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

Mr D Leonard ) Department
Mr B Murphy ) of the
Mr G Seymour ) Environment

Mr Poots: Clause 12 deals with public bodies that are used to carry out work in ASSIs. Are there different sets of regulations for operators in ASSIs in that public bodies will be allowed to carry out operations in such a way as to give rise to as little damage as is reasonably practicable in all the circumstances, and then those bodies will restore the site to its former condition, so far as is reasonably practicable, if any such damage does occur. In clause 12(7) it states:

"This section does not apply in relation to operations carried out by the Department."

In that instance, it seems that the Department can almost do what it wishes. Public bodies can do something less, and private landowners can probably do nothing at all.

Mr Seymour: Clause 12(7) has been added because you cannot write a piece of legislation about internal consultation arrangements in the Department. The Department cannot consult itself in quite the same way. Legislators have added that subsection, as it is common sense.

The Chairperson: Is the inference from Mr Poots a reality?

Mr Seymour: I would like to think that the Department always follows the guidelines to the letter, but we cannot consult ourselves.

Mr Poots: Before the Departments were split, the former Department of the Environment could pollute whatever it liked and get Crown immunity, but it came down on private individuals and industries like a tonne of bricks. If you are asking me to put total faith in the Department to act responsibly at all times, I am afraid that, from past experience, I cannot do that.

Clause 12(7) should be amended in a way that would take some cognisance of previous clauses relating to public bodies when carrying out activities. The same precautionary approach should be put in place. Are public bodies treated differently from private individuals and landowners?

Mr Seymour: You are referring to services that were within the remit of the Department of the Environment but which now come under another Department and so would be subject to the provisions of this Bill. There is a slight difference between the arrangements for public bodies and private landowners. Mr Murphy has given the reason: it is recognition that public bodies have statutory functions. We have taken the line adopted in the English and Welsh legislation, the Countryside and Rights of Way Act 2000. We did not feel that there was a case to introduce more onerous restrictions on public bodies here than had been introduced in the rest of the UK, particularly in view of the fact that the current informal liaison arrangements between public bodies and us are probably much stronger in Northern Ireland than in Great Britain, where the authorities are more dispersed.

Mr Poots: But the onerous conditions are applied to private landowners.

Mr Seymour: They are serious and fairly onerous requirements, and they are supported later in the text by the section on offences. The aim is to ensure that public bodies set a very good example in the management of land within ASSIs and also in the way that they consent to other activities that could impinge upon ASSIs.

Mrs Carson: How many ASSIs are in the control of public bodies? The fact that there are three sections dealing with such bodies suggests that the number is large.

Mr Seymour: It varies enormously. Large parts of some sites, such as the Mournes and the Garron Plateau, are owned by a public body — in those two cases it is the Water Service. A public body can therefore be a very major landowner. In other cases, public bodies have functions that could affect ASSIs. For example, Northern Ireland Electricity might have to cut a swathe through woodland to allow power lines to be erected. It varies, but from time to time all ASSIs could be affected by the activities of public bodies. The definition of "public bodies" would include statutory bodies such as Northern Ireland Electricity.

Mrs Carson: Mr Poots has rightly raised the fact that the sections do not apply to operations carried out by the Department. Clause 15, which deals with the power to carry out works, reads:

"The Department may carry out such works and do such other things on land acquired under section 14 as the Department thinks necessary or expedient ".

The Department seems omnipotent. You say that it will always do things correctly, but what power does it have over work done by subcontractors?

Mr Seymour: If you disregard the Driver and Vehicle Licensing Agency and the Planning Service, which are not involved in practical work, you are more or less left with the Environment and Heritage Service. It is very difficult to legislate for a Department trying to consult with itself. However, we abide by the principles. If wardens and site staff manage sites that we own within ASSIs, we ask them to apply for consent to us as if they were any other landowner. That is obviously not something that we can easily build into the legislation. However, we are at least seen to be following the same principles that we would expect other landowners to keep to.

