Thursday 30 May 2002

Rev Dr William McCrea (Chairperson)
Ms Lewsley (Deputy Chairperson)
Mr Armstrong
Mr A Doherty
Mr Ford
Mr McClarty
Mr M Murphy
Mr Poots
Mr Watson

Mr D Small ) The Department of the Environment
Mr I Maye

1.

The Chairperson: I welcome Mr David Small and Mr Ian Maye from the Department of the Environment. They will give a presentation, after which Members can ask questions.

2.

Mr Maye: I thank the Committee for inviting us here. It is a pleasure to reach the stage of presenting a Bill to the Assembly, because it seems to be a long time since we first discussed this issue last June. We have achieved our set target, which was to bring the Bill to the Assembly before the summer recess. We are now on target to have the Bill introduced on 10 June, subject to the Speaker's clearance. He received a letter this morning, and we do not foresee any difficulty.

3.

The Chairperson: It is of course also subject to clearance of the Committee.

4.

Mr Maye: Absolutely.

5.

The Chairperson: Do not take anything for granted.

6.

Mr Maye: I will now bring you up to speed on how we reached this juncture, and what we intend doing now. I will then pass over to Mr Small, who will talk in more detail about the timetable for the rest of the Bill.

7.

We received Executive Committee clearance to introduce the Bill yesterday, which is why we were able to go to the Speaker overnight, and also the Secretary of State's clearance for the current provisions. As you saw from the letter, the Minister has entered into discussions with the Secretary of State on issues that this Committee has raised regarding higher fines in Magistrate's Courts, creating a new offence of commencing development without lawful permission, and third-party appeals. Although we do not require the Secretary of State's consent, there is a wider UK interest, since what we do will inevitably influence the other jurisdictions.

8.

The Minister has briefly discussed the principle with the Secretary of State, who now wants concrete evidence and details. That is the process in which the Minister and the Department are now engaged. Over the next few weeks the Minister would like to engage further with the Committee, particularly on higher fines, but also the creation of a new criminal offence. As you know, we are committed to bringing a paper on creating the new criminal offence to the Committee before the summer recess, and we are actively working on it. We want to have the final version of the Queen's University research so that we can polish up the Bill for the Committee. However, we are certainly on target to deliver it before the summer recess - hopefully, as soon as possible.

9.

We want to engage with the Committee on the correct level of fines. At present we are aiming for £20,000, but the Committee has expressed its concern that the figure is too low. Indeed, the original level of £20,000 was set back in 1991, and we will need to take such matters as inflation into account. The Department will soon put a short paper to the Committee on how we might assess the appropriate level of fines in the Magistrate's Court, bearing in mind our commitment to take cases to the Crown Court where appropriate, an arena in which there will be no limit on what fines may be imposed. We wish to strike a balance and are aware of the Committee's concerns, as is the Minister. He is sympathetic to those concerns, and has informed the Secretary of State as such.

10.

At present we are on target to introduce the Bill on 10 June 2002. If we do so, the Second Stage debate may take place on 24 June. Procedures recently agreed by the Assembly would mean that the Bill goes straight to the Committee after the debate on 24 June, so you will receive it before the summer recess. We forwarded a draft of the Bill last week, since we were keen for you to see it before its introduction. We also thought that it would be useful for you to see the letter to the Secretary of State; indeed, we agreed that when we last met.

11.

I have talked about the higher fines and the proposed new offence. The Minister is sympathetic to the Committee's wishes, but wants to discuss the detail, which is why we are bringing forward a paper. The Department is also committed to bringing forward a detailed policy paper on third-party appeals before the summer recess, and we are engaged in discussions with the Minister on what that paper will cover. We await the final report from Queen's University to refine the paper, but once we have done so we aim to present it to the Committee as soon as possible - certainly before the summer recess. When we provide the papers on the new offence and third party appeals, we also will provide the Committee with copies of the Queen's University research so that you have all the information to hand when considering the issues. When we have done so, we will be at the Committee's disposal to discuss the issues. The Minister has also made it clear that he wants to work with the Committee on these matters.

12.

Mr Small: I have nothing particular to add on the wider issues that Mr Maye has covered, except to explain the anticipated timetable for the Bill. Mr Maye has indicated that the Bill may be introduced on 10 June, and the Second Stage would then be anticipated for 24 June, but that has to be confirmed. It would then pass to Committee Stage and, depending on the duration of that stage, we would then hope to reach Consideration Stage around October. It is difficult to judge how long that process will take, but we would aim to reach Final Stage of the Bill by December or early January 2003, in time to allow Royal Assent to be secured before Assembly is dissolved in advance of next spring's elections.

13.

The Chairperson: This is heavy stuff, and we must ensure that we are getting this right. With the greatest respect, there seems to be great haste, which can sometimes lead to bad examination. You may have your timetable set, but we must get this right because we have a very important duty to fulfil.

14.

Mr M Murphy: I have great difficulty with the £20,000 fine, considering that an entire block of terraced houses was demolished in Portadown. Under the present legislation, how many enforcement actions have been taken, and what way were they dealt with through the courts?

15.

Mr Maye: I will write to you with the precise figures. With regard to enforcement action, Planning Service deals with about 1,500 cases a year. Most are resolved through negotiation, and the developer puts right what has been done beyond the terms of his planning permission, or does things that he should not have done. Around 50 formal cases are taken each year, and a proportion of those end up in court. The aim of taking enforcement action is to put right what has been done, and, in the majority of cases, we can achieve that without taking people to court. In some cases, however, it is necessary to do so. I will write to the Committee with the precise figures.

16.

Mr M Murphy: If a developer demolishes a row of terraced houses, he is fined £4,000 or £5,000, but there is no way that the houses can be replaced.

17.

Mr Maye: It is absolutely clear that the fine levels being imposed and the maximum fine available to the Magistrate's Court do not match the gravity of the offence or the value of the property that has been destroyed. One of our key aims is to give magistrates more leeway to issue higher fines.

18.

We want to take cases to the Crown Court, as some cases must be treated very seriously. The Planning Service was reluctant to take cases to the Crown Court in the past, but the Department is determined to address that. It is important that the Department sends out the strongest possible message to developers and others - if they mess with the system they will get their fingers burnt.

19.

Mr Murphy: Your recommended figure is over £20,000, but this has not been stated clearly.

20.

Mr Maye: The Department does not yet feel that it is a position to state it clearly, which is why we want to engage further with the Committee to identify what level of fine we should aim for. You have made it clear that £20,000 is not high enough, so what level of fine should we aim for - £30,000, £40,000 or higher? We must bear in mind that the Department intends to take cases to the Crown Court, where there will be no limit to the fine. The Crown Court will be able to set a fine at whatever level it sees fit. In doing that, it will have to consider the profit that has accrued to the developer by his committing the offence. That is important, because in some cases - the case that you cited is a good example - developers can make several hundred thousand pounds or, in some cases, several million, and a fine of £20, 000, £30,000, or £40,000 will not make a dent in their profit.

21.

Mr Small: As well as higher levels of fines, the Bill also proposes the introduction of custodial sentences in cases where listed buildings are demolished. It is hoped that the risk of a custodial sentence will carry more weight, and be a greater deterrent than the higher fines.

22.

Mr Maye: Another issue is the attitude of magistrates and the judiciary to the cases, and recent evidence suggests that the attitude is beginning to change. In the dark days of the troubles, magistrates believed that this type of offence was not that important in the grand scheme of things, but that is changing. In a recent case in Rostrevor, a magistrate imposed the maximum fine of £5,000. He said that he would have imposed a higher fine had he had the authority in statute to do so. Magistrates are taking cases more seriously than they would have done before.

23.

The Chairperson: For clarification, the letter that we received from the Minister contained no evidence that he had asked the Secretary of State to consider fines higher than £20,000. Can you show the Committee the relevant paragraph? The letter states the opposite as it says "up to". There is no mention of fines above £20,000.

24.

Mr Maye: The letter had two purposes. One was to secure clearance for the provisions that are already in the Bill, which was necessary for the Department to bring the Bill before the Assembly. The Minister decided to take it in two bite-sized chunks. His first aim was to get clearance for the current provisions in the Bill, which he has agreed. Secondly, in the final paragraph, he wanted to raise the broader issues that the Committee is concerned about, and on which he has views, such as fine levels, the new offence, and third-party appeals.

25.

He decided to divide it tactically into two stages. First, he would discuss the principles with the Secretary of State and bring to his notice the Committee's concerns and the views of other Members of the Assembly, which had been raised with him in general correspondence. He also wanted to sound out the Secretary of State on the principle of going beyond parity with England and Wales - a point that we have discussed with the Committee previously. Having done that, and judged whether the Secretary of State was warm to the idea, the Minister will now consider concrete proposals. Those proposals are not, and cannot be, on the table at present, because the Department has not decided what they should be. The Department and the Committee must agree the level of fines we are aiming for, and why, so that we can put the case to the Secretary for State.

26.

If a new criminal offence is created, there should be agreement on what that offence should be, what it should cover, what the fines and penalties should be, and in what circumstances it should be applied. That is essentially the Minister's tactic in approaching the Secretary of State about these issues, and I re-emphasise that he wants to work with the Committee on these issues. When he goes to the Secretary of State he wants to put a good case - one that commands the Committee's agreement and support.

27.

The Chairperson: Is the Minister making the case on your acknowledgement that the situation in Northern Ireland is radically different?

28.

Mr Maye: He has made the case that there is strong feeling on these issues across Northern Ireland that will not go away. The public, the Assembly and the Committee for the Environment feel strongly that we should be doing these things.

29.

The Chairperson: You want the Committee to set a figure. From the example that you got this morning, you should know that the Committee could not set a figure for that. Surely a court must be - not may be - made to take regard of the financial benefit. It would be useless for the Committee to set a figure of £35,000 if someone earned £1 million. Rather than tying a court to a maximum, the judgement must consider the financial benefit.

30.

Mr Maye: We are proposing that for the Crown Court.

31.

The Chairperson: I am not talking about the Crown Court; I am talking about the Magistrates' Court. Why can it not be included in the legislation?

32.

Mr Maye: The cases that go to the Crown Court will be included in the legislation. We must take those cases in which the developer stands to make a profit of £1 million out of the Magistrates' Court and into the Crown Court, so that the Crown Court can look at it seriously and set the appropriate fine.

33.

In the UK justice system, magistrates are given a fine level to work with, and, until now Magistrates' Courts have traditionally had limited powers. That reflects the nature of the cases that should be brought before the Magistrates' Court. If they are sufficiently serious to attract a very heavy fine - [Interruption].

34.

TheChairperson: The number of cases that the Department has taken to any court does not give us confidence that any other cases will reach the Crown Court. Frankly, if a case gets to the Magistrates' Court, the Committee would like to know that the person will not get a mere rap over the knuckles, but something that they will fear. It is hard enough getting the Department to bring a case to the Magistrates' Court, but it is another matter to promise the Committee that all will be well when it gets to the Crown Court. I am not confident about that.

35.

Mr Armstrong: It should be calculated on a percentage basis of the value of the property.

36.

Mr Murphy: In Rostrevor, the contractor was fined £5,000. The same contractor paid £80,000 to the resident to knock down her garage. This issue must be tackled seriously.

37.

Mr Doherty: You mentioned three policy papers setting out your position on enforcement liabilities and third party appeals. When do you expect those to be available, and to whom will you make them available?

38.

Mr Maye: We will give them to the Committee. We are committed to doing that before the summer recess, but I want to have those papers with the Committee within the next couple of weeks, to give you an opportunity to consider them before the summer recess.

39.

Mr Doherty: I asked because the Committee must also examine the consultation on 'Modernising Planning Processes', and the deadline for that is 14 June. Could you meet that date?

40.

Mr Maye: I cannot commit to that, because we are still waiting for the final report from Queen's University. We want to see their final report so that we can build any of that evidence into the papers that come to the Committee. We will present you with the best possible case.

41.

The Chairperson: Being honest, you are not going to introduce it in this Bill.

42.

Mr Maye: I would not necessarily rule that out.

43.

The Chairperson: This Committee forcefully holds this view. It may be just starting to percolate into the Department, but make no mistake; it is not going to go away. The Department can resist it, but the will of the elected representatives will have to be tested and proved if the Department is not willing to deal with that head-on.

44.

Mr Maye: The Minister is under no illusion that that is the case. At present he is not persuaded of the case for the introduction of third party appeals, but he wants to enter into more detailed discussion on the matter with the Committee. With regard to higher fine levels in the Magistrate's Court, and a new criminal offence, I would not rule those out. We can bring forward amendments, if necessary, during the passage of the Bill, as can the Committee, so I would not rule those out at all.

45.

Mr Ford: I do not want to go over the issue of the fines again. However, I note in paragraph 12 of the explanatory memorandum that there are likely to be some marginal financial implications for the Department with the introduction of the main provisions. What is the point in having enforcement powers, or talking about taking matters to the Crown Court if you are only talking about marginal financial implications? It sounds to me like the Department is not going to take the matter seriously, even with these powers. Surely the point of having these powers is to make use of them. We have had enough instances highlighted in every part of Northern Ireland of the need for much more action on enforcement powers. You have just been talking about the issue of the Crown Court, so is that not a misleading statement?

46.

Mr Maye: We are looking at the whole structure of the Planning Service - how it delivers its work and its Programme for Government commitments. We will not necessarily need much more resources to do a better job on enforcement. We are looking at the balance of how our work is done, and whether we have sufficient resources within the Planning Service already devoted to enforcement work. The Minister is keenly aware that up until now we have not devoted a substantial proportion of our resources to enforcement. This legislation should simplify the whole process, so that with current resources we should be able to do a great deal more because the process will be simpler and more streamlined. It will be much easier to progress, and get to court if we need to get to court. There is an issue about the balance of resources in the existing Planning Service that we devote to enforcement work, and we are working quite actively on that.

47.

In addition, we are currently engaged in a review of planning fees, and propose to bring forward a consultation paper later in the year. We will look at whether enforcement work, or at least a proportion of that work, should or can be funded from the fees paid by applicants. At the moment it is not. The fees cover development control work, but do not cover enforcement, the development of planning policy, or many other things that the Planning Service does. It may well be that we can generate more income through planning fees to devote to enforcement. There would be no greater drain on the public purse if more of the burden were placed on applicants and others. We are looking at a range of issues here.

48.

Mr Ford: In taking that approach, you place more of a burden on those who are going through the planning process properly to deal with those who are making a mockery of the law. That seems to me to be the reverse of what you should be doing.

49.

