Annex 1 - Letter dated 7 June 2001 from the Department of the Environment including -
March 1999 Consultation Paper; and Summary Analysis of Consultation Responses.

Annex 2 - Letter dated 13 September 2001 from the Committee for the Environment.

Annex 3 - Letter dated 19 September 2001 from the Minister of the Environment.

Annex 4 - Letter dated 18 December 2001 from the Minister of the Environment including -
Planning (Amendment) Bill - Position Paper.

Annex 5 - Letter dated 12 February 2002 from the Department of the Environment including -
Memorandum to the Committee on Policy Proposals.

Annex 6 - Letter dated 22 February 2002 from the Committee for the Environment.

Annex 7 - Letter dated 17 April 2001 from the Minister of the Environment.

Annex 8 - Letter dated 26 April 2002 from the Committee for the Environment.

Annex 9 - Letter dated 30 April from the Department of the Environment including - Annex on Breach of Conditions Notice etc; and Copies of the responses to the Consultation Paper.

Annex 10 - Letter dated 23 May 2002 from the Department of the Environment including - Draft Planning (Amendment) Bill; Letter dated 21 May 2002 from the Department to the Secretary of State for Northern Ireland; and Draft Explanatory and Financial Memorandum.

Annex 11 - Letter dated 13 June 2002 from the Committee for the Environment to consultees.

Annex 12 - Hansard report of 24 June 2002: Second Stage Reading.

Annex 13 - Letter dated 24 June 2002 from the Minister of the Environment including - Three Policy Papers.

Annex 14 - Letter dated 24 June 2002 from the Department of the Environment including - Summary of QUB research findings on Third Party Appeals; and Summary of QUB research findings on the creation of a new offence for unauthorised development.

Annex 15 - Speaking Notes dated 4 July 2002 from Departmental Officials.

Annex 16 - Letter dated 9 July 2002 from the Committee for the Environment.

Annex 17 - Letter dated 24 July 2002 from the Department of the Environment including - Analysis of responses to Committee consultations; and The Department's consideration of the responses to its March 1999 consultation exercise.

Annex 18 - Presentation dated 5 September 2002 from Departmental Officials.

Annex 19 - Letter dated 11 September 2002 from the Department of the Environment.

Annex 20 - Letter dated 2 October 2002 from the Minister of the Environment.

Annex 21 - Letter dated 3 October 2002 from Friends of the Earth.

Annex 22 - Letter dated 9 October 2002 from the Minister of the Environment to the Secretary of State.

Annex 23 - Letter dated 10 October 2002 from the Minister of the Environment.

Annex 24 - Letter dated 10 October 2002 from Belfast Metropolitan Residents' Group.

7 June 2001

You may remember that we discussed this at our meeting on 23 May and I indicated that the Department would like to deliver a presentation to the Environment Committee, before the summer recess, on the proposed Planning (Amendment) Bill, and the anticipated timetable for its introduction. At that stage we had provisionally considered the possibility of delivering a presentation at the Committee's meeting on 21 June. The purpose of the presentation, at this early stage, is to explain the background to, and provide a brief overview of, the proposals contained in the Bill.

In March 1999, the Department issued a consultation paper entitled "Proposals for Amendments to Planning Legislation in Northern Ireland" (copy attached). This followed the then Government's acceptance of recommendations by the Northern Ireland Affairs Committee, that Northern Ireland's planning legislation should be amended along the lines of the Planning and Compensation Act 1991 in the rest of the UK. A summary of the consultation responses is also attached for information.

The Bill contains a number of measures aimed at strengthening existing planning enforcement powers. These measures would also extend to Tree Preservation Orders, Listed Buildings and Buildings in a Conservation Area and to Hazardous Substances. Powers are also proposed to give primacy to Development Plans in the determination of planning applications, and to clarify the law in respect of demolition of buildings. Finally, it is proposed to introduce powers to provide the Planning Appeals Commission with greater flexibility in dealing with appeals, hearings and inquiries.

The proposed timetable for the Bill, which is still subject to Executive Committee approval, envisages the submission of a Policy Memorandum to the Executive in January 2002. Following the drafting of detailed instructions, the Bill would be introduced to the Assembly in early June, with the second stage debate being held in late June 2002. The Bill would then be passed to the Environment Committee for consideration in October 2002, with further consideration stage and final consideration stage taking place in January and February 2003 respectively. Finally, it is anticipated that Royal Assent could be obtained in April 2003, with the Bill coming into operation in July 2003.

While the proposed timetable is challenging, the Department is confident that it can be met. However, there is a risk if the provisions in the Bill are extended beyond the terms of the original consultation paper, it will necessitate a further round of public consultation, resulting in slippage of some 3 or 4 months in the proposed timetable. We would therefore be seeking the Committee's views on and support for the Bill's early introduction.

As our policy proposals develop, it is further intended that this presentation should be followed by more detailed presentations on the specific proposals contained in the Bill.

If anything should require clarification or if you should require any further information please do not hesitate to contact me.

LESLEY ROONEY
Assembly Liaison Officer

March 1999

1. This paper invites comments on the government's proposals for amendments to planning legislation in Northern Ireland.

2. In it's report on "The Planning System in Northern Ireland", the Northern Ireland Affairs Committee recommended that, as in GB, legislation should be introduced to strengthen existing enforcement powers and to give primacy to development plans in the determination of planning applications. The Government accepted these recommendations and is seeking to introduce this legislation at the earliest opportunity. An opportunity is also being taken to introduce some other provisions to strengthen and improve the planning system in Northern Ireland.

3. Annex A to this paper provides details of the proposals. Most of the proposals replicate provisions from existing statutes in England and Wales; these are contained in the following Acts:

• The Town and Country Planning Act 1990;
• The Planning (Listed Buildings and Conservation Areas) Act 1990;
• The Hazardous Substances Act 1990; and,
• The Planning and Compensation Act 1991.

4. The Government would welcome comments on the proposals set out in this paper.

These should be addressed to:

Mr D Small
Department of the Environment for Northern Ireland
Planning Service Headquarters
Clarence Court
10 - 18 Adelaide Street
Belfast
BT2 8GB
Tel: 028 9054 0832 Fax: 028 9054 0665

or, we can be contacted by email at: David.Small@doeni.gov.uk

to arrive no later than 30 November 2001.

Respondents should indicate if they wish their replies to be treated as "in confidence" to the Department of the Environment (the Department). If so they will not be published or made available to the media, but may be counted in any numerical summary of the views received, without specifically identifying the organisations or persons involved.