Mrs Carson: Is that written into your notes of guidance?

The Chairperson: The Department’s duties should be no less onerous than the general public’s; that should be included. Quite honestly, the wording in clause 12(7):

"This section does not apply in relation to operations carried out by the Department"

is removing responsibility from the Department. The Department’s responsibilities should be no less onerous than those of the individual. He or she has far less money than the Department to deal with matters.

Mr Seymour: We could ask the Department’s legal advisers for guidance on that issue.

The Chairperson: Several people are concerned about the matter.

Mr Ford: I agree that it may be difficult to define that in the Bill, but Mrs Carson’s point is another example of why we must see proper guidance notes, which state that departmental officials are meant to take full account of the provisions.

Mr Murphy: Absolutely.

Mr Ford: Regardless of when guidance notes become official, it should be possible for the Committee to see a draft before the end of Committee Stage.

The Chairperson: Definitely, it is vital. Before the Committee approves the Bill we need to see what the guidance notes are tying the Department down to.

Mr Murphy: My recollection is that clause 12(7) was drafted following legal advice. However, as Mr Seymour said, we will reconsider it.

The Chairperson: Even with legal advice, the Department should cover its back.

Mr Murphy: Clauses 12 and 13 go together. It is the same procedure. Clause 12 applies to the body that wishes to carry out an operation, and clause 13 applies to the body that gives others consent to carry out an operation.

The Chairperson: Clause 14 gives the Department the power to acquire land.

Mr Murphy: This is an existing power, but the difference is that clause 14 removes the time restriction. It is a power of last resort. Mr Seymour will explain it more fully, but my recollection is that it has never been exercised for a compulsory purchase against a landowner’s wish. More often, the reverse has been the case, when landowners have suggested that the Department should purchase their land.

Mr Poots: I am unimpressed with clause 14. It gives the Department excessive powers. In my view, if land is to be vested, the process should go through a court, whereby a landowner can put his or her case as to why he or she wishes to keep the land. It is unreasonable that the Department can act as judge, jury and executioner; landowners can have land taken off them, and the Department can hold on to it for a while and then sell it to the original owner’s neighbour. Essentially, that can be done; it has not been done, and it may be unlikely that it is done but, nevertheless, the excessive power exists and could be exercised.

The Chairperson: Are you referring to 14(6)?

Mr Poots: Yes.

Mr Murphy: The safeguards that Mr Poots feels are necessary are contained in the Bill.

Mr Leonard: The key provision is clause 14(3), which states that

"Sections 97(2) and (3) of, and Schedule 6 to, the Local Government Act (Northern Ireland) 1972 (c. 9) shall apply subject to the modifications set out in Schedule 2 to the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985 (NI 1) for the purpose of vesting orders under this section".

That provision requires the Department to publish notice of its intention to make a vesting. It will give owners, occupiers and other parties the opportunity to make representations. If the disagreements cannot be resolved, an inquiry will be held, during which members of the public, owners and occupiers can make their points of view known. An inspector will then make a report or recommendation to the Department, which can then decide to make the order; make it with modifications; or refuse to make it.

If the Department makes the order, and compensation matters arise that cannot be resolved — in other words, if an owner or occupier is unhappy with the amount of compensation that he or she has been offered — the case is referred to the Lands Tribunal for Northern Ireland for independent arbitration. Ultimately, all the clauses can be subject to judicial review.

Mr Poots: That is another matter. Judicial reviews are extremely expensive. That would not give a landowner enough cover to seek a judicial review against the Department. Essentially, you said that the Department would bring the case and decide on it. That is wrong in principle. Someone, independent of the Department, should decide on the merits and demerits of the case. The Department is right to bring the case, and is within its powers in doing so; however, it is unreasonable that the Department should decide on it. The Department will almost certainly come down on the side of its own officials.

The Chairperson: The response you made earlier goes against this one. You said that the Department cannot talk to itself. Surely it could not be common justice, in any legal sense, for the Department to bring an action and then determine that action.