Mr Maye: We have not reached any decision on the matter, which is why we want to engage in public consultation. However, we are looking at whether we should go along that line, or, indeed, whether we should introduce punitive fees for those who go ahead and commence development without permission. They should pay a higher fee than someone who follows the process

50.

Mr Ford: That is the exact reverse of what you outlined earlier.

51.

Mr Maye: No. It is one of the options - and they are nothing more than that. Some may be mutually contradictory, but they must all be expounded, discussed and debated with the Committee and the public. We are examining the issue, and you will see what we have in mind when we bring forward the consultation paper. We look forward to the debate.

52.

Mr Ford: Should the concept of punitive fees not be included in the Bill?

53.

Mr Maye: If the policy had been developed, we would have done that. The issue is only now beginning to come to the fore, and it is being explored in Northern Ireland and in England. In England it is part of their review of planning fees. The idea had not been generated before, and would not have arrived in time to build into this Bill, but I should not rule out its being in the next Bill.

54.

Mr Ford: What provisions are there currently for the Department to obtain costs for taking enforcement action through the courts?

55.

Mr Maye: We can ask for costs, and it will be up to the magistrate or judge to decide what costs are awarded against the offender. In some cases they have been awarded, and in others they have not. The judgement is one for the court to make, but we can and do apply for costs.

56.

Mr Ford: It would be interesting to see the current statistics on how successful that has been.

57.

Mr Maye: We do not do very well, since courts and magistrates do not see the Government as needing costs. We press for them in every case.

58.

Mr Ford: Your being so unsuccessful because of magistrates' failure to impose costs proves the case for punitive fees as an additional statutory measure.

59.

Mr Maye: We need many tools in our armoury to deal with enforcement issues and unauthorised development. That is one of the options that I want to explore with the Committee and the public. The issue is being explored across the UK, and in some other jurisdictions. We should be ready to present proposals for discussion on that and a range of other issues after the summer.

60.

Mr Poots: Mr Ford has taken us well down the road that I wished to take. Where does the money from court fines go?

61.

Mr Maye: It goes back to the UK Government - not the Department of the Environment.

62.

Mr Poots: It goes back to the Treasury?

63.

Mr Maye: Yes. It goes back to the consolidated fund, which is managed by Treasury. We cannot currently get our hands on that money.

64.

Mr Poots: I agree with Mr Ford that it would be wholly inappropriate to increase fees for those making legitimate planning applications to pay for those breaking the law. We should seek some self-sustaining mechanism, whereby the fines imposed on those breaking the law flow back into your own coffers to run the enforcement section properly.

65.

Mr Maye: We shall explore that.

66.

Mr Poots: I look forward to seeing you go down that route.

67.

Mr McClarty: I agree with the provision of third-party appeals in principle, but what do you perceive as the effect of such a procedure on the planning application process? Would it slow it down, and could that be resolved by an increase in fees to enable more personnel to be employed for planning applications?

68.

Mr Maye: We could speed up the initial process to some degree, and that is part of the aim of 'Modernising Planning Processes'. We also intend to recruit new staff so that we can process more applications, more quickly than at present.

69.

The Chairperson: Cut through some of the bureaucracy.

70.

Mr Maye: You are quite right. There is no doubt that, with the best will in the world, third-party appeals will introduce substantial delays for those cases that are appealed, though not necessarily for the others. The evidence so far from our research in the Republic is that it introduces an average delay of around 11·4 months on top of the time it takes to reach the initial decision. The Committee and the Assembly will need to consider this issue, since it could have a substantial impact, not only on the planning system, but also on the wider economy. By their very nature, applications likely to be appealed by third parties are those that are contentious, and attract objections at the outset. We quite often find that applications that invite objections, and which are considered contentious, are those that will help develop the economy if delivered. However, there is a balance to be struck; natural justice speaks for third-party appeals, which allow everyone a "fair crack of the whip".

71.

On the other hand, we must look quite seriously, not only at the impact of such factors as delayed applications and additional costs on the planning system, but also at the potential impact on the Northern Ireland economy as a whole. Other jurisdictions have designed their whole system around third-party appeals. They have examined the initial process to make it as streamlined as possible. The initial decision is made very quickly, after which the applicant - or the third party - has the right of appeal. In those jurisdictions, the majority of applications are determined very quickly. Those that go to the appeals system take longer, but a balance is struck between the two.

72.

In Northern Ireland we are starting from a slightly different position, since we already have a system in place. That system will be examined as part of the review of public administration, and I have no doubt that the review team will consider this issue, which will generate a great deal of debate. The issue has regularly arisen during my visits to councils in recent weeks. Where should power for development control decisions lie? You can imagine that there are various views on the issue, but it is likely to be considered in the review of public administration. There is an opportunity to examine the fundamentals of the whole system and get things right, moving away from the system introduced in 1973, which moved planning from locally accountable representatives on councils to central government. The issue must be seriously examined as part of the review.

73.

The Chairperson: Of course, if you were the offended person, you would like to have natural justice. By all means speed everyone else's cases, but be sure that you get justice for yourself. The issue is justice and human rights for all.

74.

Mr Armstrong: Everything in this world has a lifespan. We expect historical buildings to last - to be renovated and remain for ever. Trees too have a lifespan, and some have orders placed on them so that they cannot be removed. However, a tree might only have a two or three year lifespan left, so what do you propose to fine someone if you can determine the life left in a tree? How will you manage that?

75.

Mr Maye: In taking a case to court, we would have to convince the court that the tree was not dead, dying or dangerous, which really depends on the assessment made by a professional arboriculturalist, on whose advice we would rely. If the tree has or is reaching the end of its natural lifespan, that will have an impact on whether we take action against the person who might have cut it down - provided they can demonstrate that. That is part of the equation that the court, and the Department - as a prosecuting authority - would consider in making a decision. That happens at present.

76.

The Department's suggestion in the Bill is that it is too easy for a person who cuts down a tree to argue that the tree was dead, dying or dangerous, and we want to tighten that up. However, there will be cases where the tree is just about to fall over or has reached the end of its life, and it is perfectly fine to cut it down. The Department wants the landowner to seek permission before he or she cuts it down, because the Department can then consider the evidence presented by the professional arboriculturalist, and make a judgement about whether or not the tree should be cut down.

77.

Tree preservation orders are not necessarily about eternal preservation. They are about the management of trees and woodland. Management takes account of the fact that woodland, by its very nature, changes with time. Trees grow, mature, eventually die and need to be replaced. The orders are the Department's tools with which to manage that process. There will be occasions when a tree is close to, or has reached the end of its natural life, and may become a danger. In that case, if the landowner seeks permission from the Department to cut down the tree, the Department may grant that permission. However, it may also insist on replanting a tree.

78.

Mr Armstrong: In other words, you are saying that it is not the tree that matters, but the area where the tree should be.

79.

Mr Maye: Absolutely. The character and overall "feel" of the area, and the amenity that it provides to the public are important and must be protected. Trees are a limited natural resource. Northern Ireland does not have many trees, so we should protect the ones we have.

80.

Mr Armstrong: Regardless of a tree's condition, is it possible that if it comes down another tree may go up in its place?

81.

Mr Small: That is one of the provisions in the Bill. It is designed for that kind of situation, so that the Department can insist on replacement.

82.

Mr Armstrong: On the point I raised earlier, I believe that the fine should not be £20,000, but a percentage of the value.

83.

Mr Maye: The Department will consider that suggestion.

84.

Mr A Doherty: I hesitate to revisit the third party appeals issue. However, if the planning policies and procedures were clearer and stronger, and less prone to misinterpretation or to a variety of interpretations, would there be less need for third party appeals? Having a measure for third party appeals, but also making them less likely to happen through having clearer policies might resolve the problem.

85.

Mr Maye: I think so, because if planning policy was clearer, and if it commanded widespread support - not only among the political community but also the wider community - and if area plans were correct and up to date, there would be much less opportunity for people to disagree with a decision. The Department hopes that, in those circumstances, it would get the decision right first time, and that it would be defensible. I agree that that would make the case against a decision slightly weaker, though not altogether remove it. However, it would be a step in the right direction.

86.

The Chairperson: You mentioned higher fines, and you talked about drawing up a case. Is it possible for the Committee to obtain a draft copy? To date, the Committee has no knowledge of the case being drawn up, and there was no indication of it in the Minister's letter.

87.

Mr Maye: The Department's next stage is to bring the case to the Committee for discussion.

88.

The Chairperson: Is it possible for the Committee to obtain a draft soon, so that there can be meaningful discussion? We want to feed in our proposals now rather than at the end of the process.

89.

Mr Maye: Much work needs to be done on higher fine levels, particularly given the points raised today. The Department hopes to present it to the Committee soon. However, in its current state it would not be of much help to the Committee.

90.

The Chairperson: The Committee would like to see the draft as early as possible. We will decide whether it is helpful or not.

91.

Mr Maye: It is hoped that you will have all the papers in the next few weeks.

92.

The Chairperson: I would also like to receive the Queen's University research as soon as possible.

93.

I want to mention one other thing before we finish. Even though this is an important issue, I am concerned that you have only sent the Committee responses that date from April 1999. There are no up-to-date papers. The Committee has the proposed amendments to planning legislation, and an analysis of responses to the discussion document. There are a lot of them, but what do they mean? In some instances there is a "yes" or "no" with a general comment, but the Committee has no details of what the concerns were or if they were met. It is doubtful whether or not the responses from 1999 are meaningful because they may be out of date. To make a judgement, the Committee requires more detailed comments and documentation with more than a "yes" or a "no". Relevant analysis is required and the Committee must know what concerns were expressed and how they were addressed.

94.

Mr Maye: The Department will work with your officials to provide that. Would it be helpful in the meantime to give you copies of the responses? Some respondents asked for their responses not to be released, but I can give you details on other responses, and then we may work on the broader analysis.

95.

The Chairperson: In these days of open government and freedom of information, I am not sure if such requests for anonymity are allowed. What is good enough for your eyes is good enough for ours.

96.

Mr Maye: As the responses were made in 1999, the people who made responses were entitled to say that they did not want them to be released. The Department must respect that until the Freedom of Information Act becomes fully effective in January 2005. The Department can, if you wish, write to the respondents informing them of the Committee's request for sight of their response.

97.

The Chairperson: Yes, that would be helpful. The Committee wishes to be sensitive, but we do want the papers.

98.

Thank you for your contribution to this morning's Committee session.

Thursday 27 June 2002

Rev Dr William McCrea (Chairperson)

Mr Armstrong

Mr Ford

Mr Molloy

Mr M Murphy

Mr Watson

Mr H McKay ) Department of

Mr D Small ) the Environment

99.

The Chairperson: Gentlemen, it is a pleasure to have Mr McKay and Mr Small from the Department of the Environment with us. Perhaps you will make your presentation on the Planning (Amendment) Bill, Mr McKay. I apologise for the delay - we were dealing with another important matter.

100.

Mr McKay: Mr Chairman, thank you for your welcome. I apologise for Cynthia Smyth and Ian Maye, who cannot be with us today.

101.

The Planning (Amendment) Bill completed its Second Stage on 24 June and is now at the Committee Stage. Next week, officials will be meeting again with the Committee to discuss the details. Our presentation deals with three important aspects of the Bill that the Committee has raised: third-party appeals; dealing with unauthorised development; and the levels of fines. The Committee has received detailed policy papers from the Minister on each subject, which analyse the issues involved and set out the Department's conclusions and proposals. The Committee has also received copies of research papers commissioned by the Department from Queen's on third-party appeals and unauthorised development. These are weighty, and the Department has provided a short summary of the key research findings to assist members. Mr Small will take the Committee through the policy papers and explain the Department's analysis and conclusions. After that, we will be happy to take questions that members may have.

102.

The Chairperson: Before our meeting this morning, Mr McKay, the importance of having a Bill with teeth was highlighted when a delegation from Holywood Conservation Group brought to the Committee's attention yesterday's demolition of Victorian buildings. The group is very angry that present legislation does not allow the Department to take effective action to stop inappropriate demolition and does not allow it to make representations. The demolition was carried out three weeks before the appeals commission could have a hearing. The message must go out that this Committee and the Department are treating that matter seriously and that all efforts will be made to ensure that developers do not go ahead with demolition or gain financially from them.

103.

I have a great deal of sympathy for a point that was made to us this morning: to prevent developers rushing ahead of legislation, the Department should demand that planning applications be sympathetic to what is already on a site, and it should not facilitate financial gain by developers. I am not making a particular judgement: we cannot do that in this case, because the buildings have been demolished. However, the Department had representations made to it on this and must bear that in mind when development commences on that site. This shows the urgency of the matter, and I hope that the Department will treat the Bill in the same way.

104.

Mr McKay: We appreciate those remarks.

105.

Mr Small: I am conscious of the limited time for the discussion, which has to deal with three heavy papers that the Minister presented to the Committee on 24 June. In his speech on the Second Stage of the Planning (Amendment) Bill, the Minister set out his thoughts and proposals on the issues of third-party appeals, levels of fines and unauthorised development. We shall discuss the papers that the Minister presented in the context of the commitments and proposals that he made. The papers are detailed; I shall go through them as quickly as I can, so that there is sufficient time for questions.

106.

The Chairperson: Even if we cannot ask detailed questions today, it is important to know the Department's position.

107.

Mr Small: The Minister's first paper, annex A, was on third-party appeals. It began with some background information on previous considerations of the merits of third-party appeals and referred to the considerations of the 1983 Assembly and the resolution that supported the introduction of third-party appeals. It also referred to the House of Commons Northern Ireland Affairs Committee's examination in 1996 and the report that recommended the introduction of third-party appeals. On both occasions, the Government of the day decided, because of increased delay, uncertainty in the planning process and resource implications, not to introduce third-party appeals.

108.

In 1999, the Department established a working group to re-examine the matter and decide whether there was a case for third-party appeals. That involved discussions with the appeal bodies in Northern Ireland and the South, the planning wing of the Department of the Environment and Local Government in Dublin and professional colleagues in the North. The group concluded strongly, because of delay and uncertainty, that third-party appeals should not be introduced.

109.

The Department then commissioned further research from Queen's University. It was asked to examine in more detail how third-party appeals operate in the Republic of Ireland; how successful the system is there; and what the downsides are. Its report contained several conclusions and was presented to the Committee some time ago. It said that third-party appeals are well accepted in the South and part of the system there. However, planning decisions take about 11 months longer because of them, and that is a disadvantage.

110.

Another comment in the report, which we think fundamental, is the suggestion to retune the system here rather than just add third-party appeals, the point being that our planning system is entirely different from that in the South. The South has a plan-led system: applications received are determined against the plan. If they accord with it, they are approved; if not, they are rejected. Any safeguards lost at the early stage through lack of consultation or participation are captured through the appeal system. The report concludes that the system in the South almost demands third-party appeals. It also says that because we have a more consultative and participative process at the early stage, we need to think carefully about attaching another process at the end.