1.1 Contravention Notice

(a) The purpose of a contravention notice would be not only to strengthen the power to obtain information prior to taking enforcement action, but also to encourage dialogue with any persons thought to be in breach of planning control, and to secure their co-operation to take corrective action. A person on whom a notice is served may be provided with an opportunity to make representations about any suspected breach, make an offer to refrain from carrying out operations or activities, undertake remedial works or seek retrospective planning permission.

(b) It would be an offence, liable on summary conviction, to a fine not exceeding level 5 on the standard scale (currently £5,000) not to comply with a notice within 21 days of the time of its being served. Failure to comply with a notice could also affect any future entitlement to compensation payable in connection with stop notices (see paragraph 1.9). As information only is required, there would be no right of appeal.

1.2 Breach of Condition Notice

The purpose of a breach of condition notice would be to streamline the enforcement procedure for breaches of conditions attached to a planning permission. It may be served where there is clear evidence that a planning condition has not been observed and, if a notice is not complied with within a set time, it shall be an offence, liable on summary convection to a fine not exceeding level 3 on the standard scale (currently £1,000). As non-compliance with a condition is regarded as a straightforward matter, there would be no right of appeal.

1.3 Injunctions

It is proposed that the Department is given an express power to apply to the High Court for an injunction to prevent any actual or threatened breach of planning control. The Department can already seek an injunction, but it is granted only in exceptional circumstances, where other means have been exhausted and not normally for threatened breaches. This would integrate injunctions into the range of enforcement powers available to the Department and they may be used whether or not other enforcement powers have been used or are intended to be used. An injunction may be granted against "persons unknown" where the identity of a person cannot be ascertained.

1.4 Time Limits

(a) It is proposed to change the time limits for enforcement action in respect of a breach of planning control concerning a material change of use not involving a single dwelling house. Presently, enforcement action in such cases can only be taken where it can be shown that the breach occurred on or after 26 August 1974 - all such breaches before this date are immune from enforcement action.

(b) It is proposed that the cut-off date of 26 August 1974 should be abolished and replaced with a rolling 10-year qualifying period. This would mean that no enforcement action may be taken after the end of the period of 10 years beginning with the date of the breach.

(c) As a strengthening measure, it is also proposed that the period of 4 years, after which immunity is granted for a breach of condition of a planning permission not involving a change of use of any building to use as a single dwelling house, should be replaced with a rolling 10-year qualifying period. A breach of condition preventing change of use to use as a single dwelling house will retain the 4-year immunity period.

1.5 Enforcement Notice

It is intended to reduce the legal complexity of the provisions applying to the drafting, issue and service of enforcement notices, thus minimising the possibility of their being quashed because of some minor drafting error, or legal or technical deficiency. The provisions would provide the Department with flexibility to require only partial remedy of a breach of planning control where a total remedy is not considered necessary at the time of enforcement. The notice would still have to be sufficiently clear to enable any recipient to understand exactly what is alleged to have been done and what is required to remedy it. Provision is also to be made for the first time for the variation or withdrawal of a notice after it has come into effect, or for an extension of the period for complying with it.

1.6 Appeal against Enforcement Notice

(a) The grounds for appealing against an enforcement notice are to be clarified and extended to include the new immunity provisions described at paragraph 1.4. The time restrictions for making an appeal are also to be made more flexible. At present an appeal must be received by the Planning Appeals Commission before the specified date, resulting at times in disputes over postal delay - it is proposed that the time requirement will be satisfied if it can be shown that the application was properly posted to meet the deadline, and that any postal delay is outside the applicant's control.

(b) Currently, where the grounds for appeal are that planning permission ought to be granted, resulting in a deemed planning application being made, if no fee is attached to the application, permission is not granted, although the appeal may be upheld. This is to prevent a person from short cutting the normal planning application procedure and avoiding having to pay an application fee. However, this produces a stalemate in that the enforcement notice is quashed but there is no opportunity to regularise the development, possibly with conditions, thus making any further enforcement action futile. It is proposed that any appeal under this ground and the resulting deemed planning application will lapse if the proper fee is not paid within a specified time.

1.7 Execution of Works

The power of the Department to enter land and carry out works to ensure compliance with an Enforcement Notice is to be strengthened. Presently, the power does not extend to ensuring compliance with the terms of a planning permission, removing or alleviating any injury to amenity or to a discontinuance of use. It is proposed that these restrictions are removed. It is also proposed that it shall be an offence to wilfully obstruct anyone authorised to carry out works, punishable on summary conviction to a fine not exceeding level 3 on the standard scale (currently £1,000).

1.8 Offence for Non-Compliance with an Enforcement Notice

(a) It is intended to strengthen and clarify existing provisions concerning offences for not complying with an enforcement notice. Currently, it is the person who owned the land at the time an enforcement notice was served who is primarily responsible for complying with the notice; if that person has subsequently sold the land, he shall, on any complaint being made, be able to have the current owner brought before the courts to answer the complaint. This is cumbersome and it is proposed that the current owner of the land should have primary responsibility for complying with an enforcement notice, although a notice may also be served on anyone with control of, or an interest in the land, and it shall also be an offence for that person not to comply with its directions.

(b) To avoid the situation whereby a person is not deterred by the financial penalties imposed by the courts for breaching an enforcement notice, perhaps because of the level of profits involved in continuing with his actions, it is proposed to increase the maximum level of fine, on summary conviction, from £5,000 to £20,000, and to allow for the first time for this type of offence for a person to be convicted on indictment. The courts when determining the level of fine, shall in particular, have regard to any financial benefit which has accrued or appears likely to be accrued in consequence of the offence. It is also to be made clear that a person found guilty of an offence, and who continues not to comply with a notice, may be guilty of a further offence, and subsequently, of still further offences until there is compliance with a notice.

1.9 Stop Notices

(a) Provisions are to be introduced to strengthen and clarify existing stop notice provisions. The current situation whereby a stop notice cannot take effect until a least 3 days after it is served is unsatisfactory where urgent action is required. It is proposed that where there are urgent reasons, the stop notice may take effect within a period less than the normal 3 days.

(b) To fall in line with the increased penalties for contravening an enforcement notice, it is proposed that the maximum level of fine, on summary conviction, for contravening a stop notice shall be increased from £5,000 to £20,000, and to allow for the first time for this type of offence, for a person to be convicted on indictment. The courts shall take account of any benefits accrued or which appear likely to accrue as a result of the offence and it shall be made clear that further offences may be committed until there is compliance with a notice

(c) Although compensation may be payable in certain circumstances if a stop notice is quashed or withdrawn, it is intended that no compensation will be payable in respect of any loss or damage suffered, which could have been avoided if the person had provided information required under a contravention notice (see paragraph 1.1) or any other statutory information notice.