It goes deeper. Mr Poots referred to clause 14(6), which says:

"Where the Department is of the opinion that any land acquired under this section would be more expediently or efficiently managed or conserved in the public interest by any other person, the Department may convey (either for value or otherwise) that land to that person."

Under that subsection, the land can be taken from one person and, as Mr Poots rightly said, given to a neighbour.

Mr Seymour: Perhaps the answer lies in the guidance notes, to which we have referred on several occasions.

The Chairperson: It cannot lie in the guidance notes, because there are none.

Mr Seymour: We have used the term before. This is a power of last resort, which is already in our legislation. We are only extending the circumstances in which it may be used. At the moment, the power is constrained to a maximum period of nine months after a consent application has been received. It is very time-bound.

The Chairperson: The reason you give has not washed with the Committee in the past. We are not living in the past. The Committee has responsibility to examine legislation and, if it puts its finger of approval on legislation, then that legislation is approved. If the Committee feels that a power, irrespective of whether it was given in the past, is not right or relevant for society, it has the right to make that determination. If the Committee feels strongly about the matter, it can ensure that representation is made until such a power is removed.

We are talking about legislation that is coming into effect under the Bill. There may have been such a power in the past but that, in itself, is not an argument. I am not saying that just because there was a power in the past then there should not be the same power in the future, but saying that it exists is not a good enough reason for its being in this specific Bill. Members are raising concerns about that power. Clause 14(6) specifically says that where, in the opinion of the Department,

"any land acquired under this section would be more expediently or efficiently managed or conserved in the public interest by any other person —

"Person", not "body" —

"— the Department may convey (either for value or otherwise) that land to that person."

That power is very wide-ranging.

Mr Murphy: I shall ask Mr Seymour to address the latter point. I take your point concerning legislation. We must start from the basis that we are required to serve and protect those areas that are of special interest to us. Our basis comes from conservation.

We exercise this particular power only when we are satisfied that we have been unable to conclude a management agreement on reasonable terms or that the landowner, having entered into such an agreement, is not living up to it. We might then seek to use that power. In doing so, however, we are constrained by what Mr Leonard outlined. In a sense, that is where we are coming from in the legislation.

I know the intent of clause 14(6), and Mr Seymour will speak about that. Normally, it has been applied when conservation bodies agree to manage a particular piece of land: the power allows us to let them do just that. That is the sense of the power.

The Chairperson: There is nothing about "bodies" in clause 14(6). It refers to a "person".

Mr Seymour: The wording is also trying to reflect the circumstances where we acquire land but want to lease it to a neighbouring landowner for the purposes of grazing, for example. There might be circumstances when we would want to do that.

The Chairperson: So you take if off one person and instead of leasing it to the person whom you took it off, you lease it to the neighbour?

Mr Poots: No, it does not say that. It says, "may convey". Conveyance relates to the sale of land; it does not deal with leasing.

Mr Seymour: It is trying to cover a range of possibilities in a broad sense so that we can act in the most flexible way possible for the benefit of the land management. We are happy to reflect on that and whether that wording needs to be quite so open-ended.

The Chairperson: In response to Mr Poots’s first point, Mr Leonard confirmed that the Department was bringing an issue and was determining the same issue. You cannot talk to yourselves or apply directives to yourselves, as you told us a moment ago.

Mr Seymour: This power is built around the Government’s powers of compulsory purchase across the board. I am confident that the Department’s powers of compulsory purchase in other aspects would be exactly the same. It just builds on those powers, including the ability to hold an inquiry.

Mr Armstrong: Although I missed the beginning, it seems that there is little thought left for the person that owned the land in the first place. The Department is judge, jury and executioner. You seem to be a law onto yourselves.

Mrs Nelis: I am concerned by the number of times you mentioned "power of last resort" in response to questions this morning. My considered opinion is that the law is always used as a power of first resort rather than of last resort. It is not good enough to say that we should approve clauses in the Bill that give the Department sweeping powers that you tell us may be used as a last resort. Neither private landowners nor we have any guarantee of that. Using a statutory power as a last resort is not a good enough explanation.