111.

We have discussed that with the Committee and are conscious of members' views on how effective the early consultation stage is. We are looking at all these matters in the context of modernising planning. Research shows that we need to be careful about how we introduce third-party appeals. If we simply tag them on, we will damage the process. Rather than do that, we need to review the planning process and retune it to accommodate third-party appeals.

112.

We asked for further research from Queen's University this year and received a report earlier this month. It focused more on how third-party appeal systems operate in other European jurisdictions, and there was a wide range of findings. There are third-party appeal systems in some form in almost all European jurisdictions - however, the way in which they operate varies widely. In Denmark only environmental decisions are subject to third-party appeals and only environmental bodies have the right to a third-party appeal. On the other hand, the Republic's system permits almost anyone to make such an appeal. The report concluded that individual third-party appeals provisions are based around the policy objectives of such a facility. In Denmark, the clear objective is environmental protection, so the focus is on environmental decisions and watchdog bodies. The Southern system seems to be based on natural justice and equity. So, research suggests that we must be clear about why we want to introduce third-party appeals before thinking about how a scheme might operate, and there is a wide range of models and options.

113.

That is the background, and those are, very briefly, the kinds of considerations which have been made on the subject in past years. The Minister's paper detailed the benefits of third-party appeals and was informed by the Northern Ireland Affairs Committee's report, by Queen's University's research, by further work we did in the Department and by views given to it on the subject. It was thought that the proposal would be warmly welcomed by the Assembly, other elected representatives and the general public. Essentially, the benefit is that it provides objectors with an alternative means of challenging planning decisions, adds to what is currently available and remedies the perceived inequity in the system whereby applicants can appeal but those who oppose a development cannot. The research from Queen's also suggested possible wider benefits for the environment, since the third-party appeal process itself might take better account of some of the environmental downsides, resulting in more balanced development.

114.

Giving factual information, the paper also set out the potential disadvantage of third-party appeals: the possible three- or fourfold increase in appeals which such a process would encourage. The estimate suggests 600 to 700 additional appeals per year, which would have resource implications. The Department anticipates possible difficulties recruiting staff to run the system, since we are not at all convinced of the market supply of qualified planners.

115.

Queen's University's research suggested a delay in the system of 11 months for an average planning application going through the process of third-party appeal. There is also the fact that any planning approval would be subject to at least some delay, since a period is set aside for third parties to come forward. Developers and house-owners might get planning permission but be unable to proceed until the period during which third parties could bring forward an appeal had expired. That could vary, and some of the work we have examined suggests a period of six to eight weeks, so there could be a two-month period during which house-owners who had planning permission to carry out work on their propertis could do nothing. If the decision was appealed, that period could extend to 10 months. The French system allows three months, and research shows that a third-party appeal can take two or three years extra before a final decision is reached.

116.

Those are the kinds of problems that would cause delay and uncertainty in the system for house-owners, applicants, developers and those wishing to invest in Northern Ireland. The Minister's paper refers to other issues such as additional costs to third parties and applicants - the cost to applicants of having a land bank while they wait an extra year for a decision, the business costs entailed and the possible disincentive for developers or investors. It examines the possibility of third parties abusing the system to delay development. There is evidence in the South that serial appellants challenge everything from a particular developer, perhaps someone in Monaghan, appealing regularly against developments in Cork. Do we want that here?

117.

Finally, there are the implications for current efforts to improve the planning process. Through modernising planning, we are working hard to improve efficiency in decision making. That is one of the Programme for Government objectives, and we predict tensions if third-party appeals are introduced which will create delay. The paper examines the existing procedures to try to accommodate third-party appeals and our recent efforts to improve those processes through more open filing. Objectors can look at the file and see how their objection was dealt with. They can also object through neighbour notification, public advertisement and the other ways that you are aware of.

118.

The paper also looks at the position in England, Wales and Scotland, and those systems are completely opposed to third-party appeals. The recent Green Paper in England stated that the Government were not convinced of the arguments for third-party appeals and believed that the way to deal with the interests of third parties was to make the system more open. In the South the Government had concerns about serial appellants and delays. Over the past few months, they have sought to restrict their system and have concluded that the very open nature of their third-party appeal system was, and is, causing problems. There are allegations of builders being held to ransom by third parties who indicated, at a late stage in the process, that they were going to appeal, but that if money was paid to them, they would not. There is no hard evidence of that, but it is a real concern. It has prompted the Government in the South to introduce further restrictions.

119.

The paper refers to the latest research from Queen's and the various models that must be considered before putting a system of third-party appeals in place. It asks why third-party appeals are desirable; what is the objective; and what type of decision will be subject to them. Will they apply only to planning application decisions; or will they extend to demolition consents, tree preservation order consents, reserved matters applications or Article 31 major applications? Are they only for major applications or for circumstances that have a direct impact on an individual? Are they only for environmental applications, as in Denmark, or should they be universal? Should they be completely open, as in the South, or, given the concerns there, should they be restricted, and how do you do that? Do you restrict them to neighbours with an adjoining land -

120.

The Chairperson: This is a rehearsal of everything the Department has already said, yet the Department has not taken on board the fact that the Committee wants third-party appeals. The Assembly has said that it wants third-party appeals. When will the Department act on the will of the Assembly rather than object to it? When will it bring the operation plans for third-party appeals to the Committee?

121.

Mr Small: That is what we are trying to do. We are trying to air the issues that must be considered.

122.

The Chairperson: With respect, that has been done. We should be beyond this - far beyond this. The House of Commons suggested third-party appeals in 1996, and nothing has been done. Research began in 1999 - three years ago - and you are still telling us the problems. We should be being told how the Department is going to carry out the will of elected representatives in the Committee and the Assembly, and the purpose of the Assembly is to carry out the will of the people.

123.

This Committee feels that third-party appeals are essential. You talked about speeding up the planning process. In reality you are talking about speeding up planning decisions that many people feel are perverse but have no power to do anything about. With third-party appeals, people would be able to overturn such decisions. The evidence in the South and elsewhere shows that third-party appeals are generally well accepted and have a high rate of success.

124.

Mr Small: They have an exceptionally high rate of success.

125.

The Chairperson: If that is so, we are not talking about notional objections but about successful appeals. If there was no provision for third-party appeals, those decisions would have gone through.

126.

Mr Small: I accept your point.

127.

The Chairperson: Why would there be a high success rate if the original decisions were not wrong? You are saying that we should be speeding up the process of making wrong decisions.

128.

Mr Small: I know the Committee will not accept this, but the system in the North is different from that in the South. There is very little pre-decision consultation in the South.

129.

The Chairperson: What do you say to people who feel strongly that certain planning decisions are perverse yet they have no power to change them? All they get is consultation. What would happen if a council, with all shades of opinion, was united in its rejection of a planning decision that the Department approved? The community has no power in this: its representatives and the Assembly have no power in this, and that is not acceptable. You say that the system here is better than the one in the South, but that is not acceptable. I know that officials do not accept this and not just for the sake of blocking. However, they have to change, and the Department has to change, because it must implement the will of elected representatives speaking on behalf of the people.

130.

Mr Small: Your comments are well made, and the Minister recognises the concerns that were expressed during the debate on Monday. He is now fully committed to public consultation on this.

131.

The Chairperson: This subject has been running since 1996, and we are still in consultation.

132.

Mr Small: The situation in 1996 was that the then Government were not persuaded.

133.

The Chairperson: Let us forget 1996 then. Let us turn to 1999 and what has happened since then. We are supposed to be in a different dispensation, but we are hearing the same old words now that we heard then.

134.

Mr Small: No.

135.

The Chairperson: Now we are being told that we are going into a review of the situation.

136.

Mr Small: It is not a review.

137.

The Chairperson: What has been happening since 1999?

138.

Mr Small: It will be a full public consultation, and it will take views on the matters that I am discussing with the Committee. There are many ways in which we can proceed. The Minister's concern is to ensure that third-party appeals, if we introduce them, are introduced in a way that does not damage the planning process. We must take account of how the current system operates and how best to accommodate third-party appeals. The Minister made a commitment on Monday -

139.

The Chairperson: Neither the Minister nor the Department is convinced that third-party appeals are needed.

140.

Mr McKay: The Department has not made a decision on this. A long time may have been taken, but, as you have said, over 20,000 planning applications a year are processed, the vast majority of which go through without any difficulty. However, there is a strong view - and you are expressing it on behalf of the Committee - that there are people who feel that they do not have an adequate say. Those people are not applicants, but they are opposed to an application and its implications.

141.

It would be helpful to the Minister if the Committee could say who it considers should be third parties in such circumstances and the types of appeal that are envisaged. We understand what the Committee is saying about the principle of third-party appeals, but, as Mr Small has said, there are many variations across the different Administrations in Europe, so we would appreciate the Committee's views on who the third parties should be. I do not know if the Committee has thought about that.

142.

The Chairperson: No. Our remit is to scrutinise what the Department presents to us, not to formulate policy.

143.

Mr McKay: It is clearly the Minister's job to formulate policy, and -

144.

The Chairperson: The Minister must realise that this issue is not going away, and it is about time that we had some detailed proposals from him or his officials on how this is going to be put into effect. When information comes to the Committee we consult about it and consider it in detail, but it must be presented to us first. You say that you are going to consult, but what are you going to consult on?

145.

Mr McKay: The Minister would say that you are expressing the views of those who have spoken to you, but that does not mean that everyone in the community wants third-party appeals. We do not know the answer to that because there has been no consultation yet. That is the difficulty that the Minister faces.

146.

Mr Armstrong: Who does the Minister suggest these third parties should be then?

147.

Mr Small: The purpose of consultation is to get a clear understanding of where the demand for third-party appeals is coming from. Is the right of appeal for neighbours who have an adjoining boundary and are directly affected? Is it for wider concerned groups such as the Royal Society for the Protection of Birds and environmental groups? Consultation would help inform decisions on how wide a right of appeal should be and the types of decisions it should apply to. We would like to have the public's views on how the system should be shaped. That would enable us to develop the detailed proposals that the Chairperson is talking about and discuss them with the Committee.

148.

Mr Armstrong: Why not do that now? Why take such a long route? It is taking a long time to get a decision.

149.

Mr Small: We both acknowledge that it has taken a long time to reach the present point where the Minister and the Department have determined that more needs to be done. We realise that we need to make progress, and the Minister has given a commitment to go to public consultation. We have progressed beyond the 1996 position, when the view was simply that third-party appeals would be bad and we would not be having them. Matters have moved on, but it has taken time.

150.

The Chairperson: We can respond to that by quoting from the notes that we received this morning:

"At this time, the Minister is not persuaded of the merit of introducing third party rights to appeal".

151.

That is the reason; that is the heart of the matter. Where did he and the last Minister get that from? Where did we get it from at every meeting on this? We got it from officials - from the permanent secretary down. The Minister is getting this from his officials. The Department has not faced the reality that the elected representatives on this Committee want third-party appeals.

152.

As officials, you are responsible for deciding how to put into effect the wish of the people, expressed through their elected representatives. That should have been done a long time ago. The matter was raised previously, in 1996, and in 1999 reviews were carried out. Now in 2002, we are having consultation, and I do not know when it is to end. It would be helpful to be told that date. Other consultation arrangements end after three months. Perhaps we have made progress from the elastic situation of no consultation from 1999 to 2002.

153.

Mr McKay: There is no perfect model on which to base third-party appeals. We have our own planning system, and if there were a model to work to, that would assist. There are many variations. If the Committee has views on the best way forward that would help. We acknowledge that the procedure has taken a long time and that, by nature, planning is a difficult subject.

154.

Mr Armstrong: Are you suggesting that the Committee should say how to resolve this?

155.

Mr Small: If the Committee has a firm view that third-party appeals should be available to a particular group, such as a university, we will tell the Minister of that view. However, the Minister wants full consultation on this, so that all the issues can be debated and we can see where the demand for third-party appeals is coming from; what type of appeals are involved; and what decisions they should apply to. Until we have that information, it is difficult to devise a scheme and envisage how it will operate, and how we do that will determine the impact of delay on the system.

156.

The Chairperson: The Committee will fulfil its role when that consultation process concludes.

157.

Mr Ford: I have some sympathy for the officials - their Department is the smallest in the UK.

158.

The Chairperson: Are you getting soft, David?

159.

Mr Ford: It bothers me that the differences in legislation here have not been taken into account. The cited examples relate to other jurisdictions where, unlike here, councils are the planning authorities.

160.

My Colleague, Mr McCarthy, said in the House that "We must achieve a balance" and not

"allow a neighbour with a grudge. to delay the granting of planning permission". [Official Report, Vol 17, p82]

161.

You talk about someone living in Monaghan and writing in green ink to complain about developments in County Cork. My difficulty is that you are not considering that a way of dealing with legitimate concerns is by compromise. I do not wish to give everyone in Fermanagh the opportunity to complain about what happens in South Antrim. No one here wants that, but your examples are of that sort.

162.

We need to discuss the practical realities of giving councils powers to institute third-party appeals or have recognised organisations with a specific remit. We need to look at the legitimate concerns of many people who live near a development and oppose it, but essential economic development must not be held up by petty grudges. We must ensure that non-governmental organisations (NGOs) with genuine concerns about the environment or councils with concerns about the pattern of development in a district or even a serious group of neighbours can all appeal against the granting or refusal of an appeal will potentially affect them adversely. Where that might apply is what you must discuss with the Committee rather than say that the Minister is not persuaded - that is a dialogue of the deaf, and clearly you do not want it - nor do we.

163.

Mr McKay: We understand: if the amendment is to be introduced, it must be correct. You have your views on what the relevant elements should be. This comes back to the range that we are working within and our desire is to get it right first time around.

164.

Mr Ford: The figure of 600 to 700 appeals a year is from previous research by Queen's, which I do not have with me. Is that figure an extrapolation of the figures in the Republic? Is that the maximum number of appeals in the loosest possible third-party appeal system? If planning permission were given by a substantial majority vote of a council, there might be only 30 or 40 appeals a year.

165.

Mr McKay: It is hard to know how many there would be, but with qualifications, the figure can be reduced.

166.

Mr Ford: So the figure of 600 to700 represents the worst possible scenario. You are being very agreeable, but that is another example of a previous, unhelpful response from the Department that has been changed by discussion this morning.

167.

Mr Small: The figure was based on the research that was conducted. Many pointed out that third-party appeals were available in the South and asked why they could not be available in the North. The Department was simply considering the way in which the system operated in the South.