1.10 Lawful Use Certificate

(a) It is proposed to rectify the unsatisfactory situation whereby a development may be classified as "unlawful but immune". This happens when enforcement action cannot be taken against a breach of planning control because the time period for doing so has elapsed. The relevant period in cases of operational development is 4 years from the time action is being considered, and in cases of change of use not involving a single dwelling-house, the development is immune if it took place before the 26 August 1974. This state of "limbo" can lead to practical and legal difficulties.

(b) Under the new proposals a person would be able to apply to the Department for a lawful use certificate which would state that an existing use of buildings or other land, or operational development or some activity in breach of a planning condition is lawful, or would be lawful in the case of a proposed use or operational development. A certificate would be granted if no enforcement action could be taken either because no development was involved, or no planning permission was required, or the time for enforcement action had expired - this time would include the revised 4 and 10 year immunity periods described at paragraph 1.4.

(c) The onus for producing sufficient evidence to warrant the granting of a certificate would rest firmly on the applicant; there would be a right of appeal for a refusal; it would be an offence to provide misleading information knowingly or recklessly; and, the certificate would confer the same rights as a planning permission allowing a change from one use to another within any of the classes in the Use Classes Order. A charge would be raised for this service.

1.11 Rights of Entry for Enforcement Purposes

(a) It is proposed to strengthen existing rights of entry powers for enforcement purposes which, currently, can only be exercised when it is intended to issue an enforcement or stop notice. The power to enter may be exercised for investigative purposes connected with enforcement provisions; however, entry may only be gained if there are reasonable grounds.

(b) The purpose must be to ascertain if there has been any breach of planning control, or to determine if any enforcement action should be taken, how this power should be exercised or if there has been compliance with enforcement action already taken. In addition, it is proposed that a warrant may be issued by a Justice of the Peace to gain entry if admission is refused or is likely to be refused or in the case of urgency. It would be an offence to wilfully obstruct entry, liable on summary conviction, to a fine not exceeding level 3 on the standard scale (currently £1,000). Existing safeguards of being required to produce evidence of authority to enter the land and of being liable for compensation for damage caused, would remain.

2.1 Planning Obligations

Planning obligations would replace planning agreements and, although their purpose would remain largely the same, i.e., to allow a developer to enter into an agreement with the Department to develop the land as part of a planning permission, their powers would be more widely drawn, thus placing less restrictions on their use. For example, an obligation may be used where a developer in seeking to overcome an objection to an application on nature conservation grounds, undertakes to establish on a different site, a nature reserve or other conservation benefits. Powers would also be introduced to allow a developer, after 5 years, to apply to the Department to have an obligation discharged or modified and to appeal on refusal to the Planning Appeals Commission. Like existing agreements, obligations would be enforced by the Department using statutory enforcement powers. The existing power to apply to the NI Lands Tribunal to have a planning agreement discharged or modified would not, therefore, apply to planning obligations.

2.2 Demolition of Buildings

It is proposed that demolition of buildings comes within the meaning of development for the purposes of requiring planning permission. The question of when demolition is to be regarded as development for planning purposes is complicated and has resulted in substantial case law. This has not, however, resolved the problem and the purpose of this provision is to make it clear that demolition is to be regarded as development with exceptions to be prescribed by development order. It is proposed that only those buildings whose demolition currently requires planning permission, i.e., listed buildings and buildings in a Conservation Area etc., should for the meantime be subject to the new regime.

2.3 Advertisements

It is proposed that the definition of "advertisement" is amended to make it clear that certain modern forms of outdoor advertising (e.g., rotating poster panels and advertisements on permanently fixed blinds or canopies on business premises) are within the definition and are thus subject to advertisement control.

2.4 Assessment of Environmental Effects

It is proposed to extend the scope of the existing requirement under EC Directive to make regulations which set out the classes of development for which an environmental assessment may be needed before a planning permission may be granted. Regulations to be made would go beyond the environmental assessment purposes required by the EC Directive. For example, in England and Wales, Regulations extended the classes of development for which an environmental assessment may be required, to include wind generators, motorway service areas and coast protection works.

2.5 Power to Decline to Determine Applications

It is intended to give the Department power to decline to determine a planning application if within the 2 years preceding the application, the Planning Appeals Commission had refused a similar application on appeal, and there has been no material change in circumstances. The purpose of this proposal is to prevent the use of 'repeat' applications as a tactic.

2.6 Dismissal of Appeal in Cases of Undue Delay

It is proposed to give the Planning Appeals Commission power to dismiss an appeal if it appears that an applicant is causing undue delay in progressing it. This is to prevent time wasting appeals and appeals lodged for tactical purposes.

3.1 It is proposed that development plans should be given prime importance in the determination of planning applications thus implementing the commitment given to the Northern Ireland Affairs Committee. Although this would give primacy to development plans when considering a planning application, it does not mean that the development plan must hold sway on every occasion. In a ruling given by the House of Lords in the case of City of Edinburgh v Secretary of State for Scotland (October 16, 1997), it was observed that the plan does not have absolute authority, that the planning authority is not required slavishly to adhere to the plan, and that it is at liberty to depart from it if material considerations indicate otherwise.

4.1 It is proposed that the enforcement powers described earlier should apply as modified to provisions concerning the protection of trees. It is intended that the offence of contravening a TPO may be tried on indictment, that the maximum fine on summary conviction is raised to £20,000, and that courts, when determining the level of fine shall, in particular, have regard to any financial gain resulting or likely to result from the offence. Powers will be sought to allow the Department to seek an injunction to prevent any operation from continuing where an offence has been or may be committed; and to obtain a warrant from a Justice of the Peace to secure rights of entry onto land where permission has been refused, or in cases of urgency.

4.2 It is also proposed to make it an automatic requirement, unless considered otherwise by the Department, to replace trees removed or destroyed which are under the protection of a TPO. At present, it is only a requirement to replace trees when it has been made a condition of a consent under a TPO. Enforcement notices may be served to ensure compliance with this requirement and there would be a right of appeal against such notice; the Department may also enter the land and execute any works not carried out and recover the costs from the owner of the land.

4.3 It is further proposed to afford the same protection to trees in a conservation area as is currently afforded to trees covered by a TPO. The Department may by Regulations provide for exceptions to this provision.