Mr Seymour: One can reflect upon our existing powers of compulsory purchase. We have not used those in 17 years. That is our track record to date. I realise that we are looking to the future, and this must perhaps be spelt out in the guidance notes, which we have talked about. Our track record is that we have not used the power of last resort.

The last thing on earth we want is to acquire many bits of land all over the country, which we cannot manage ourselves. The power would be used only in extreme circumstances where the integrity of a whole site — a site that perhaps has a European designation — is being threatened or damaged because of one activity on one particular piece of land. That might be because of an absentee landowner or perhaps because of a landowner that cannot even be traced. We are often faced with a situation where we cannot even trace a landowner.

The Chairperson: You may be referring to England and such places when speaking about absentee landowners. We are talking about Northern Ireland where there are very few absentee landowners.

You mentioned that the Department was looking at the issue from the point of view of conservation, but so is the Committee. Let it not be suggested that the Committee is ignoring that issue. However, we are concerned about sweeping powers. The powers may have been in existence but were not exercised in the past; however, the Committee must give approval to certain provisions, and just because some things have happened in the past, it does not mean that the Committee will approve their happening in the future. Subsection 14(6) causes me deep concern.

Mr Murphy: I apologise unreservedly if it sounded as though I was implying that the Committee was not concerned about conservation. I was trying to put two things into context and show how the Department is concerned about the future. The nature of land owning and management over the next 25 or 30 years will change because of, for example, CAP reform, the changes in food production, and all the issues that face farmers in Northern Ireland.

The second aspect is the presumption in European law that you protect areas of special scientific interest. The Bill is helping us to comply with that European legislation. Our division deals with increasing amounts of legislation coming from Europe, which is often viewed as being restrictive and imposing powers on Departments and agencies. That is the climate in which we have to operate.

European legislation is continually being strengthened in certain areas. On the other hand, the Department recognises that the nature of land management will change during the next 25 years, and the Bill is trying to reflect that in its tenor and tone. The Department’s approach to consultation has been one of partnership and seeking agreement.

Mr Ford: No reasonable person could object to the terms in which you outlined certain concerns, such as the integrity of a significant site being at risk, or the matter being dealt with as a last resort. It seems that clause 14(2) is much looser. One might conclude that clause 14(2)(a) suggests that even if land is being managed properly, but the owner does not want to enter into a formal agreement, the Department might exercise its right to vest the land. Although, that was clearly not the tenor of your remarks, it is how I, as a layperson, read the clause.

Could the Department strengthen the form of words used in clause 14(2) to indicate that the circumstances in which the Department would act would be more extreme than the Bill seems to indicate? That would not address the concerns about the matter of disposal in clause 14(6) but it might address some of the Committee’s concerns.

Mr Seymour: The Department will examine that clause. The point of clause 14(2)(a) is that it is a safeguard. The Department must demonstrate that it has attempted to seek a management agreement. It cannot vest land easily. However, if my colleagues are happy, we will examine the clause again and see whether the wording can reflect that vesting land is a last resort.

Mr Ford: It seems that minor amendments to clause 14(2) might make it clearer.

Mrs Carson: How much of the Bill is unique to Northern Ireland, and how much has been lifted en bloc from the Countryside and Rights of Way Act 2000 or the Scottish legislation that was passed?

Mr Seymour: The Scottish legislation is still progressing. The Northern Ireland legislation is not lifted en bloc because the Department’s consultation exercises brought us down slightly different routes. However, the laws are comparable in severity and breadth of measures. Therefore the Northern Ireland legislation is comparable without being identical to what is being introduced to England and Wales.

Mrs Carson: What parts are different?

Mr Seymour: It would take a long time to go through all of the differences. There are subtle differences because Northern Ireland’s processes are slightly different. The clause concerning the compulsory purchase powers — the powers to acquire land — is more or less identical to what is being introduced in England and Wales. It is what has already been introduced through the Countryside and Rights of Way Act 2000, and it is a relaxation of the current time constraints on which one can use compulsory purchase as a power. That was introduced into England and Wales, and it is virtually identical here.