168.

Mr Ford: If we consider the different contexts, we are dealing with very different numbers.

169.

Mr Small: Exactly: there are different ways of doing this. We could adopt a universal system, such as in the South, or we could try to define and restrict the system in a variety of ways, which is important.

170.

Mr Ford: Would it be appropriate for you to prepare a paper outlining the potential range of acceptable appellants, and the implications of that, rather than considering the worst-case scenario?

171.

Mr McKay: Yes. We can speak to the Minister about qualifying the system in that way.

172.

Mr Ford: That would be very helpful.

173.

The Chairperson: I will take one last question, and then Mr Small wants to speak about two other matters. The Committee will have to consider and discuss them on another occasion.

174.

Mr M Murphy: Your argument against third-party appeals is that it would hold up the planning process. That is not a reason to allow bad planning practice. You mentioned Monaghan, but you did not mention some of the decisions that were overturned in the Republic, such as the proposed use of flood plains for two business parks. That was overturned because the location was not accessible by public transport and would have been contrary to the practice of sustainable development. The best known case, which should have been cited, was Mary McAleese's application to build a lakeside home in Roscommon. But for third-party appeals, that would have been approved.

175.

Mr Small: The success rate of third-party appeals in the South is very high.

176.

Mr M Murphy: That shows that there is a good reason for them. You should consider what happens with planning applications that are contrary to the provisions of adopted development plans; with applications in which local authorities have an interest, as they tend to get rushed through; and applications, accompanied by environmental impact statements, that planners have recommended should be refused permission. They should be subject to third-party appeals. Those are your starting points.

177.

The Chairperson: The Department knows how the Committee feels about third-party appeals. We will hear from you again on the matter. Witnesses from the Northern Ireland Office are waiting outside the room so can you explain quickly the two matters that you want to address, Mr Small?

178.

Mr Small: Annexe B deals with how to address a development that starts without planning permission. The Committee previously expressed concern about some developers pushing ahead with development before getting the appropriate permission. The paper sets out our enforcement powers under the Planning Order and addresses difficulties in the system: fines are too small, we cannot get necessary information; and we lack flexibility in the enforcement process.

179.

The paper then goes on to outline the provisions in the Planning (Amendment) Bill, which the Department feels will help. It refers to the new contravention notices and increased penalties that the Department will introduce. The current proposal in the Bill is that a penalty in the Magistrate's Court will increase to £20,000. For the first time here the new provision will allow us to take cases of non-compliance with an enforcement notice to the Crown Court. We could do that with listed buildings but not with general enforcement offences, so that is a major move forward.

180.

Unlimited fines will be available in the Crown Court, another important change. The Minister and the Department are committed to pursuing enforcement with much more vigour than in the past. The Department will take cases through the Crown Court with those new powers to take maximum advantage of the new unlimited fines that will be available.

181.

The paper then briefly mentions the Green Paper that was introduced in England. It is seeking comments on creating a new offence. The paper says that it is an offence in the South to begin development without permission, but the Department has had discussions with officials in Dublin that suggest that the power is there but difficult to use partly because the courts prefer to see the Department pursuing other means of enforcement before resorting to court action. Nevertheless, it uses the power and occasionally prosecutes directly, but the success rate seems disappointing.

182.

The paper mentions Queen's University's research findings from that project, which suggest that there is merit in introducing that new offence here. That is likely to make a positive contribution to the effectiveness of enforcement. It qualifies that with other matters such as the will to enforce, the resources necessary for it and the training of enforcement officers. However, the basic principal outcome of the research seems to support introducing the new offence. The paper briefly summarises experiences in Europe where that provision exists. It also talks about other issues that are relevant in France, Spain and Germany.

183.

The Minister has taken account of the Committee's concern on this and Queen's University research that supports creating the new offence. Having considered it further, the Minister is now minded to make the kind of amendment that the Committee proposes, subject to any further comments from the Committee and subject to agreement with the Executive and the Secretary of State. The Minister will prepare a detailed case to put to the Secretary of State. That is the Minister's position now, and that reflects his speech on Monday. He is keen to make that firm case to the Secretary of State subject to the Committee's comments.

184.

The Chairperson: In your submission you state that, subject to the views of the Committee, the Department intends to prepare a detailed case for submission to the Executive and the Secretary of State. The Committee would like to see a draft of that submission.

185.

Mr Small: The other paper deals with the levels of fines. The role of the Magistrate's Court and the fines and penalties imposed by it suggest that it would be inappropriate to have unlimited fines from the Magistrate's Court or higher fines than what is being proposed. The Department has reached that conclusion from discussions and consultations with the Court Service.

186.

The paper recognises the fine of £20,000 that was proposed in 1991 in Great Britain, and it acknowledges that inflation should be taken into account when considering what the fine should be now. The paper proposes that, subject to the Committee's comments, a case be put to the Secretary of State suggesting a higher fine to take account of inflation. The sum of £30,000 is suggested. The paper also draws the Committee's attention to the new ability to go to the Crown Court. The Minister and the Department intend to do that where unlimited fines will be available.

187.

Mr Ford: If the Minister is giving a commitment to using the Crown Court when appropriate, the court will deal with that. The Committee should recommend that the Minister suggest a fine of £30,000 rather than £20,000 to the Executive.

188.

The Chairperson: Does the Committee agree to £30,000?

189.

Mr Small: We must secure the necessary agreements to that, and we will share the draft with the Committee.

190.

The Chairperson: Thank you for attending this morning's meeting.

Thursday 4 July 2002

Rev Dr William McCrea (Chairperson)

Ms Lewsley (Deputy Chairperson)

Mr Armstrong

Mr A Doherty

Mr Ford

Mr Molloy

Mrs Nelis

Mr Poots

Mr Watson

Mr H McKay

Mrs M Hempton ) Department of the Environment

Mr J Lambe

191.

The Chairperson: Good morning.

192.

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

193.

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

194.

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

195.

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

196.

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

197.

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

198.

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

199.

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

200.

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

201.

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

202.

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

203.

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

204.

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

205.

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

206.

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

207.

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

208.

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

209.

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

210.

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

211.

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

212.

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

213.

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

214.

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

215.

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

216.

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

217.

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

218.

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

219.

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

220.

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

221.

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

222.

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

223.

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

224.

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

225.

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

226.

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

227.

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

228.

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

229.

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

230.

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

231.

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

232.

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

233.

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

"The provisions will provide the Department with flexibility to require only partial remedy of a breach of planning control"?

234.

Mr McKay: It gives the Department flexibility to take into consideration the precise circumstances at the time the enforcement notice is due to have effect. The enforcement process involves an appeal process through the PAC. If the case goes to the courts, it can be drawn out over a long period of time. The proposal allows for partial enforcement, or under-enforcement, when circumstances have changed since the enforcement notice was originally served and some of the unauthorised activities originally specified in the notice have been rectified by the developer or when other factors in the vicinity come into play and render the activities of the developer less serious.

235.

If, for example, a lengthy appeal was taking place and a developer had not complied with a landscaping condition - perhaps he had put up a solid fence instead of a hedge - we could over time consider whether the surrounding properties were such that the fence was now permissible.

236.

Ms Lewsley: Do you place the enforcement notice on a whole site or only on part of it?

237.

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

238.

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

239.

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

240.

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

241.

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

242.

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

243.

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

244.

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

245.

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

246.

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

247.

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

248.

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

249.

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

250.

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

251.

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

252.

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

253.

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

254.

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

255.

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

256.

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

257.

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

258.

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

259.

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

260.

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

261.

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

262.

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

263.

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

264.

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

265.

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

266.

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

267.

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

268.

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

269.

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

270.

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

271.

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

272.

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

273.

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

274.

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

275.

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

276.

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

277.

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

278.

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

279.

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

280.

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

281.

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

282.

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

283.

Mrs Nelis: There are no enforcements.

284.

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

285.

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

286.

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

287.

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

288.

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

289.

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

Thursday 5 September 2002

Rev Dr William McCrea (Chairperson)

Ms Lewsley (Deputy Chairperson)

Mr Armstrong

Mrs Carson

Mr Ford

Mr McClarty

Mrs Nelis

Mr Poots

Mr D Small ) Department of the Environment

Mr J Lambe )

290.

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.

291.

The Chairperson: Please send Mr McKay our good wishes.

292.

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.

293.

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. Following 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.

294.

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.

295.

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.

296.

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.

297.

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.

298.

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.

299.

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.

300.

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.

301.

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.

302.

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.

303.

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

304.

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

305.

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?

306.

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.

307.

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.

308.

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.

309.

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.

310.

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.

311.

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.

312.

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.

313.

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

314.

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

315.

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

316.

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.

317.

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.

318.

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.

319.

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

320.

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

321.

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.

322.

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.

323.

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

324.

Mrs Carson: You have said that

"if the breach is serious an enforcement notice is the correct mechanism to use. £1,000 is considered consistent and proportionate with other levels of fines."

325.

If the fine is £1,000, it does not give much hope for fines for further breaches.

326.

Mr Small: If a breach is serious, an enforcement notice with higher levels of fines will be used. In those circumstances, the maximum fine will be £30,000 in a Magistrate's Court and unlimited in the Crown Court. The fine of £1,000 for the breach of condition notice, if we pursue that process, is considered consistent with other levels of fines and penalties in the Bill. However, we have taken on board the points made by the Committee and will re-examine those issues.

327.

Mr Small: Clause 4 deals with new time limits on enforcement action and sets down when it can be taken. It introduces changes to the current arrangements whereby a breach of planning control can be immune from enforcement action if it falls within certain dates.

328.

Coleraine Borough Council said that subsection 3 should be amended to exclude immunity for significant breaches in planning control. The council broadly accepts the changes in time limits but feels that that circumstance should be excluded when a significant breach is involved. It is extremely unlikely that we will be able to take successful enforcement action against breaches that occurred more than 10 years ago. It would be difficult to acquire the necessary evidence. Rather than waste valuable resources on enforcement action that is unlikely to be successful, we prefer to target our resources on areas in which we might get a positive result. The changes are being made for that very reason. We believe that the shift in time limits is still appropriate.

329.

The Construction Employers Federation (CEF) and Lisburn Borough Council raised a second point about the words "substantially completed" in article 67. It was suggested that the wording is unclear. In fact, that wording was deliberately chosen to give effect to previous case law and court rulings in which courts expressed doubt about anything more firm than "substantially completed". The initial proposal was that "completed" should be included, but previous case law and court rulings suggested that we should instead use the more vague "substantially completed".

330.

Finally, the Woodland Trust raised issues concerning article 67A and suggested that planning permission should be required for the removal of trees. We have discussed that point and agreed to re-examine it and report back to the Minister.

331.

Mr Small : Clause 5 deals with enforcement notices and the process for enforcement. Lisburn Borough Council suggested that the provisions should be amended to ensure that district councils are consulted at appropriate stages throughout the process. We are concerned that doing so would considerably delay the enforcement notice process, when, in fact, the purpose of the enforcement provisions is to try to speed up the process. There is already concern that enforcement action takes far too long - given the various appeals, it can take a year or more. We would be concerned about any provisions to consult district councils that would further extend that period. There is no indication from the other consultation responses of any support for the suggestion from Lisburn, and at this stage we have no plans to amend the provisions.

332.

The RSPB had reservations about the term "under enforcement" and suggested that the criteria should be made clearer. The difficulty lies in the words in the provisions where "under enforcement" is mentioned, and a better choice of words would be "targeted enforcement". The provision is intended to give us more discretion, so rather than having to enforce against every single breach where we might be content to grant permission, we can be very selective in where we take enforcement action. It is not "under enforcement", but "targeted enforcement".

333.

Finally, the CEF and Lisburn Borough Council referred to article 68 and suggested amending the wording to clarify what a "replacement building" means: where the Department has powers to require a replacement building. Article 68A(7) already prescribes what constitutes a replacement building and sets out the circumstances of what is required. We are not aware of how that provision can be made more precise. If a dispute were to develop over what was required, the Planning Appeals Commission or the courts would have to resolve it.

334.

Mr Poots: You said that the RSPB only takes up the case of certain breaches and not others and that the breaches might be permissible. How can the breaches be permissible after they have been carried out, if that was not your opinion when approval was granted?

335.

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.

336.

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.

337.

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.

338.

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.

339.

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

340.

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.

341.

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?

342.

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.

343.

Lisburn 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.

344.

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?

345.

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.

346.

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

347.

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

348.

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

349.

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.

350.

Mr Small: Coleraine Borough Council raised an issue about strengthening the provisions of the clause. It suggested that there should be some form of penalty for retrospective applications. The Department is considering that in the context of the ongoing review of planning fees. This is not new and has been raised in the past. It is closely linked to the new provisions that we are proposing that will make it unlawful to start development without planning permission. The introduction of a penalty retrospective fee would be another way of dealing with that. We are looking at that in the context of our review of fees, which may well result in a change to the fees Regulations. It would mean subordinate rather than primary legislation.

351.

The Northern Ireland Environment Link asked how quickly stop notices can take effect and suggested that they should take effect immediately. The provisions already allow a stop notice to take effect immediately, but the form of wording allows us some discretion on when it should take effect. That is to ensure that any other requirements, such as health and safety legislation, can be accommodated. It might be that a stop notice will take effect within half a day or one day to allow certain other statutory requirements to be met. When a serious incident takes place and we think that it should stop, the provisions allow a stop notice to take immediate effect.

352.

Mr Small: As well as a range of comments about higher levels of fines on an enforcement notice, which we are dealing with separately, Down District Council referred to the need to clarify the references to a continuing offence. It was concerned about the wording, which is complicated, but its effect is simply to allow daily fines to be imposed where a continuing offence is taking place, or for fines to be imposed weekly or monthly. It broadens the discretion available to impose a fine. We are not sure how that could be made clearer. It is a form of legislative wording that defines the scope for dealing with continuous offences and the range of penalties available.

353.

Mr Small: Down District Council referred to the need for an increase in the level of fines for wilful obstruction of unauthorised work in compliance with an enforcement notice. Our position is that the level of fine is consistent with others in planning legislation concerned with wilful obstruction. The fine imposed under clause 8 is limited to the execution of works by the Department, or by others on its behalf, to ensure that work required by an enforcement notice is carried out. We have other wider powers under our enforcement notice procedures, which would only be used in specific circumstances. Given that we have undertaken to look at the other levels of fines in the Bill, however, we shall do the same in this instance.

354.