5.1 It is proposed that the enforcement powers described earlier should apply as modified to listed buildings and buildings in a conservation area. The Department intends strengthening the penalties for altering or demolishing a protected building, and a person found guilty of such an offence would be liable on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding £20,000, or both; or on conviction on indictment to imprisonment for a term not exceeding 2 years or a fine, or both. In determining the level of fine the courts will take account of any financial benefits accrued or likely to accrue as a consequence of the offence. A person may be charged with subsequent offences until there is compliance with a notice.

5.2 It is proposed to waive or relax the requirements of an enforcement notice, extend the time for complying with it or to withdraw it after it has taken effect; to include in the criteria for appealing against a decision not to grant listed building consent or a listed building enforcement notice, the ground that the building is not of special architectural or historic interest; to make it an offence to wilfully obstruct an authorised person executing works to secure enforcement; to seek an injunction to prevent any operation where an offence has been or may be committed; and to obtain a warrant from a Justice of the Peace to secure rights of entry onto land where admission has been refused, or in cases of urgency.

5.3 It is also proposed to introduce powers similar to those in England and Wales for temporary listing of buildings. This would enable the Department to serve a building preservation notice on a building of special architectural or historic interest and which is under threat of demolition or alteration; the notice would have immediate effect and would offer the same protection as if the building were listed. The notice would have to be confirmed or withdrawn within 6 months, and if not confirmed, then compensation could be payable.

6.1 It is proposed that the enforcement powers described earlier should apply as modified to the provisions controlling hazardous substances. These include powers to strengthen the penalties for contravening hazardous substances control provisions by providing for conviction on indictment, and to increase the maximum fine on summary conviction to £20,000. When determining the level of fine, the courts shall have regard to any financial benefits accrued or likely to accrue as a consequence of the offence.

6.2 The maximum fine for not complying with an enforcement notice connected with hazardous substances is also to be increased to £20,000 on summary conviction and provision will be made for conviction on indictment followed by a fine. In both instances, the courts shall, when determining the level of fine, have regard to any financial benefits accrued or likely to accrue as a consequence of the offence, and a person may be charged with subsequent offences until there is compliance with a notice.

6.3 It is also proposed to waive or relax the requirements of an enforcement notice, extend the time for complying with it or to withdraw it after it has taken effect; to make it an offence to wilfully obstruct an authorised person executing works to secure enforcement; to seek an injunction to prevent any operation where an offence has been or may be committed; and to obtain a warrant from a Justice of the Peace to secure rights of entry onto land where admission has been refused, or in cases of urgency. As some of the relevant enforcement provisions governing hazardous substances are provided for in the Planning (Hazardous Substances) Regulations (NI) 1993, and not in primary legislation, some of the proposals referred to above will be made by amendments to these Regulations.

7.1 The Planning Appeals Commission is an independent appeals body established under statute to decide a wide range of appeals and to report to the Department on various inquiries under planning and other legislation. The most senior Commissioners also make up the Water Appeals Commission. Commissioners are appointed by the First Minister/Deputy First Minister. All cases referred to the Commission must be determined by the Commission as a corporate body - this can be achieved by a quorum made up of half the Commission plus one, although all Commissioners have a statutory right to sit in on all cases.

7.2 The system described above is seen as overly bureaucratic and inflexible, leading to delays in getting onto the public inquiry programme and increased reporting times once an inquiry has been completed. Measures are proposed to provide the Commission with greater flexibility without eroding its independence or weakening its expertise.

7.3 It is proposed that:-

• the Planning Appeals Commission and Water Appeals Commission are combined, thus allowing other members of the Commission to undertake water appeals work;
• for appeal work only, decisions are to be made collectively; this would allow a minimum of 4 Commissioners to make decisions as opposed to the present requirements of half the Commission plus one, thus freeing Commissioners to deal with other casework;
• individual Commissioners hearing inquiries are to be allowed to report direct to the Department without obtaining a corporate view from the Commission; this would not prevent a Commissioner from seeking the view of colleagues, especially in the more complex cases, but it would no longer be a statutory requirement;

A "call off" panel of Commissioners is to be appointed to assist the Commission as and when required; they would be appointed for periods of 3- 5 years and would only be used at the discretion of the Chief Commissioner. Appointees would not receive a salary nor a retaining fee, but would be paid only for work carried out. This would allow the Chief Commissioner to expand the expertise of the Commission, and enhance his ability to deal with fluctuating workloads without having to increase the full-time complement of the Commission.

Planning (Amendment) Bill

[22/05/02 16:27:17]

Contents

New enforcement powers

1. Planning contravention notices [j1]
2. Enforcement of conditions [j2]
3. Injunctions [j3]

Other changes relating to enforcement

4. Time limits on enforcement action [j4]
5. Enforcement notices [j5]
6. Appeal against enforcement notice [j6]
7. Offence where enforcement notice not complied with [j8]
8. Execution of works required by enforcement notice [j7]
9. Stop notices [j9]
10. Certificate of lawful use or development [j10]
11. Rights of entry for enforcement purposes [j11]
12. Listed buildings [j18]
13. Hazardous substances [j18A]
14. Replacement of trees [j16A]

Control over development

15. Demolition [j28]
16. Reversion to previous lawful use [j27]
17. Power of Department to decline to determine applications [j14]
18. Assessment of environmental effects [j13]
19. Dismissal of appeals in cases of undue delay [j15]
20. Planning agreements [j21]

Control over particular matters

21. Advertisements [j17]
22. Building preservation notices [j22]
23. Trees [j16]

Miscellaneous

24. Status of development plans [j12]
25. Planning Appeals Commission [j110]
26. Grants for research and bursaries [j119]
27. Grants to bodies providing assistance in relation to certain development proposals [j120]
28. Planning register [j19]
29. Home loss payments following planning blight [j29]
30. Minor and consequential amendments and repeals [j24]
31. Commencement [j31]
32. Short title [j30]

Schedules:

A

B I L L

TO

Amend the law relating to planning; and for connected purposes.

E IT ENACTED by being passed by the Northern Ireland Assembly and assented to by Her Majesty as follows:

New enforcement powers

Planning contravention notices [j1]

1. In the Planning (Northern Ireland) Order 1991 (NI 11) (referred to in this Act as "the principal Order") in Part VI (enforcement) before Article 68 there is inserted¾

Enforcement of conditions [j2]

2. After Article 76 of the principal Order there is inserted¾

Injunctions [j3]

3. After Article 76A of the principal Order (as inserted by section 2 of this Act) there is inserted¾

Other changes relating to enforcement

Time limits on enforcement action [j4]

4.¾ (1) At the beginning of Part VI of the principal Order (enforcement) there is inserted¾

(2) If, in the case of any breach of planning control, the time for issuing an enforcement notice has expired, before the coming into operation of this section, by virtue of Article 68(4)(b) of the principal Order (as originally enacted), nothing in this section enables any enforcement action to be taken in respect of the breach.