Mrs Carson: Therefore the clause related to acquiring land is just a mirror image of what has gone through in the Countryside and Rights of Way Act 2000?

Mr Seymour: Yes, but with different references to Northern Ireland legislation.

Mrs Carson: But basically you have transposed the Countryside and Rights of Way Act 2000 en bloc.

Mr Seymour: Yes, for clause 14.

Mr Murphy: I shall explain the process, Mr Chairperson. There was a lengthy consultation, of which you are aware. It was never the Department’s intention to lift the countryside and rights of way legislation. We wanted to produce legislation that suited the requirements of Northern Ireland. However, when it came to the nitty-gritty we looked to the Countryside and Rights of Way Act 2000 to see if the suitable and appropriate legislation could be lifted from it. As Mr Seymour said, in many instances legislation has been lifted but in other cases it has been tweaked to suit the Northern Ireland circumstances. We started off to produce legislation which would be applicable to Northern Ireland but which reflected the similar pattern across the UK.

Clause 15 enables the Department to carry out work necessary to protect the integrity of an area of special scientific interest where it has acquired land.

Clause 16 deals with powers of entry. It allows officials to go onto land to inspect or check on the integrity of an ASSI and to see whether it has been damaged. Safeguards are in place which state that the Department must speak to the landowner to get permission to go onto the land. The necessity of that power was recognised, and exists because of damage being caused by third parties without the permission or knowledge of a landowner, but it allows the Department to inspect the site.

The Chairperson: Has that been checked by the Human Rights Commission?

Mr Leonard: The entire Bill has been cleared by the Human Rights Commission.

Mr Murphy: It is similar to powers that already exist for officials in the Planning Service and the Department of Agriculture and Rural Development.

The Chairperson: I see that the Ulster Farmers’ Union suggested an independent body to oversee the use of the Bill.

Mr Murphy: The Department was not sure what the Ulster Farmers’ Union meant or how its suggestion would be exercised. One must look at the practical application of the Bill. As the law stands, if we want to go onto their land we seek permission from the landowner. We are not quite sure what independent mechanism would be required.

The Chairperson: Have you asked the Ulster Farmers’ Union for an explanation?

Mr Murphy: We were given an explanation but it did not make things any clearer. We met with representatives from the union a couple of weeks ago to discuss several issues. I think that they are concerned that we might enter their land without permission.

The Chairperson: Have you any documentation from them?

Mr Murphy: We have written to and met them, but we have no documentation from them other than the response to the consultation.

The Chairperson: We want to find out what that point is.

Mr Murphy: Clause 17 deals with the power to make by-laws. Clause 18 covers offences, and relates to the requirements of clause 5. Clause 18(2) and 18(3) cover how we might deal with public bodies. I feel that it complies with clause 12. It will become an offence to intentionally or recklessly damage an ASSI — there is no such provision in existing legislation.

Mrs Nelis: I am not familiar with this issue. Can you give an example of how someone could intentionally or recklessly damage a site?

Mr Seymour: Under current legislation, an offence is committed only if someone carries out an operation in an ASSI without notifying us in advance or seeking our consent — that provision applies only to owners or occupiers. People who fall outside that bracket — the so-called "third parties" — are not committing an offence if they carry out an activity that damages an ASSI. The clauses are largely intended to pick up on those individuals.

In practice, it is deemed to be reasonable that people are at least informed that they are carrying out an activity within an ASSI, and that they are damaging the site. If, having been thus informed, they continue to carry out that operation, they are considered to have intentionally or recklessly damaged the site and therefore to have committed an offence.

Mr Murphy: Another example is fly-tipping. Third parties often dump rubble in wetland areas, especially in County Down — sometimes they do so in the middle of the night. That is an example of reckless damage and that is the sort of activity that we are trying to stop.