Mr Small: The Hearth Revolving Fund and the Association of Preservation Trusts made the point that stop notices should have immediate effect, which we have already dealt with. The Historic Buildings Council makes the point that, in relation to the new article 73(7C) that is proposed in clause 9, there should be powers to order the reinstatement of buildings. In that respect, the Department already has power under article 77 to require the reconstruction of a listed building.

355.

The Chairperson: You have already said that you are looking at the Coleraine Borough Council's suggestion regarding penalty fees for those who go ahead with unauthorised development. The issue of stop notices has come up in relation to both clause 6 and clause 9. There is no doubt that a stop notice should mean "Stop". Surely it should be made clear in the legislation that the only work that can be done is that which is necessary for health and safety purposes. "Stop" should mean "stop", but at the moment it does not. It means "Carry on". People are driving a coach and horses through this. A stop notice means absolutely nothing to them. They carry on.

356.

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.

357.

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 Magistrate's Court or to an unlimited amount in the Crown Court.

358.

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.

359.

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

360.

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.

361.

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

"a stop notice shall not take effect until such date as it may specify (and it cannot be contravened until that date), being a date not earlier than 3 days after the date when the notice is served, unless the Department considers that there are special reasons for specifying an earlier date and a statement of those reasons is served with the stop notice".

362.

Surely that is backside forward? A stop notice should be immediate, and the three days should be for a special reason such as health and safety. That is the very opposite of what it says here.

363.

Mr Lambe: The three-day period is a feature of current law.

364.

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

365.

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.

366.

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?

367.

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.

368.

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

369.

The Chairperson: You must let the Committee know.

370.

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

371.

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.

372.

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

373.

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.

374.

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.

375.

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.

376.

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?

377.

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.

378.

Mrs Nelis: Does that include the site workers?

379.

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.

380.

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.

381.

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.

382.

Mr Small: Currently, 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.

383.

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?

384.

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

385.

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 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?

386.

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

387.

Mr Small: Yes.

388.

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.

389.

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

Thursday 12 September 2002

Rev Dr William McCrea (Chairperson)

Ms Lewsley (Deputy Chairperson)

Mr Armstrong

Mrs Carson

Mr Ford

Mr Molloy

Mrs Nelis

Mr Poots

Mr Nesbitt ) Minister of the Environment

Ms M Hempton )

Mr J Lambe ) Departmental Officials

Mr I Maye )

390.

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.

391.

Mr Nesbitt: We have had many a disagreement, but I appreciate your bringing the meeting forward, because I have to catch a plane.

392.

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.

393.

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

394.

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.

395.

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.

396.

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

397.

Mr Nesbitt: Yes.

398.

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.

399.

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.

400.

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

401.

Mr Nesbitt: I give my commitment now - readily.

402.

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

403.

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

404.

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.

405.

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.

406.

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?

407.

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.

408.

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

409.

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.

410.

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

411.

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.

412.

Mr Poots: Is that the Edinburgh case?

413.

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.

414.

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

415.

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.

416.

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?

417.

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.

418.

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

419.

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.

420.

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

421.

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.

422.

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.

423.

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.

424.

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

425.

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.

426.

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.

427.

Mr Nesbitt: Nothing crystallises the mind more than responsibility.

428.

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.

429.

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.

430.

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.

431.

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

432.

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.

433.

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.

434.

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.

435.

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.

436.

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.

437.

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

438.

The Chairperson: The Committee will seek further legal advice.

439.

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.

440.

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.

441.

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.

442.

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.

443.

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.

444.

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.

445.

The Chairperson: The Deputy Chairperson and I met with 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.

446.

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

447.

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.

448.

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.

449.

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

450.

Mr Nesbitt: The Committee always does.

451.

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

Thursday 19 September 2002

Rev Dr William McCrea (Chairperson)

Ms Lewsley (Deputy Chairperson)

Mr Coyle

Mr Ford

Ms Nelis

Mr Poots

Mr Watson

Mr I Maye )

Mr J Lambe ) Department of the Environment

Mr D Small )

452.

The Chairperson: I welcome Mr Ian Maye, Mr Jackie Lambe and Mr David Small from the Department of the Environment. Thank you very much indeed for coming. We will continue our consultation process. I would ask you to make your opening remarks, and Members can then ask questions.

453.

Mr Maye: Before I pass over to the experts on these issues, the Committee raised several issues when we appeared here about two weeks ago. We are just about to put a submission to the Minister with our recommendations on them, and, once agreed, we will put a paper to the Executive Committe. Some issues, for example increased fines and penalties, have to go to the Executive Committee for approval and, in turn, to the Secretary of State as they are reserved matters. However, we will share those papers with the Committee as soon as we send them to the Executive Committee. We had hoped to be in a position to let you know today, but we should know the Minister's view before the end of the weekend, and we should be in a position to tell you then.

454.

The Chairperson: That is about the level of fines and the stop notices.

455.

Mr Small: Before we continue with the clause-by-clause consideration, a point was raised last week about on whom a stop notice can be served quite apart from the question of how quickly it takes effect. Article 73(5) of the Planning (Northern Ireland) Order 1991 allows us to serve a stop notice on any person who appears to us to have an estate in the land or to be engaged in any activity prohibited by the notice. The powers are wide ranging and give us broad scope with whom we wish to serve the notice on. You expressed concerns about a particular case, and we fail to see why there was such difficulty in serving the stop or enforcement notice in that case. However, we can look at it in more detail, if you give us more information about it.

456.

Mrs Nelis: I would be happy to do that, and I am glad to hear that you have such widespread powers. However, the problem is using those powers. It is not just that case - I could cite several cases of developers putting a horse and cart through planning permission with conditions, and no attempt was even made to enforce them. When there was enforcement, notice was served on the developers, for whatever reason. That is what planners have been telling councils, and every member of the Committee has had similar experiences.

457.

Mr Small: We accept that enforcement has probably not been as robust as we would like. However, we have made a commitment to changing that. I see no reason for any difficulty in serving a stop or enforcement notice. If we have to be more robust, we will be.

458.

Mrs Nelis: This may come up during consideration of the clauses: you cannot enforce anything after someone chops down a dozen trees. How do you cross that Rubicon?

459.

Mr Small: In certain circumstances we can take enforcement action, and the Bill will give us new powers. Our powers are significantly strengthened when trees are protected by a tree preservation order. There is the level of fine that we can impose and the new powers that the Bill gives us to require the trees to be replaced. That has the effect of removing the development opportunity.

460.

Mr Small: In response to the consultation exercise, Down District Council suggested that the maximum fine that could be imposed by a court in cases where false or misleading statements were made must be made clearer. The Bill states that the level of fine to be imposed will be the statutory maximum. That refers to the standard scale and, although the amount is not stated, the statutory maximum is £5,000, so the level of fine is clear.

461.

With regard to Article 83(f) of the Order, the Planning Appeals Commission suggested that the wording should be amended to make it clear that only a Planning Appeals Commissioner can hear an appeal. The difficulty is that the wording used in one or two parts of the Bill suggests that the Planning Appeals Commission may appoint a person to hear an appeal. That is incorrect, and we will make the necessary amendment to make it clear that the Planning Appeals Commission will hear the appeal. We will share that amendment with the Committee when it is drafted.

462.

Mr Small: Coleraine Borough Council suggested that the fine for wilful obstruction is inadequate, one of the issues raised by the Committee that we are considering. We hope to respond next week.

463.

The Chairperson: We hope that the levels are consistent.

464.

Mr Small: Many comments were made about clause 12. Down District Council welcomed the changes but suggested that powers were needed for reinstating a building, or other construction, when unauthorised demolition had taken place. We already have that power under article 77 of the Planning (Northern Ireland) Order1991.

465.

The Hearth Revolving Fund referred to the need for higher fines to reflect the financial benefit to the developer. As you know, such increased maximum levels are now proposed in the Bill. The Hearth Revolving Fund also suggested that fines should be imposed per property rather than per case. We can do that already. That concern goes back to a case where a judgement was made on legal advice to pursue a case for demolition as a whole rather than per property.

466.

The Historic Buildings Council also suggested that the maximum level of fine in a Magistrates Court should be £1 million. We have already had a lengthy discussion with you about the maximum level of fine in the Magistrates Court and the unlimited fines in the Crown Court.

467.

The Ulster Architectural Heritage Society said that the loss of historic buildings in conservation areas was not addressed separately. The listed building provisions in the principal Order and the Planning (Amendment) Bill are applied to buildings in conservation areas. The Bill deals with that but in a less explicit way than the Ulster Architectural Heritage Society would like. Its other point concerned the maximum level of fine, and that has been dealt with.

468.

The Chairperson: There is a deep concern about losing historic buildings. The situation is becoming quite horrible. In clause 12, which replaces article 44(6) of the Planning (Northern Ireland) Order 1991, the proposed new paragraph 6(b) says that a person guilty of an offence shall be liable

"on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine or both".

469.

Can you describe a situation in which that would be imposed?

470.

Mr Small: The penalties have been increased for a developer who fails to comply with a listed building enforcement notice. Fines have been increased to a maximum of £30,000 in the Magistrates Court and to an unlimited amount in the Crown Court. Furthermore, custodial sentences have been introduced. The courts will determine the penalty, but the new legislation offers a better range.

471.

Mr Small: The effect of this clause is to introduce higher levels of fines and penalties for contravention of hazardous substances notices. Coleraine Borough Council said that the maximum level of fines should be higher. That matter has been addressed separately.

472.

Mr Small: Coleraine Borough Council was concerned about the grounds for appeal, as set out in the proposed new Article 82(a) of the Bill. It suggests that they may be misused. We do not accept the council's concerns. The grounds for appeal are standard and reasonable and, as with all appeals, the Planning Appeals Commission will determine whether the grounds for an appeal are valid.

473.

The Royal Society for the Protection of Birds was concerned that not enough tree preservation orders were being imposed. We acknowledge those concerns and are committed to using tree preservation orders more robustly and proactively than in the past.

474.

Mr Small: Many comments were made about our use of the new powers and how far they will be extended. We intend to extend the new control over the demolition of buildings in areas of townscape character (ATCs) that are identified in a development plan. The number of ATCs in place now is expected to grow considerably, so that a significant number will be in place offering that new control over demolition. Should the need arise, we will have discretion under the provisions of the Bill to extend that control of demolition to other classes of buildings.

475.

Mr Small: No specific comments were made about clause 16.

476.

The Chairperson: We will stop there to allow members to raise questions.

477.

Mr Ford: I am perturbed by your response to suggestions on clause 14 to the effect that it is not the Department's function to protect trees. I know what you mean, but the phraseology is unfortunate. There is a suggestion that you only have discretion to allow tree preservation orders (TPOs) for trees on land considered to be under threat of development. What does "under threat of development mean"? Trees are under threat in every suburb of Belfast and on the fringes of every small town in Northern Ireland, so they all appear to met your criteria for TPOs.

478.

Mr Small: In those circumstances you are right. I refer back to our intention to be more proactive in how and where we serve TPOs. In the past there was a tendency to apply a TPO where development was proposed and the threat was very real. We could look at extending that approach.

479.

Mr Ford: Do you not think that the first sentence at that bullet point - that it is not the Department's function to protect trees - is perhaps more than unfortunate?

480.

Mr Small: Yes. The intention was to acknowledge our function to protect trees in specified circumstances.

481.

Mrs Nelis: What does specified criteria mean in relation to clause 14?

482.

Mr Small: That was a point made by the Royal Society for the Protection of Birds. It felt that the circumstances in which we would contemplate imposing a TPO needed more specific criteria. I am not clear what is intended by that, but the danger is that it might limit our discretion when making a tree preservation order, and we must maintain as much discretion as we can.

483.

The Chairperson: If the removal of a building is part of a development, could it not be that the removal of trees is part of a development and that the purpose of removing trees is development? Coleraine Borough Council raised that point in the discussion about demolition.

484.

Mr Lambe: The answer is yes. Where there is a current development proposal, it could be argued that the removal of trees is part of that proposal. It is more difficult to see that argument when someone decides to remove trees because he does want them there but has not yet decided what to do with the site, to use it for development or for some other purpose.

485.

Linking the removal of trees to some future development proposal might be difficult to justify and argue in all circumstances. It would depend on exactly when the trees were removed and on whether a development proposal was with the Department or being contemplated by the landowner or developer. People often remove trees simply to reserve their options for the future should they wish to develop a site. Linking the two might be difficult to prove at some future enforcement or court case. I do not know how a court would view that.

486.

There is a strong argument for linking the removal of trees when a firm development proposal is before the Department. A developer might get round that by persuading a landowner to remove trees in anticipation of his disposing of the site, so the developer could not be held responsible for their removal. The Department cannot penalise the developer, who is now the landowner, for removing trees at a time when he had no responsibility for the land.

487.

Mr Small: There would have been no firm development proposals.

488.

The Chairperson: Can any protection be given in law to deal with that problem?

489.

Mr Small: We have debated that with you before, and it was considered that the kind of protection desired would probably require blanket protection against all removing or cutting down of trees. The implications of that for private house owners who simply wanted to remove a tree from their private garden would be considerable. The resource implications for the Department and the costs for individuals would be significant if every individual were required to seek planning permission to do that. We have looked at that and have serious concerns about how it would operate.

490.

Mrs Nelis: The Bill must address the current situation. Developers move in on a Saturday morning and cut down the trees, and nothing can be done then. They then apply for planning permission and give an assurance that they will replace the trees. However, history has shown that they do not replace them. Mr Ford has said that the fauna and flora of the countryside are being eroded by development, and I am concerned that there is a weakness in legislation on this.

491.

Mr Maye: The weakness is more a practical than a legislative one. We should really survey the whole of Northern Ireland, identify trees which should be protected and impose a TPO. That is happening.

492.

The Chairperson: Most of the developers will have the trees cut down by the time that is completed.

493.

Ms Lewsley: Particularly if they hear what the Department is doing.

494.

Mr Maye: If we impose blanket protection on all trees, every householder and farmer in Northern Ireland will have to apply to the Department before he or she can touch any tree anywhere.

495.

The Chairperson: The Committee is asking the Department to see if there is a way to deal with this. It is not going into the situation referred to: that is not the purpose of the Bill. The Committee wants people in councils who can draw up legislation to see whether it is possible. It has been suggested that a new paragraph (e) could be added to the list in clause 15(1). Perhaps that could be looked at.

496.

Mr Small: This clause gives the Department power to decline to determine a repeat application, which is one that is similar to an earlier application that the Department refused. That provision was proposed in the Department's recent consultation paper 'Modernising Planning Processes'. In fact, the proposal was made during consultation on the Planning Bill in 1999, so its inclusion in that paper was unnecessary. We are content that the clause should remain part of the Bill.