Enforcement notices [j5]

5. For Article 68 of the principal Order (enforcement notices) there is substituted¾

Appeal against enforcement notice [j6]

6.¾ (1) For Article 69(3) and (4) of the principal Order (grounds of appeal and notice) there is substituted¾

(2) For Article 71 of that Order (appeal against enforcement notice - supplementary provisions relating to planning permission) there is substituted¾

Offence where enforcement notice not complied with [j8]

7. For Article 72 of the principal Order (penalties for non-compliance with enforcement notice) there is substituted¾

Execution of works required by enforcement notice [j7]

8.¾ (1) For Article 74(1) of the principal Order (power to execute works required by enforcement notice) there is substituted¾

(2) After paragraph (8) of that Article there is added¾

Stop notices [j9]

9.¾ (1) In Article 73 of the principal Order (stop notices)¾

(2) For Article 67(5) of the Planning (Northern Ireland) Order 1972 (NI 17) there is substituted¾

Certificate of lawful use or development [j10]

10. After Article 83 of the principal Order there is inserted¾

Rights of entry for enforcement purposes [j11]

11.¾ (1) At the end of Part VI of the principal Order there is inserted¾

(2) In Article 121(1) of that Order (rights of entry)¾

Listed buildings [j18]

12.¾ (1) In Article 44 of the principal Order (control of works for demolition, alteration or extension of listed buildings) for paragraph (6) there is substituted¾

(2) In Article 77 of that Order for paragraph (4) there is substituted¾

(3) In Article 78 of that Order¾

Hazardous substances [j18A]

13.¾ (1) In Article 61 of the principal Order (offences) for paragraph (4) there is substituted¾

(2) In Article 81 of that Order (hazardous substances contravention notices)¾

(3) After that Article there is inserted¾

Replacement of trees [j16A]

14. For Article 82 of the principal Order (enforcement of duties as to replacement of trees) there is substituted¾

Control over development

Demolition [j28]

15.¾ (1) In Article 11 of the principal Order (meaning of "development") after subsection (1) there is inserted¾

(2) In paragraph (2) of that Article, after sub-paragraph (e) there is inserted¾

Reversion to previous lawful use [j27]

16. Article 12 of the principal Order (development requiring planning permission) shall be renumbered as paragraph (1) of that Article and after that paragraph there is inserted¾

Power of Department to decline to determine applications [j14]

17.¾ (1) After Article 25 of the principal Order there is inserted¾

(2) In Article 33 of that Order (right to appeal where Department has failed to take a decision on an application) after "applies," there is inserted¾

Assessment of environmental effects [j13]

18. After Article 25A of the principal Order (as inserted by section 17 of this Act) there is inserted¾

Dismissal of appeals in cases of undue delay [j15]

19. In Article 32 of the principal Order (appeals) after paragraph (5) there is inserted¾

Planning agreements [j21]

20.¾ (1) For Article 40 of the principal Order (agreements facilitating, regulating or restricting development or use of land) there is substituted¾

(2) In Schedule 11 to the Land Registration Act (Northern Ireland) 1970 (c. 18) (matters requiring to be registered in the Statutory Charges Register) in entry 27 after sub-paragraph (g) there is inserted¾

Control over particular matters

Advertisements [j17]

21. In Article 2(2) of the principal Order (interpretation) in the definition of "advertisement"¾

Building preservation notices [j22]

22.¾ (1) After Article 42 of the principal Order (list of buildings of special architectural or historic interest) there is inserted¾

(2) In paragraph (1)(d) of Article 121 of that Order (rights of entry) after "of" is inserted "affixing a notice in accordance with Article 42B(1) or".

(3) After Article 67 of the Planning (Northern Ireland) Order 1972 (compensation for loss due to stop notice) there is inserted¾

Trees [j16]

23.¾ (1) In Article 65 of the principal Order (tree preservation orders)¾

(2) After that Article there is inserted¾

(3) In Article 66 of the principal Order (penalties for contravention of tree preservation orders)¾

(4) After that Article there is inserted¾

(5) In Article 115 of the principal Order¾

(6) In Article 66 of the Planning (Northern Ireland) Order 1972 (NI 17) (compensation in respect of tree preservation orders)¾

Miscellaneous

Status of development plans [j12]

24. In Article 4 of the principal Order (development plans) after paragraph (2) there is inserted¾

Planning Appeals Commission [j110]

25.¾ (1) In paragraph (2)(a) of Article 110 of the principal Order (Planning Appeals Commission) after "chief commissioner" is inserted "and deputy chief commissioner".

(2) After paragraph (5) of Article 111 of that Order (procedure of appeals commission) is inserted¾

Grants for research and bursaries [j119]

26. In paragraph (1) of Article 119 of the principal Order (grants for research and bursaries) after "physical" there is inserted "or built".

Grants to bodies providing assistance in relation to certain development proposals [j120]

27. In Article 120 of the principal Order (grants to bodies providing assistance in relation to certain development proposals)¾

Planning register [j19]

28. In paragraph (1) of Article 124 of the principal Order (planning register) after sub-paragraph (i) there shall be added¾

Home loss payments following planning blight [j29]

29. In Article 30 of the Land Acquisition and Compensation (Northern Ireland) Order 1973 (NI 21)¾

Minor and consequential amendments and repeals [j24]

30.¾ (1) The statutory provisions set out in Schedule 1 shall have effect subject to the minor and consequential amendments specified in that Schedule.

(2) The statutory provisions set out in the first column of Schedule 2 are repealed to the extent set out in the second column of that Schedule.

Commencement [j31]

31.¾ (1) The preceding provisions of this Act shall come into operation on such day or days as the Department of the Environment may by order appoint.

(2) An order under subsection (1) may contain such transitional provisions and savings as the Department of the Environment considers appropriate in connection with the order.

Short title [j30]

32. This Act may be cited as the Planning (Amendment) Act (Northern Ireland) 2002.

Schedules

Schedule 1

Minor and consequential amendments [s001]

The Planning (Northern Ireland) Order 1972 (NI 17)

1. In Article 67¾

The Planning (Northern Ireland) Order 1991 (NI 11)

2. In Article 2(2)¾

3. After Article 28 insert¾

4. Omit Article 29.

5. In Article 32(6) for "28" substitute "28A".

6. In Article 34¾

7. In Article 39, for paragraph (3) substitute¾

8. Omit Article 41.

9. In Article 69¾

10. In Article 70(2) for "informality" substitute "misdescription".

11. In Article 73¾

12. For Article 75 substitute¾

13. In Article 76¾

14. In Article 77¾

15. In Article 78, in paragraph (1)(f) for "68(5)" substitute "68(2) and (3)".

16. In Article 112, in paragraph (2)(b)¾

17.¾ (1) In Article 113, in paragraph (1)(b) after "VI" insert "except Articles 84A and 84B".