Mrs Nelis: Ramblers may plough through ASSIs.

Mr Seymour: It is unlikely that a group of ramblers would do much damage to an ASSI. However, if they did, one could not say that their actions were intentional or reckless unless they had been warned that the activity in which they were about to engage would damage the site. It is intended as a safeguard for people who perhaps innocently take part in an activity that causes damage.

Mr Murphy: Clause 19 relates to the powers to require an offender to restore and make good as far a practicable the damage caused by their activity.

The Chairperson: Is the Committee’s emphasis on the need for restoration to be extended to public bodies covered by clause 19?

Mr Murphy: Yes.

Mr Leonard: Clause 19(1)(a) applies the principles of restoration where offences have been committed by public bodies.

Mr Murphy: Clause 20 has been carried forward from the existing legislation, which requires that the Department, the council and any other bodies have regard to the needs of agriculture, forestry and fisheries.

Mr Murphy: Clause 21 deals with the issue of Crown immunity. I noted the Committee’s comments on that issue.

Mr Ford: Can you explain subsection 2 which deal with the non-application of sections 5 to 10?

Mr Leonard: This goes to the very heart of Crown immunity. One arm of the Crown will refuse consent for an operation to be carried out by another arm of the Crown. This is a cross-cutting matter that extends across the issue of government throughout Northern Ireland.

Mr Ford: If that is the case, why does it need to be spelt out?

Mr Leonard: I think that it was done on the advice of the draftsman.

Mr Ford: It surprises me that it was included at all.

Mr Leonard: Given the general presumption of Crown immunity, it surprises me that it was deemed necessary to spell that out in the Bill.

Mrs Nelis: I share Mr Ford’s concerns. Many areas of scientific interest, such as the parkland at Magilligan, have already been damaged by the fact of Crown immunity. Will Crown immunity be subject to EU legislation?

Mr Murphy: I do not know. As a consequence of this and concerns that the Committee has in respect of other legislation on Crown immunity, we have begun to examine the matter. As Mr Leonard said, it goes way beyond this piece of legislation. It is a cross-cutting matter that would require decisions to be made by the Executive. We are taking advice from lawyers on the various aspects of the matter, with a view to making proposals to the Minister on how progress could be made. Assuming that we wished to do something about this, proposals would have to be tabled at an Executive meeting for discussion, because it has implications that go way beyond the Department of the Environment’s responsibility.

The Chairperson: It has been mentioned on several occasions in the past that failures in action of a Department are treated differently from those of an ordinary citizen. That is not a sustainable position.

Mr Murphy: That is a widely-held view, and not just within the Committee. It has been the subject of some discussion at UK level. The possibility of a challenge could be being considered at European level. I do not know whether it is. However, it would not surprise me.

Mrs Nelis: I accept your point about crown immunity being cross-cutting. The Committee is aware of that. However, can crown immunity be legally upheld within EU legislation? That issue must be investigated.

Mr Murphy: As I have explained, the Department is already examining the issue of crown immunity. It must first seek legal advice.

The Chairperson: The issue goes beyond the Department’s remit.

Mr Murphy: Clause 23 provides the transitional arrangements from the current legislation to the new legislation. There are various requirements. One requirement, which was introduced as a result of consultation, was that management statements would be issued to existing ASSI landowners. That is included as part of the transitional arrangements, which will be applied over a period of five years. Five years seems like a long time. However, the requirements will be labour-intensive, because there are 5,000 landowners.

Mr Ford: I am delighted that the Department will manage to complete the review within five years. According to the explanatory and financial memorandum, it believes that it has the necessary resources. I am not convinced of that. However, I accept its assurance. The Committee wants the Department to live up to that assurance.

Mr Murphy: In the present climate, the Department of the Environment’s resources are being looked upon more sympathetically, due to the efforts of both the Department and the Committee.

The Chairperson: That is the end of the consultation. Several matters must be considered afresh. Thank you for your assistance.

10 October 2002 (i) / Menu