497.

Mr Small: This gives the Department primary legislative powers to introduce more environmental measures linked to environmental impact assessment requirements. The Regulations to implement the EC Directive on environmental assessment were implemented under the European Communities Act 1972, which meant that our legislative provision had to be in keeping with the basic requirements of the Directive. The provision in the clause simply gives us a little more discretion and scope.

498.

Mr Small: This clause gives the Planning Appeals Commission (PAC) the power to dismiss appeals in cases of undue delay. Since the Committee consulted with the PAC on the provisions of the Bill, the chief commissioner has told us that he does not have a problem with undue delays and sees no need for such provision. We considered the power to be permissive - the Commission would use it if, and when, it determined it was required. However, given the chief commissioner's views, we have reviewed this. It may be wrong to include that power when the chief commissioner has said that he does not need it, so we propose to withdraw that clause if the Committee is content.

499.

The Chairperson: Given that the PAC has said that, agreeing to the clause's removal should not be a problem.

500.

Mr Small: We will also listen to the views of OFMDFM, which sponsors the PAC.

501.

Mr Ford: Why did you introduce the clause if the PAC said that it has no problem with undue delays? The fact that there is no problem now is not necessarily a reason for not introducing it. There might be a problem in five years' time, and there will not be another Planning Bill for years.

502.

Mr Lambe: The Planning Inspectorate in England was granted the power to dismiss appeals in case of undue delay under the Planning and Compensation Act 1991. When the consultation paper was being produced, the Department gave a commitment to include a range of new enforcement measures in the Bill. One such measure was the power to dismiss appeals in cases of undue delay that was outlined in the 1991 Act. At the time, no one expressed any concern about the power. Thus, we drew up the draft instructions to have it included in the Bill. It is only now, at this late stage, that the Planning Appeals Commission has told us that it does not feel that it needs the power.

503.

Mr Ford: It would be interesting to know about the experiences of the other three jurisdictions, given that they have had the power for 10 years.

504.

Mr Maye: We can find out more about that.

505.

Mr Ford: When I first read clause 17, I did not study article 25(a)(1)(a)(i) very closely. Why does it specifically refer to article 31 alone? Should not repeat planning applications that might adversely affect small neighbourhoods be subject to dismissal as happens with repeat applications that affect large neighbourhoods that were refused under Article 31? Are the problems not the same?

506.

Mr Small: Article 31 cases are resource-intensive. The intention was to free the resources that are wasted on processing repeat applications so that other issues can be dealt with.

507.

Mr Maye: We canvassed views on that in the consultation on 'Modernising Planning Processes'. The majority of respondents said that we should extend the provision to all cases, so that, when repeat applications without material changes are made, the Department need simply not consider them.

508.

Mr Ford: I suspect that those consultees did not include the small group of residents in a particular street who happen to be affected by one issue. If you examine the public concern, as well as the Department's resource issues, you would find a wider case for extending the provision.

509.

Mr Small: The Housing Executive asked why planning obligations, which would have a wider scope, were not introduced. The Bill's provisions do that but keep the local term "planning agreements", so what the Housing Executive suggested has already been incorporated in the Bill.

510.

We did not take on board the unilateral aspect of planning obligations. That provision dealt with a specific problem that occurred in England, when a local authority demanded too high a contribution from the developer. They failed to reach an agreement, and the case went to the Secretary of State on appeal. In those circumstances, the unilateral aspect of the provision, which was enacted in England, gave the Secretary of State a unilateral power to agree an appropriate contribution from the developer. In Northern Ireland that power would be given to the Planning Appeals Commission. Given the different legislative and planning arrangements here, where the Department of the Environment is the planning authority, it was felt that the sort of difficulties that led to that provision's being included in English legislation were unlikely to arise here and that the unilateral aspect was, therefore, unnecessary.

511.

Lisburn Borough Council referred to article 40(A) and suggested that it should be amended to reflect consultation with district councils. We have no plans to change the Bill to include consultation with district councils on a matter that deals with modification to a planning agreement where agreement has been reached between a developer and the Department. There was no widespread comment on, or support for, Lisburn's proposal. Consultation with district -

512.

The Chairperson: Would that be viewed as too democratic?

513.

Mr Small: No. That was not our thinking. This is part of the process through which a developer and the Department reaches agreement on contribution, and the extra step of consulting district councils would simply delay the process further. Agreeing the terms of a planning agreement can be a long, drawn-out process as it is. We viewed the proposal as another hurdle which would cause further delay. Given that it had no other support, we were content with the Bill's provisions.

514.

The Chairperson: Giving the impression that the proposal had no other support would be wrong. Perhaps no one else saw the flaw. It was not the case that a proposal to consult with district councils was put to consultees and received no support. That is a completely different view.

515.

Mr Small: I take your point, but not all consultees agreed.

516.

Mr Lambe: Lisburn Borough Council suggested that councils should be consulted when the Department proposes to amend article 40 agreements. It did not suggest that councils need to be consulted when article 40 agreements are originally drawn up. There does not seem to be logic in consulting councils on proposed amendments to agreements and not consulting them when those agreements are first drawn up.

517.

The Chairperson: Are you suggesting that to be consistent?

518.

Mr Lambe: We were not told that district councils should be consulted when planning agreements are first drawn up.

519.

Mr Small: We would need to consider that in a broader sense rather than just on modification purposes.

520.

Mr Ford: The Committee might suggest that.

521.

The Chairperson: It might. It is an important point worth considering. Consistency is also important.

522.

Mr Maye: It fits into the context of councils' earlier engagement with the Department when the principle elements to be included in planning applications are thrashed out. Article 40 agreements put flesh on the bones. Modifications happen at the detailed stage rather than at the principle stage.

523.

The Chairperson: Councils are usually consulted at two stages when a planning application is being considered: the principle stage and the full stage, so it is surely appropriate to suggest that, if they are consulted at the principle stage, they should also be consulted on detailed amendments.

524.

Mr Ford: I agree. Many site meetings end up haggling over details rather than discussing the principles of an application. It seems entirely consistent that councils should be involved at both stages.

525.

The Chairperson: Yes. Will you take the Committee's view on board?

526.

Mr Small: The Planning Appeals Commission also raised a point on clause 20, repeating its concern about the wording used when a case is referred to appeal, which we dealt with earlier. It should clearly be an appeal by the Planning Appeals Commission.

527.

The Royal Society for the Protection of Birds said that planning agreements should be secured within a clear strategic planning framework including development plans. Our view is that planning decisions are made in accordance with prevailing planning policies, including the development plan, and reflect that planning framework.

528.

Mr Small: The purpose of clause 21 is to broaden the scope of the definition of advertisements. Two consultees commented on the definition of advertising and specific types of advertising. We are reviewing the enforcement of advertising controls and considering a range of matters. There are no firm conclusions as yet, but there could be a change to the primary or subordinate legislation or to the enforcement procedure. We cannot make progress until that work is concluded.

529.

The Chairperson: I mind your leaving that to be dealt with by another Bill. When will that be? This will go on the long finger with a lack of control in the meantime. I am sure that members have views on that.

530.

Mr Small: We know that, which is partly why the work has been initiated. Any change is more likely to be a change to subordinate legislation on advertising regulations rather than to primary legislation. We are not clear about what form of legislative change will be appropriate, and that is why we are unable to develop proposals.

531.

The Chairperson: We will have to return to that point.

532.

Mr Small: However, we are considering that seriously.

533.

The Chairperson: I spoke to the authorities several times about a hole in a road in my constituency and was assured that men were looking into it. I went to the site and found four men looking into it. It would have been better if one of them had been looking into the hole and the other three were doing something about it. Just because you are looking at something does not mean that you will move on it. However, I am happy to be surprised.

534.

Mr Small: Clause 22 deals with building preservation notices and the Department's new power to impose such a notice to achieve immediate listing. Down District Council welcomed the new power and said that it should come into force as soon as possible. Such building preservation notices will become effective as soon as they are served. The arrangements for that are set out in clause 22 article 42(a). In urgent cases, the Department has the power to serve a building preservation notice simply by placing a notice on the building, so it can take immediate effect.

535.

The Hearth Revolving Fund asked if building preservation notices can be invoked as a precaution. They can, but there will be compensation provisions in the Bill for circumstances in which the Department imposes a notice but fails to confirm the listing within six months. In such circumstances, any loss suffered during that time may be subject to compensation payment.

536.

Mr Small: Many comments were made about clause 23. The Construction Employers' Federation referred to the need for consultation with builders and developers. Landowners and those with an interest in land will be consulted prior to the imposition of a tree preservation order.

537.

The RSPB had reservations, of which we are aware, that not enough tree preservation orders were being imposed and referred to the need for specific criterion.

538.

The Ulster Architectural Heritage Society suggested that trees within the curtilage of a listed building should automatically be protected by tree preservation orders in the same way as that power is applied in conservation areas. There is nothing to prevent us from serving a TPO on trees that are in the curtilage of a listed building, but we are concerned about giving automatic protection because of the legal difficulties involved in defining the curtilage of a listed building. Linking automatic protection to those legal difficulties makes the suggested provision difficult.

539.

The Chairperson: Will you ask your legal experts to explain the difficulties? Our legal department has helped us with such difficulties, some of which were not as complicated as they seemed.

540.

Mr Small: We will look at that.

541.

The Chairperson: How is the compensation that clause 22 deals with determined? Will the Department be liable for compensation if notice is not confirmed within six months.

542.

Mr Small: I may have to come back to you on that. I suspect that it will be based on a case in court.

543.

Mrs Nelis: If the owner of a building who is served with a preservation notice says that the building is structurally unsound and therefore unsafe, how will the Bill address the owner's responsibilities and those of the Department to preserve a building which is not structurally sound?

544.

Mr Small: The effect of the building preservation notice will be to give that building the same protection as that given by listing. The existing listing powers in the Planning (Northern Ireland) Order 1991 will apply immediately. That also addresses circumstances in which there is deemed to be a risk.

545.

Mrs Nelis: Is the developer responsible?

546.

Mr Maye: In such circumstances the builder can be served notice to ensure that any remedial work is carried out to return the building to a good condition. There are difficulties with that and with the burden of proof if the builder or the owner presents a report by his independent expert. Sometimes that must be challenged and there are difficulties in practice. We are satisfied that the legislative provisions give us the necessary powers, but it can be difficult to put them into practice.

547.

The Chairperson: Perhaps it might be best to check to be sure that the guidance is clear.

548.

Mr Small: We shall come back on that. The Planning (Northern Ireland) Order 1991 sets out clearly that the need to do that must be demonstrated.

549.

Mrs Nelis: We want to preserve our lovely buildings, but some are in such a state of disrepair that they constitute a risk.

550.

Mr Ford: With regard to clause 23, the Woodland Trust and compensation payments, what is the position regarding compensation payments for TPOs? How many are there, and what is their sum?

551.

Mr Maye: There are several types of compensation. In two particular cases we are in dispute with the landowner, who has applied for compensation for loss of development value. Those cases are with the Lands Tribunal, but no decisions have been made. There are several other types of compensation. In practice, the landowner requests a valuer to value the compensation payable. We cross-check that with the Valuation and Lands Agency and senior counsel and haggle until an agreed figure is reached. We can come back to you with details of particular types.

552.

Mr Small: The Bill makes provisions to enable the Department to state clearly the compensation allowed. For example, we will be able to make it clear that the development value associated with a site will not be included in any compensation payment. That is really where the difficulty arises.

553.

Mr Ford: That meets the Woodland Trust's point.

554.

The Chairperson: You will come back on that. That is fine. Let us move on to clause 24.

555.

Mr Small: The explanatory and financial memorandum says that clause 24 means that development plans will have prime importance when planning applications are being decided. Several comments were made, and the general concern was that such provision should be introduced in the absence of up-to-date development plan coverage. We are considering when the new measure will take effect, and we are conscious of linking that to our current development plan programme, which is aiming for full, up-to-date coverage as quickly as possible.

556.

The Chairperson: There is genuine concern because many areas do not have up-to-date development plans.

557.

Mr Small: This deals with a range of provisions relating to the Planning Appeals Commission (PAC). The key point raised by the PAC during consultation was that the chief commissioner should be allowed to allocate decision-making on individual appeals to individual commissioners to get greater flexibility in the operational handling of appeals. Our view is that in the Planning Service decisions are made by a minimum of three senior planners. The Department and the Minister are opposed to allowing individual commissioners to determine appeals partly to maintain confidence in the process and partly to protect individual commissioners. We still wish to resist that proposal.

558.

Mr Small: Clause 26 sets out the circumstances in which grants will be payable. There were no specific comments on that.

559.

Mr Small: Coleraine Borough Council suggested that the provision in the Bill should contain examples of bodies and that it should be extended to include grants to Planning Aid and others. Our view is that it is a discretionary power and that each case will be determined on its merits. We would be reluctant to limit our discretion to offer grants by listing specifically the bodies to which we want the new grant-making power to apply.

560.

Mr Small: Clause 28 deals with the circumstances and papers that must be placed on the planning register.

561.

Mr Small: Clause 29 is a provision to put right something that was missed in legislative change in 1992. It is a minor technical amendment, and no specific comments were made.

562.

Mr Small: Clause 30 sets out the minor consequential amendments and repeals that will be necessary because of the main provisions. No comments were made on this.

563.

Mr Small: Again, no comments were made.

564.

Mr Small: No specific comments were made about this clause either.

565.

Mr Small: In relation to schedule 1, paragraph 5, representatives of the PAC suggested that article 32(6) should be amended. They suggested that the reference in article 32(6) of the Planning (Northern Ireland) Order 1991 to applying earlier articles 23 and 24 should be removed. We accept that. Article 32(6) should not refer to the application of articles 23 and 24 because they are not relevant. We propose to make that amendment, which we will share with the Committee.

566.

The Chairperson: In response to Coleraine Borough Council, you said that you were not minded to include any list. Can you give examples of the bodies?

567.

Mr Maye: They would include Planning Aid, Community Technical Aid and several other bodies. Our main point is that we want to retain the discretion so that when new bodies come along, just as Planning Aid has only come along in the past 18 months, we can consider them seriously.

568.

Mr Small: We pay a grant to building preservation trusts on an extra-statutory basis because of what the current legislation says. This provision will allow us to give it statutory cover.

569.

Mrs Nelis: I support Coleraine Council's view that statutory cover should also be given to Planning Aid.

570.

Mr Maye: This will allow us to give that cover.

571.