(2) In paragraph (3) of that Article for "no enforcement notice shall be issued under Article 68" substitute "no notice shall be issued or served or any application made under any of the provisions of Articles 67C, 68, 68B, 73, 76A, 76B".

18. In Article 114¾

19. In Article 122¾ .

20. In Article 128, in paragraph (2)¾

Schedule 2

Repeals [s002]

PLANNING (AMENDMENT) BILL

___________

DRAFT EXPLANATORY AND FINANCIAL MEMORANDUM

INTRODUCTION

BACKGROUND AND POLICY OBJECTIVES

CONSULTATION

Options considered

OVERVIEW

COMMENTARY ON CLAUSES

New enforcement powers

Clause 1 - Planning Contravention Notice

This clause provides for the issue of a Planning Contravention Notice, the purpose of which is to strengthen the Department's power to obtain information prior to taking enforcement action, to encourage dialogue with any persons thought to be in breach of planning control and to secure their co-operation in taking corrective action. Failure to comply with such a Notice within 21 days of its service would be an offence, liable on summary conviction, to a fine not exceeding level 3 on the standard scale (currently £1,000). In addition any person who makes a false or misleading statement in respect of a notice will be liable on summary conviction to a fine not exceeding level 5 on the standard scale (currently £5,000). Failure to comply with a Notice could also affect any future entitlement to compensation payable in connection with Stop Notices.

Clause 2 - Enforcement of Conditions

This clause provides for the issue of a Breach of Condition Notice for breaches of conditions attached to a planning permission. It may be served if there is clear evidence that a planning condition has not been complied with. Non-compliance with a Breach of Condition Notice shall be an offence liable on summary conviction to a fine not exceeding level 3 on the standard scale (currently £1,000).

Clause 3 - Injunctions

This clause will give the Department an express power to apply to the Courts for an injunction to prevent any actual or threatened breach of planning control. This power will also apply in relation to unauthorised works to a listed building, breaches of a Tree Preservation Order and certain acts in respect of trees in a Conservation Area; and, any actual or apprehended breach of a Hazardous Substances Contravention Order. The intention is to integrate injunctions into the range of enforcement powers available to the Department so that they may be used, whether or not other enforcement powers have been, or are intended to be, used. Rules of Court may provide for an injunction to be granted against a person whose identity is unknown.

Other changes relation to enforcement

Clause 4 - Time Limits

This clause simplifies the rules regarding the time period within which action may be taken in respect of breaches of planning control, by establishing two different limitation periods for enforcement action: -

• The four-year rule: four years is the time allowed to the Department to take enforcement action where the breach comprises either operational development (the carrying out of unauthorised building, engineering, mining or other operations), or the change of use to use as a single dwelling house.
• The ten-year rule: this is the time allowed for all other breaches of planning control, and represents a significant change from the current position. Under the Planning (NI) Order 1991, an unauthorised change of use (other than to use as a single dwelling house) was immune from enforcement action only if it had been undertaken before 26 August 1974. Upon coming into operation, immunity from enforcement action will automatically be conferred on all breaches of planning control that occurred between 26 August 1974 and the date ten years prior to the Act becoming law, thereafter immunity will accrue on a rolling basis.

Clause 5 - Enforcement Notice

It is intended that this clause will reduce the legal complexity of the provisions that apply to the drafting, issue and service of enforcement notices, by minimising the possibility of some minor drafting error, legal or technical deficiency, resulting in a notice being quashed. The notice will still have to be sufficiently clear to enable any recipient to understand exactly what unauthorised use/work is alleged and what he/she is required to do to remedy this. It provides that an enforcement notice may be served on the current owner or occupier of the land to which the notice relates and on any other person with an estate in, the land. The provisions will provide the Department with flexibility to require only partial remedy of a breach of planning control where, at the time of enforcement, a total remedy is not considered necessary. This provisions will also allow for the withdrawal or variation of an enforcement notice, without prejudice to the Department's power to issue a further notice.

Clause 6 - Appeal against Enforcement Notice

This clause specifies revised grounds on which an appeal against an enforcement notice can be made and the procedures for making a valid appeal. It also provides that if an appeal against an enforcement notice includes a ground of appeal that planning permission ought to be granted for the development to which the notice relates or, as the case may be, that a condition or limitation alleged in the enforcement notice not to have been complied with ought to be discharged, it shall constitute a deemed planning application. The clause also requires the planning appeals commission to notify the appellant of the amount of the appropriate fee and to specify the period within which it must be paid. If the fee is not paid within that period then the appeal on the planning merits will lapse and the commission barred from considering or determining the deemed planning application.

Clause 7 - Offence for Non-Compliance with an Enforcement Notice

This clause will strengthen and clarify existing provisions concerning offences for not complying with an enforcement notice. The clause provides for an increase in the maximum level of fine, on summary conviction, from £5,000 to £20,000. It also allows, for the first time, for a person to be convicted on indictment for this type of offence. The courts when determining either level of fine shall, in particular, have regard to any financial benefit, which has accrued or appears likely to have accrued, in consequence of the offence. The clause also makes it clear that a person found guilty of an offence, and who continues not to comply with a notice, may be guilty of a further offence, and subsequently, of still further offences until there is compliance with a notice.

Clause 8 - Execution of Works

This clause strengthens the power of the Department to enter land and carry out works to ensure compliance with an Enforcement Notice. It also makes it an offence, punishable on summary conviction to a fine not exceeding level 3 on the standard scale (currently £1,000), to wilfully obstruct anyone authorised to carry out works.

Clause 9 - Stop Notices

This clause strengthens and clarifies the current Stop Notice provisions by enabling a Stop Notice to take effect within a shorter period than at present and, immediately, if necessary. To ensure parity with the increased penalties for contravention of an Enforcement Notice, this clause provides that: -

• until the Notice is complied with, further offences may be committed;
• the maximum level of fine for contravention of a Stop Notice will be increased from £5,000 to £20,000 on summary conviction;
• statute will allow, for the first time, for a person to be convicted on indictment for this type of offence; and,
• the courts will be required to take account of any benefits accrued or which appear likely to accrue as a result of the offence.

