in separate legislation?

Ms Anderson: The Department has no intention of developing legislation to deal with cases where the health of individuals has been affected. I will seek legal advice on that matter before reporting back to the Committee, if members are content.

The Deputy Chairperson: OK. Thank you.

3 October 2002  (i) / Menu / 3 October 2002 (iii)