Mr Ford: I am surprised that the wording of clause 27 includes Planning Aid and Community Technical Aid. It does not appear that they will be entirely covered, and slightly different wording might make it absolutely explicit that they were suitable. I am not suggesting the wording, but no doubt it will take the lawyers several weeks to think it up. The issue is about providing full cover for groups like Community Technical Aid that do not seem to have their principal objectives listed, groups which are there to assist those commenting on such matters.

572.

Mr Maye: We will double-check that.

573.

Mr Small: We will check that. However, it may be covered in some of our existing provisions.

574.

Mr Ford: Clause 25 refers to the PAC delegation. Is the Committee to take it that there was strong representation from the chief commissioner that this should be allowed but that at the moment the Minister does not agree? We had a suggested clause on a previous matter that the chief commissioner said was not needed, and the Minister followed his advice then.

575.

Mr Maye: Our Minister, and OFMDFM Ministers, are involved in that, and they also oppose the changes suggested by the PAC. They see value in continuing corporate decision-making in the PAC to ensure consistence and quality.

576.

Mr Small: The earlier provision relating to dismissal of appeals was a permissive power that we had contemplated giving to the PAC. However, it said that it did not need it.

577.

Mr Ford: I accept that the situation is not entirely analogous.

578.

Mr Small: In this situation it is suggesting a complete departure from the way things operate at present.

579.

The Chairperson: You will be coming back to us again on certain matters. Members will read through the suggestions and concerns in the last part of the Bill, and that will be dealt with next week. We have moved on substantially today.

580.

The Clerk has reminded me about the Minister's request. It will be dealt with as fast as the Minister's Department gets answers. Thank you.

581.

Mr Maye: Thank you.

Thursday 3 October 2002

Rev Dr William McCrea (Chairperson)

Ms Lewsley (Deputy Chairperson)

Mr Armstrong

Mrs Carson

Mr Coyle

Mr Ford

Mr McClarty

Mr Molloy

Mrs Nelis

Mr Poots

Mr Watson

Mr J Lambe )

Mr I Maye ) Department of the Environment

Mr D Small )

582.

The Chairperson: I welcome Mr Ian Maye, Mr David Small and Mr Jackie Lambe from the Department of the Environment. Good morning, gentlemen. I understand that you are going to give a presentation on the issues and concerns raised by the Committee at previous meetings.

583.

Mr Maye: This is Mr Small's last appearance before this Committee. He is about to go to the Department of Agriculture and Rural Development, so he will be up before another Committee from now on. His place will be taken by Mr Wilfred Reavie, who is a long-standing member of the Planning Service with legislative experience. Mr Lambe will remain part of the team, so that we will not be bereft of all experience.

584.

The Chairperson: Mr Small, I wish you every success in your new appointment. I trust that you will find it rewarding.

585.

Mr Maye: We will run through the issues, set out in the Minister's letter of 2 October, which were originally raised by the Committee four weeks ago. We will stop whenever you see fit to ask questions or if you want clarification. We will then move on to the points, primarily of clarification, that were raised two weeks ago.

586.

Mr Small: The Minister's letter addressed four issues raised by the Committee on 5 September. On two of those issues, the Minister intends to put proposals forward to the Executive Committee and the Secretary of State. On the other two issues, he explains in the letter why he feels unable to accept the recommendations of the Committee.

587.

I will deal first with the issues on which the Minister accepts and empathises with the Committee's views.

588.

First, the Minister agrees that the proposed levels of fines under clauses 1, 2 and 8 of the Bill should be increased from level 3 on the standard scale (£1,000) to the maximum of the standard scale (£5,000). There is logic in that. The Minister will suggest that to the Executive Committee. His view is that the kind of increase proposed is consistent with the earlier proposal to increase the maximum level of fine available in the Magistrate's Court from £20,000 to £30,000. To ensure consistency with other provisions in the Planning Order (Northern Ireland) 1991, the opportunity will also be taken to increase the levels of fines available under articles 22 and 66 of that Order. There is a similar rationale for increasing those from level 3 on the standard scale to the maximum of the scale.

589.

Secondly, the Committee asked whether the proposed custodial sentences in the Bill for offences relating to listed building consent could be extended to other offences in the Bill. The Minister empathises with that proposal; such a change would send a clear message to those who seek to breach planning control. He intends to send papers on that to the Executive Committee and the Secretary of State. On both of those issues, the Minister agrees with the Committee's recommendations.

590.

Two further issues were raised. The first was to do with stop notices. The Committee will recall that the essential point was whether such notices ought to take immediate effect. The provisions, as drafted, allow stop notices to take immediate effect whenever the Department so determines. The Committee's view was that it should happen automatically. The Minister has considered the issues raised by the Committee but believes that the provisions as currently drafted are appropriate. There are a number of reasons for that.

591.

The first reason is that stop notices are only one of a number of powers available to the Department to stop activity. The Committee will be aware that clause 3 provides the Department with new express powers to seek court injunctions to stop unauthorised activity. The Department already has substantial powers through that process.

592.

The second point is that we are concerned about the possible implications of stop notices taking immediate effect in every situation. The main concern is that it may simply be impossible for developers to make safe unstable structures or buildings that are unsafe or unstable. There are serious potential dangers. The Committee suggested that we make provision for circumstances like that, under which we could specify that the stop notice would not take immediate effect. Our concern is that it would be virtually impossible for the Department to make those judgements with absolute confidence and certainty. Getting it wrong could have serious implications.

593.

The Minister's view is that clause 9 gives the Department the power to make a stop notice take immediate effect in cases where, for example, we think that an activity is causing serious environmental damage and should be stopped immediately, and where we can be absolutely confident that there are no dangers associated with doing that.

594.

Finally, the new powers to better enforce stop notices are worth mentioning. The Bill sets out a range of new powers, including higher fines, the proposed new offence of unauthorised activity, and the proposed custodial sentences. That is an important point. Part of the Committee's concern, I think, is that even where a stop notice or enforcement notice takes effect, the unauthorised activity often continues. The Chairperson made that point at the last meeting. Our view is that the new powers in the Bill will allow us to change that situation. Where a stop notice takes effect, whether it does so within a day or immediately, it will take effect in an appropriate manner. Where it does not, we will use the significant new powers in the Bill to enforce it.

595.

The other point raised was in relation to the protection of trees. Again, the Minister empathises with the Committee's view that there may be other circumstances in which we ought to be able to apply protection to trees, outside the very specific circumstances of tree preservation orders (TPOs). We discussed at the last meeting our concerns about blanket protection, and I think that the Committee accepted that there were reasons why that was not appropriate.

596.

Nevertheless, the Minister accepts the Committee's view and agrees with the Committee's proposal that we should look further at finding some other means of extending control. He has asked officials to liaise with departmental solicitors, and we are doing that at the moment. We have asked for their views on a possible model that would give the Minister some discretion through which he could extend TPO-type control to specified locations or specified circumstances. We are awaiting legal advice on that point. The Minister accepts the Committee's views, and we are taking the matter forward.

597.

The Chairperson: The first two issues, on which the Minister has accepted our views, we will take as read. I am sure that Members will want to comment on the other two issues.

598.

Mr Molloy: With regard to stop notices, I think that wording could be inserted that would mean that notices would have to be implemented, but with due care given to the protection of the building. I do not think that someone in the middle of taking down a building would be told to stop and would have to leave it in an unsafe condition. The legal people could put together a wording that would ensure that it had to be made safe, but also that the stop notice would have to take effect.

599.

Mrs Carson: I am concerned about the tree preservation orders. It is still a bit woolly. I am concerned that the maximum fine for an offence under the relevant clauses is only level 3, or £1,000. That is not very much. Only yesterday I received letters from people who were concerned about trees being taken down by the Roads Service. We need to tighten up, because once the tree is down, it is gone. We should have a higher level of fine.

600.

Mr Small: That is one of the fines that we intend to increase in the context of the suggestion put forward by the Committee. There are two levels of fines that can be applied in relation to trees. There is one level where damage is done to the tree that is not likely to kill the tree. The level of fine for that, we propose, will be increased to £5,000. In cases where a tree is removed or felled unlawfully, the level of fine in the Magistrate's Court will be increased to £30,000, subject to the agreement of the Executive. In the Crown Court, the level of fine that can be imposed will be unlimited.

601.

Mrs Carson: It sounds good, and I hope it works, because £30,000 is not much to a large developer. If one or two trees are putting a development at risk, £30,000 or £60,000 can be written off. I am still concerned.

602.

Mr Small: The other relevant provision in the Bill is that, where trees are removed unlawfully in breach of a tree preservation order, they must be replaced. That will be an automatic requirement. It will not free the site for development. The developer may still face the £30,000 fine - or higher, if we take it through the Crown Court - and he will have no development with which to recover that loss.

603.

Mrs Carson: How are we going to encourage more people to take out tree preservation orders?

604.

Mr Small: Tree preservation orders are a matter for the Department. It is for the Department to determine where it is appropriate to place TPOs and to establish some sort of programme for doing so.

605.

Mr Maye: One thing that we are doing, as we have reported to the Committee before, is to conduct a survey of all woodland in Belfast, under the Forest of Belfast initiative. That will lead to recommendations. We would like to replicate that in other parts of Northern Ireland. In the meantime, when an individual or a community group comes to us with a request for a TPO to be put on land, we look very seriously at that. When planning applications are submitted, if there are already trees on the land our own planning officers will often request the imposition of a TPO. We take that very seriously.

606.

The combination of those three approaches should help us to better protect trees as a whole, but the issue that the Minister has asked us to look at is whether we can put a mechanism into this Bill to allow him to protect classes of trees in certain circumstances, such as within the curtilage of a listed building or in an area of townscape character. That is what he wants us to explore, because it would give him great flexibility. We could protect particular classes of trees, rather than looking at individual stands of trees on an individual basis, which is essentially what we are doing at the moment and which is not satisfactory. It means that we have to look at each in a particular way, and that is labour intensive. If we can protect classes by a legislative mechanism, then that is much easier to administer and police.

607.

Mrs Carson: Thank you, I look forward to that.

608.

Mr Poots: In relation to the stop notices, you indicate that the three-day period is there; it could be made shorter. You also indicated the problems there could be if you had an immediate stop notice in relation to raw sewage, for example, spilling out. I think that it should be turned round so that the stop notice should take immediate effect unless there are particular reasons for it not being able to do so. It should continue for a period of up to three days in relation to, for example, raw sewage, or health and safety issues. The emphasis should be on illegal development, and in such circumstances the stop notice should be immediate. Then, if there are other considerations to be taken into account that would allow some development to take place for health and safety, or other, reasons, that should be included. The emphasis of the stop notice should be turned round in relation to the three days to sort things out, because there will be people who will use those additional three days to continue with further development.

609.

Mr Small: I think the Minister's response on that is that while we accept the reasons for the proposal the Committee makes, we would like to reserve the discretion relating to when the Department feels it is appropriate to make a stop notice take immediate effect - because there will be circumstances where an activity has to stop immediately, and we will specify through the planning policy statement the kind of circumstances where we feel that will be the case, and in those cases we will make it take immediate effect. Our concern still revolves around a situation where if a stop notice were to take effect in every single case unless the Department specified that it was not going to, the onus would then fall on the Department to determine in a very accurate way in every single circumstance where there was some potential danger, either for health and safety reasons or some other danger that we may not have foreseen. Where that happens, and where we fail to foresee that danger, and something awful does happen, the responsibility and liability for that will fall to the Department. However, that is not to say that where an activity is being carried out which we feel must stop immediately that we will not use a stop notice. We will make a judgement on a case-by-case basis depending on the individual circumstances, and that will probably involve inspecting the site in each case. We also will retain the clause 3 power of injunction where some major unauthorised piece of development is taking place and where we can, through a court injunction, have the activity stopped immediately. Our view is that the power is there to allow us to do it; we simply want to retain some discretion in how we do it, rather than have our hands tied through an automatic requirement.

610.

Mr Ford: First, on tree preservation orders, I do not see anything in the Minister's letter which refers to a point that I have made previously about the issue of the preservation of the habitat around the trees rather than merely single trees on their own - something that does not yet appear to be addressed in any part of the UK, but there is no reason why we should not be first. But on a more substantive point, the fourth page of the Minister's letter has a long paragraph which starts: "Clause 9, therefore". It forms the basis of what Mr Small has just said in relation to whether or not we go for immediate implementation or the three-day delay. It seems to me that the implications of the references in the Minister's letter to cost benefit and assessment on foreseeable costs and so on gives the impression that you will only consider in a minority of cases acting early if the stop notice takes effect from three days. Surely if the matter is being considered properly, that sort of assessment needs to be carried out in any case? Therefore, it seems to me that it can as easily be carried out to determine whether it does not need to come into operation, as to whether it does. The only alternative implication is that you are not actually going to be seriously considering whether a stop notice should take place immediately, because that is the only circumstance in which you would not be doing that assessment anyway.

611.

Mr Small: I think that those kinds of assessments - for example, the cost-benefit analysis that you mentioned - will have to be carried out in every single case, no matter whether it takes immediate effect or takes effect within a day or two days. The other factor that we are just uncertain about is the potential danger that we may not have foreseen, or the potential damage that may result which we had not foreseen, and where liability for getting that wrong will transfer to the Department. Although we can anticipate the kind of health and safety situations that might arise, such as an unstable piece of structure, where we can see easily that matters need to be put right before the stop notice takes effect, there might also be circumstances that we cannot anticipate or foresee, and where we will get it wrong. By requiring a stop notice to take effect immediately, or by requiring the developer to lift his machinery and take it off site, there may be some consequence that we had not anticipated. It is situations such as that that we simply do not want to tie our hands on.

612.

Mr Ford: Is that not dealt with by the point that Mr Molloy made at the beginning of this discussion - that it should be possible to phrase the requirements in such a way as to provide for matters which need to be completed for urgent health and safety considerations or whatever? I am not a lawyer, but I am sure that your lawyers could come up with wording to cover that.

613.

The Chairperson: Although it is true that there may be circumstances which you have not perceived, and, therefore, by having it before the three days you would be leaving the Department open to problems, it can also be turned the other way round. Say, for example, you give three days, and you do not perceive the situation to be dangerous. Is that not leaving yourselves open?

614.

Mr Small: Three days would be regarded as a reasonable period for a contractor or developer to make a site safe.

615.

The Chairperson: It could be three days in which a contractor could do an awful lot of further damage. Most of the people sitting round this table know fine well what happens, for example, when trees are being taken away. It starts about 4·00 am and by the afternoon it is nearly all over. Therefore, in those three days, all the damage can be done.

616.

Mr Maye: Issues have been raised this morning which we should take away and look at seriously. There is a germ of an idea in my head that we could reverse the presumption but build in a statutory defence which would enable a developer to do whatever was necessary to make the site safe, at the same time as complying with the notice. There is an issue there for us to look at, and we will do so.