In certain circumstances compensation may be payable when a Stop Notice is quashed or withdrawn. Subsection (2) provides that no compensation is payable in respect of a stop notice for any activity which at the time when the notice is in force constitutes or contributes to a breach of planning control or in respect of any loss or damage if such loss or damage could have been avoided had information required under a Contravention Notice (see Clause 1), or Article 125 of the 1991 Order, been provided.

Clause 10 - Certificate of Lawful Use or Development

This clause abolishes the unsatisfactory situation whereby a development may be "unlawful" but "immune" from enforcement action, because the time period for taking such action has elapsed. Under this clause, a person will be able to apply to the Department for a Certificate to ascertain whether an existing use of buildings or other land, or operational development, or some activity in breach of a planning condition, is lawful. In the case of a proposed use or operational development, the grant of a Certificate would establish the lawfulness of the proposed use or operational development.

The onus for producing sufficient evidence to warrant the granting of a Certificate will rest firmly on the applicant. There will be a right of appeal against a refusal or failure to give a decision. Any person who makes a false or misleading statement in respect of procuring a Certificate will on summary conviction be liable to a fine not exceeding the statutory maximum or, on conviction on indictment, to imprisonment for a term not exceeding two years, or a fine, or both.

Clause 11 - Rights of Entry for Enforcement Purposes

This clause will allow officers of the Department to enter any land at all reasonable hours, on production of appropriate authority, for the purposes of investigating any alleged breach of planning control on that land or on immediately adjoining land.

The provisions of this clause are more closely tailored to the Department's needs in obtaining information, preparatory to taking formal enforcement action. When taken together with the new "planning contravention notice" (for which Clause 1 provides) the Department will have comprehensive powers to obtain essential information about any suspected or actual breach of control under Part VI of the 1991 Order.

Clause 12 - Listed Buildings

This clause provides for the following possible penalties for a person found guilty of an offence involving demolition, or alteration or extension of a listed building affecting its character: -

• to be given a term of imprisonment not exceeding 6 months or a fine not exceeding £20,000 or both; or
• imprisonment for not more than 2 years, or a fine.

The courts when determining either level of fine shall, in particular, have regard to any financial benefit, which has accrued or appears likely to be accrued, in consequence of the offence.

Clause 13 - Hazardous Substances

This clause provides that a person found guilty of an offence relating to hazardous substances will be liable on summary conviction to a fine not exceeding £20,000 or, on conviction on indictment, to a fine.

The courts when determining either level of fine shall, in particular, have regard to any financial benefit, which has accrued or appears likely to be accrued, in consequence of the offence.

It also allows for hazardous substances contravention notices to require only a partial remedy, if this is considered appropriate.

Clause 14 - Replacement of Trees

This clause replaces Article 82 of the 1991 Order and provides for revised enforcement measures in respect of the protection of trees that are subject to a Tree Preservation Orders (TPO) as follows: -

• A new power for the Department to enforce the duty to replace trees subject to a TPO;
• Sets out specific grounds of appeal against enforcement notices in relation to trees;
• A power for the Department to enter onto land to replant trees subject to a TPO, and to recover any costs incurred as a civil debt;
• A new duty on an owner to replace trees in a Conservation Area that are removed.

Control over development

Clause 15 - Demolition

This clause introduces an amendment to make it clear that all demolition should come within the meaning of development for planning purposes. However, for the time being, only buildings in Areas of Townscape Character and those buildings whose demolition is already subject to planning control, i.e. historic monuments, listed buildings and buildings in Conservation Areas, will be subject to this new regime. This will be achieved by specifying in a Departmental Direction under a new Article 11(2)(f) those buildings whose demolition does not come within the meaning of development for planning purposes and those buildings that do. The purpose of this is to avoid the possibility of a large number of planning applications for the demolition of relatively minor structures clogging up the planning process.

Clause 16 - Reversion to previous lawful use

This clause brings NI legislation into line with GB legislation by specifying that it is lawful to revert to a previous legal use following service of an enforcement notice or at the end of a temporary planning permission. At present in NI, technically such reversion requires planning permission.

Clause 17 - Power to Decline to Determine Applications

To prevent Developers using 'repeat applications' as a tactic this clause gives the Department power to decline to determine a planning application if, within the preceding 2 years, it had refused an application designated as a major one under the Article 31 procedure of the Planning (NI) Order 1991, or the Planning Appeals Commission has dismissed an appeal for a similar proposal, and there has been no material change in circumstances.

Clause 18 - Assessment of Environmental Effects

Under EC Directive 85/337/EEC there is a requirement to make regulations which set out the classes of development for which an environmental assessment may be required. This requirement was implemented by the Planning (Environmental Impact Assessment) Regulations (Northern Ireland) 1999. This clause makes specific primary provision to allow new regulations to go beyond the environmental assessment provisions of the Directive. For example, in England and Wales the Regulations were extended to include wind generators, motorway service areas and coastal protection works in the classes of development for which an environmental assessment may be required.

Clause 19 - Dismissal of Appeal in cases of undue Delay

To prevent time wasting appeals and appeals lodged for tactical purposes this clause will give the Planning Appeals Commission the power to dismiss an appeal if it appears that the appellant is causing undue delay in its progress.

Clause 20 - Planning Agreements

This clause amends the application of planning agreements and introduces provisions relating to the modification or discharge of an agreement. A party to a planning agreement will be enabled by this clause to apply to the Department for modification and discharge of an obligation with a right of appeal to the Planning Appeals Commission against the Department's determination.

The clause also creates a new offence for the wilful obstruction of any person authorised to enter land to carry out works required by a planning agreement.

Control over particular matters

Clause 21 - Advertisements

This clause will broaden the definition of "advertisement" to include matters such as rotating poster panels, advertisements on permanently fixed blinds or canopies on business premises etc. This is to ensure that certain modern forms of outdoor advertising are subject to advertisement control.

Clause 22 - Building Preservation Notices

This clause introduces Building Preservation Notices for the temporary listing of buildings, commonly referred to as 'spot-listing'. The introduction of these notices will enable the Department to respond quickly to protect buildings at risk.