617.

The Chairperson: That is exactly what we were saying at the previous meeting, and the Minister refers to that in his letter. He states:

"The Committee's view was that a Stop Notice should always have immediate effect unless there were specific reasons, i.e., health and safety, why it should not have immediate effect."

618.

That is really what we are talking about; but we need to get wording that reflects that position.

619.

Mrs Nelis: It has been mentioned that where very serious breaches of planning control occur, the Department has recourse to an injunction or restraining order from the courts. However, that is wide open to interpretation. What would constitute a serious breach of planning control? Why cannot that be dealt with under the stop notice rather than have to avail of the court's intervention? That point is not very clear. Secondly - and I understand the Department's protecting its back in respect of an appeal - it is possible that developers or landowners could simply remove the trees from the site before they even submit a planning application. Were that to be proven when their planning application is submitted, how would the Department propose that the planners should deal with that application? Would there be any sanctions on a developer where it is proven that he has cleared the site of the trees or whatever?

620.

Mr Maye: The reason we think it is necessary to have an express power to apply to the court for an injunction is that an injunction, by its very nature, brings very stiff penalties if it is not adhered to by the person against whom it is taken - much stiffer than the penalties that are available to the court or to the Department in relation to a stop notice.

621.

Last year, there was a case in which the Department was in the process of applying to the Attorney-General for an injunction against activity at Bishops Court racetrack. In that case, the bank intervened, took possession of the racetrack and sold it. The case illustrates that the Department is occasionally prepared to seek an injunction. In that case, the Department did not have to pursue it because the bank intervened and effectively took the decision out of its hands. An injunction brings stiff penalties, because if a person does not comply with its terms, he or she is in contempt of court. Therefore, the court can deal with that person in whatever way it likes. It brings with it the potential for a much stiffer penalty against developers and others.

622.

Mr Small: The Committee raised the point that the removal of trees on a development site should be made unlawful. The Department's view is that that would be most effective when an application has been made. The legislation could be framed so that when an application has been made and the development site is cleared, the removal of trees after that would be unlawful. That might be possible.

623.

However, the Department's point is that, potentially, there is an easy way around that for the developer. The trees could be removed before the site becomes the subject of an advocation, and becomes a development site. The only way to deal with that would be with some kind of blanket control, which the Department has discussed in the past. The Department is considering options that would allow the Minister to specify circumstances or categories of trees for which special protection would be possible. The Department is not yet sure whether that would address that kind of situation. However, it is seeking legal advice on how far it could apply such a power.

624.

Mrs Nelis: Unless the legislative framework indicates that the Department is prepared to deal strongly and seriously with developers who have cleared sites in advance of submitting planning applications, developers will continue to do so. I want to establish whether, if it were proven that a developer had been cute enough to clear a site and submit a planning application six months later, there is some mechanism that planners could use to deal with that.

625.

Mr Small: The Department's concern is how it could frame a provision that would have that effect. It has sought advice from its legal advisers on how that might be achieved, and on how it might operate.

626.

Mr Maye: The Department and the Minister are trying to find a compromise that does not necessarily affect all Northern Ireland but applies to those parts that have, for example, listed buildings or areas of townscape character. The Minister might want to add other categories, which will allow the Bill to provide the same protection for those areas as that which is provided for a conservation area. That would make life much easier for the Department and for the public, because it would mean that whole areas or the curtilage of listed buildings might be protected in the same way as conservation areas. The Department would be better able to decide which areas are worth protecting.

627.

At present that is a cumbersome process, because the Department must examine individual trees and stands of trees. It must ask arboriculturalists to prepare a report. It must also ask landscape architects to examine the amenity value of the stand of trees. If the Department can find a method that allows the Minister to protect trees by categorising areas, such as areas that surround listed buildings, and so on, I believe that that will go some way towards what the Committee wants to achieve.

628.

The Chairperson: You mentioned the curtilage of listed buildings. Can you explain what is meant by the Department's comments about clause 23, which deals with trees? There is

"currently nothing to prevent Department from putting a TPO on trees within the curtilage of a listed building. It is not possible to give automatic protection to trees within the curtilage of a listed building due to legal difficulties in defining what curtilage is."

629.

Mr Small: Legal advice has suggested that it would be difficult for the Department to define the curtilage of a listed building in statute. Although it is not impossible, the Department was advised against it.

630.

The Chairperson: The Department has said that there is nothing to prevent it from doing that. However, it goes on to say that it is not possible to give automatic protection.

631.

Mr Small: The Department can examine the grounds or curtilage of a listed building, and it can specify protection for individual trees. However, before universal, automatic protection to trees in the curtilage of a listed building can be provided, a statutory definition of curtilage must be developed, so that the blanket control can apply in every case. Legal advice suggests that that would be difficult.

632.

Mr Maye: The Department is trying to think of a way round that difficulty, so that it can provide protection within the curtilage of listed buildings by another means. It is exploring with its legal advisers possibilities that would avoid the need to define curtilage in law, which is the principal problem. If that can be achieved, the Department can develop proposals, which the Committee would welcome, and which would be relatively easy for the Department to implement.

633.

The Chairperson: Did you deal with Mr Ford's point?

634.

Mr Ford: No. Not yet.

635.

The Chairperson: When do you intend to do that?

636.

Mr Maye: We will come back for the next meeting.

637.

Mr Molloy: On some sites where there was a difficulty about removing trees, the contractors did not remove them, but they undermined them by cutting the roots, and the trees soon had to be removed. That sort of case demonstrates the need for legislation that requires individuals to seek permission before removing any trees. That should apply in the rural community or on any new development. A judgement can be made on each application, and, if the individual does not apply for permission, he or she will be acting illegally.

638.

Mr Maye: The Department does not want to make life hard for the farmers and individual householders who may be affected by that sort of blanket protection. The Department is trying to reach a compromise that allows it to protect trees that merit protection - for example, in areas of townscape character, such as a village of listed buildings - without applying blanket protection. Blanket protection brings with it regulation, and regulation brings with it a burden on individual householders and farmers, which the Department is keen to avoid.

639.

The administration of such a system would be a burden on the Department. It is keen to avoid creating difficulties for farmers, because that sort of blanket regulation would hit them hardest. However, householders would also be hit every time they wanted to crop or prune trees in their back gardens.

640.

The Chairperson: You said that the Department would consider its response to that point and to the previous point about stop notices, and it will try to find a solution.

641.

Mr Armstrong: The age of the tree must be considered, because if it were to die soon naturally, there is no onus on anyone to preserve it.

642.

The Chairperson: Is it not the case that a tree that is threatened with decay can be removed?

643.

Mr Small: Yes. There is a provision to deal with that.

644.

Mr Maye: It applies also to trees in conservation areas, or whatever areas the Department brings under control.

645.

The Chairperson: The Committee will move on to the next part of the presentation.

646.

Mr Lambe: I would like to go through the issues that were raised at our meeting two weeks ago. The first issue concerned the proposed power to allow the Planning Appeals Commission to dismiss appeals in cases of undue delay. The Committee asked whether the Department could obtain some figures on that from the other Administrations.

647.

I contacted colleagues in the Office of the Deputy Prime Minister and in the Scottish Office. They told me that the figures are not readily available. Their understanding from the Planning Inspectorate and the Scottish Reporters Unit is that the figures are so small that they are not recorded separately. It was a question of fractions of a percentage of the overall number of appeals.

648.

The cases are subsumed into the category of withdrawn appeals. Often the appellant withdraws the appeal, rather than have a dismissal of an appeal on his planning record. Often it is thought that having a dismissed appeal on the record will prejudice any future application or appeal. Is the Committee content with that information, or does it want further clarification from the other Administrations? I am happy to go back to them.

649.

Mr Small: The outcome of our discussions was that the power is very rarely used. Other Administrations do not consider it to be essential to business. That supports the views expressed by the chief commissioner of the Planning Appeals Commission. He said that he does not see the need for the provision, because he does not need that power. Discussions with colleagues in other jurisdictions seem to support that. Although the power exists in England, Wales and Scotland, it is not often used. Rather than make a provision in the Bill that may not be needed, the Department will take up the chief commissioner's suggestion and remove the clause, if the Committee is content.

650.

The Chairperson: The Committee will refer clause 19 for further consideration and take a look at the Department's response. If you have any further information on that, please let the Committee have it, because it is important.

651.

Mr Maye: The other side of the coin is that, although the power is rarely used, it is used in a small number of cases. The Committee might want to bear that in mind. The Bill would provide a discretionary power, which the Planning Appeals Commission could use if it sees fit. It is up to the Planning Appeals Commission to make that decision.

652.

The Chairperson: On the one hand, we can leave the provision in the Bill - just in case it is needed. On the other hand, the Planning Appeals Commission said that it was not necessary.

653.

Mr Maye: The Department is happy to do whatever the Committee thinks is most appropriate.

654.

The Chairperson: The Committee needs time to think about it before it makes a final decision. Members should examine the clause carefully and we would be grateful for further information.

655.

Mr Lambe: The second issue that was raised concerned the statutory definition of "curtilage". I obtained a copy of the legal advice that was given to the Department, which I can give to the Committee. Perhaps the Committee will want its own legal advisers to give a second opinion on it.

656.

The third issue concerned the building preservation notice that is known as "spot listing". The Department was asked who would determine cases of disputed claims for compensation. The matter would be dealt with in accordance with the way in which the Department deals with claims for compensation in relation to tree preservation orders, where it has refused consent to fell or remove a tree. Applicants would submit their claims for compensation, and the Department would assess them using the services of the Valuation and Lands Agency. If the Department cannot negotiate or arbitrate a dispute, the case would be referred to the Lands Tribunal, which would have a final say in the amount of compensation that would be payable.

657.

Another point was raised about tree preservation orders compensation. The query concerned the amount of money that had been submitted to the Department in relation to claims for compensation as a result of refusal of consent to fell trees. There are currently two cases, both of which are with the Lands Tribunal awaiting hearing. One involves a firm known as Russell Brothers and has a value of around £100,000 in relation to loss of development value of land. I do not have the name of the developer in the other case, but it involves Edenaclogh wood, and the claim is for £90,000, comprising £40,000 in relation to loss of timber value and £50,000 in relation to loss of development value of the site. Those are the only two claims with the Department in relation to compensation. In the past there have been large payments - in the Finnebrogue case it was £300,000. One of the proposals in the Bill is that we can specify in future tree preservation orders the limitations that there will be on compensation liability. For example, we can state that the development value of the land in question will not be open for negotiation in any compensation claims.

658.

Mr Molloy: It seems that if compensation can be paid to a developer who cannot develop a site because of a tree preservation order on it, a farmer or any individual who does not get planning permission for building a house on a farm should also be able to get compensation in that situation. Is that correct?

659.

Mr Maye: In certain circumstances compensation would be payable, but not in all circumstances.

660.

The Chairperson: What circumstances?

661.

Mr Maye: I can look into that and come back to you, but we have made some payments in those sorts of circumstances.

662.

The Chairperson: It is important for us to get those details.

663.

Mr Maye: To add a gloss to what Mr Lambe has said, I looked at one stand of trees recently in Belfast, which, in all respects, was worthy of protection, but the potential compensation value for loss of development was assessed by the Valuation and Lands Agency as being £17·5 million. If we can rule that out through the Bill, so that compensation is payable, we would have no hesitation in protecting such a stand of trees, but at the moment there is a difficult judgement to be made when sums of that nature have to be balanced as part of the equation.

664.

Mr Lambe: Another point was raised in relation to clause 27, which extends the Department's grant-aiding powers. The point was made that the clause as drafted would not appear to extend the power to provide grant aid for bodies such as Planning Aid. At the time we undertook to look at that further. Clause 27 extents an existing power to grant-aid certain bodies under article 120 of the Planning (Northern Ireland) Order 1991. The Department has existing powers under that article to grant-aid such bodies as Planning Aid, and that is the power that we are currently using. The purpose and intention of clause 27 was to regularise a position whereby the Department was making payments on an extra- statutory basis to bodies such as building preservation trusts. The opportunity was being taken to regularise the position by making those payments statutory. It would be a normal requirement from the Department of Finance and Personnel to regularise in statute the grant-aiding powers as soon as it is practicable to do so.

665.

The Chairperson: Under which article do grants, including grants to Planning Aid, come?

666.

Mr Lambe: They are currently covered under article 120 of the Planning (Northern Ireland) Order 1991, which is being amended by a provision in clause 27 of the Planning (Amendment) Bill, which is extending the grant-aiding powers of the Department.

667.

The Chairperson: But not removing the powers.

668.

Mr Lambe: No, it is simply adding to the grant- aiding powers.

669.

The final point was in relation to article 40 agreements. The Committee had some sympathy with Lisburn Borough Council, which, during the consultation return on the Bill, contended that it should have a greater role in drawing up article 40 agreements and, in particular, where an application for modification or discharge of part of the planning agreement had been submitted. Unfortunately, we are not yet in a position to get back to the Committee with a final answer. We will put papers to the Minister for a decision on that this week, and hope to return to the next Committee meeting with an answer.

670.

The Chairperson: Can you come back on clause 21 concerning advertisements?

671.

Mr Small: We have nothing specific. During our most recent presentation, we discussed the advertising provisions. The intention of the current provision in the Bill is to extend the definition of advertising. The Committee made comments about mobile advertisements on trailers, and how the Department dealt with that. We said that we were reviewing advertising, which is likely to result in either subordinate legislative change, or procedural change in the area of enforcement. It will not necessarily result in changes to primary legislation.

672.

The Chairperson: You say that it is "likely". That gives us no reassurance whatsoever. Is it coming in subordinate legislation?

673.

Mr Small: We cannot say, because we are in the middle of the work involved.

674.

The Chairperson: We were told that the Department was conducting a review of enforcing advertising control, which was possibly a matter for the next planning Bill.

675.

Mr Maye: If it would be helpful, I will bring the completed report to the Committee for consideration before decisions are taken on how to progress.

676.

The Chairperson: The Committee's question was: why not this Bill? We were told that this might be a matter for the next planning Bill, but only the Lord Himself knows when the next planning Bill will be. Surely now is the time to do something about this matter.

677.

Mr Maye: I will bring the report of the review to the Committee as soon as it is ready so that members can discuss it.

678.

The Chairperson: Have you anything further to add?

679.

Mr Small: I think we have covered all the issues that the Committee has raised.

680.

The Chairperson: We have a letter from Friends of the Earth on the subject of third-party appeals. We will let you have a copy of that. We wish Mr Small well in his new brief. Thank you.