Clause 23 - Trees

Together with Clause 14, which deals with enforcement of duties in relation to the replacement of trees, this clause provides a major overhaul of the Department's powers in respect of the protection of trees and Tree Preservation Orders (TPOs) as follows: -

• A new duty to replace trees subject to a TPO that are removed. The existing TPO would automatically apply to the new trees planted as it did to the original trees, thereby providing that the removal of trees in itself does not automatically render the land suitable for development ;
• Higher penalties for breaches of TPOs. This involves an increase from £5,000 to £20,000 in the maximum level that can be imposed on summary conviction by a court. There is no limit to a fine that can be imposed on conviction on indictment. The Courts when determining either level of fine shall, in particular, have regard to any financial benefit, which has accrued or appears likely to be accrued, in consequence of the offence;
• A new provision in respect of the protection of trees in a Conservation Area; and
• A new provision in respect of compensation payable where consent to fell trees is refused. This will allow restrictions to be imposed on compensation payable, in each TPO made under the new provision.

Miscellaneous

Clause 24 - Status of development plans

This clause gives prime importance to a Development Plan in the determination of planning applications. Its effect will be that the Development Plan will no longer be simply a consideration to which "regard" must be had; the planning decision itself will now have to be made in general conformity with the Plan, except where material considerations indicate otherwise. There is, therefore, a presumption in favour of development that accords with the Plan and a presumption against development that does not.

In all cases, the Development Plan is the starting point for the determination of planning decisions and its provisions prevail until material considerations indicate otherwise.

Clause 25 - Planning Appeals Commission

This clause specifies, for the first time, the post of Deputy Chief Commissioner. It also makes specific provision to allow rules of procedure to be made governing the number of Commissioners who will be required to make a decision on a planning appeal or to make a report to the Department on a Public Inquiry.

Clause 26 - Grants for research and bursaries

This clause extends an existing power to enable the Department to make grants for assisting establishments engaged in promoting or assisting research relating to, and education with respect to, the planning and design of the built environment in addition to the physical environment.

Clause 27 - Grants to bodies providing assistance in relation to certain development proposals

This clause provides the Department with powers to enable it to provide funding for bodies, which may include Building Preservation Trusts, in circumstances where such funding would not necessarily be confined to grant eligible work, for example, the acquisition of buildings considered to be at risk.

Clause 28 - Planning Register

In addition to those matters already listed in Article 124 of the Planning (NI) Order 1991, this clause requires the Department to keep registers available for public inspection detailing those notices that it issues relating to: -

tree preservation in conservation areas;

breach of condition notices;

certificates of lawfulness of existing use or development;

certificates of lawfulness of proposed use or development; and

building preservation notices

Clause 29 - Home Loss payments following planning blight

This clause has been included to correct an omission in the Home Loss Payments (Northern Ireland) Order1992 that only came to light in 1997. It will allow a home loss payment to be made to owner-occupiers who have served a blight notice on the Department under the provisions of the Planning Blight Compensation (Northern Ireland) Order 1981.

Clause 30 - Minor and consequential amendments and appeals

This clause makes provision for minor and consequential amendments to be made in Schedules 1 and 2 to the Bill.

Clause 31 - Commencement

This clause provides for certain provisions in the Bill to come into operation on such day or days as may be appointed by the Department and for transitional and saving provisions to be made.

Clause 32 - Short Title

This section gives the short title of the Act. This is the title by which the Act will be referred to.

Schedule 1: Minor and consequential amendments

This schedule makes minor and consequential amendments to the Planning (Northern Ireland) Order 1972 and The Planning (Northern Ireland) Order 1991, as required by the new provisions inserted by the Bill.

Schedule 2: Repeals

This schedule details those existing Articles of both the Planning (Northern Ireland) Order 1972 and the Planning (Northern Ireland) Order 1991 which are being repealed by this Bill.

financial effects of the bill

Effects on equal opportunity

human rights issues

Summary of the regulatory appraisal

SECRETARY OF STATE'S CONSENT

legislative competence

LETTER FROM:
THE MINISTER DEPARTMENT OF THE ENVIRONMENT
TO THE SECRETARY OF STATE FOR NORTHERN IRELAND

21 May 2002

As Minister of the Environment, I am writing to seek your consent to the consideration by the Assembly of certain reserved matters in the above Bill, which I hope to introduce to the Assembly in June 2002.

The Bill will introduce legislation to strengthen and enhance the Department's existing planning enforcement powers, and give primacy to development plans in the determination of planning applications. In this respect, it follows the enforcement provisions introduced by the Planning and Compensation Act 1991 in England, Scotland and Wales.

The attached Explanatory and Financial Memorandum provides fuller details of the proposed measures. You will note in particular that the proposed measures create new offences and increase levels of fines in respect of:-

new offences:

Planning Contravention Notice (clause 1)

Non-compliance with a Planning Contravention Notice within 21 days of service would be an offence, liable on summary conviction, to a fine not exceeding level 3 on the standard scale (currently £1,000). In addition, any person who makes a false or misleading statement in respect of a notice will be liable on summary conviction to a fine not exceeding level 5 on the standard scale (currently £5,000).

Breach of Condition Notice (clause 2)

Non-compliance with a Breach of Condition Notice within the timescale set out in the Notice shall be an offence liable on summary conviction to a fine not exceeding level 3 on the standard scale (currently £1,000).

Executive of Works (clause 8)

This clause makes it an offence, punishable on summary conviction to a fine not exceeding level 3 on the standard scale (currently £1,000), to wilfully obstruct anyone authorised to enter land and carry out works to ensure compliance with an Enforcement Notice.

Certificate of Lawful Use/Development (clause 10)

Under this clause, any person who makes a false or misleading statement in respect of procuring a Certificate will, on summary conviction, be liable to a fine not exceeding the statutory maximum or, on conviction on indictment, to imprisonment for a term not exceeding two years, or a fine, or both.

Planning Agreements (clause 20)

The clause will create a new offence for the wilful obstruction of any person authorised to enter land to carry out works required by a planning agreement.

Tree Preservation Order (clause 23)

This clause provides for, amongst other things relating to tree preservation orders, the preservation of trees in conservation areas. It creates a new offence for any person who does any act affecting trees in a conservation area that might be prohibited by a tree preservation order.

increases in levels of fine

Offence for non-compliance with an Enforcement Notice (clause 7)

This clause provides for an increase in the maximum level of fine for failing to comply with an Enforcement Notice, from £5,000 to £20,000 on summary conviction. It also allows, for the first time, for a person to be convicted on indictment for this type of offence. The courts when determining either level of fine shall, in particular, have regard to any financial benefit, which has accrued or appears likely to have accrued, in consequence of the offence. This clause also makes it clear that a person found guilty of an offence, and who continues not to comply with an Enforcement Notice, may be guilty of a further offence, and subsequently, of still further offences until there is compliance with a Notice.

Stop Notices (clause 9)

This clause provides for an increase in the maximum level of fine for failing to comply with a Stop Notice, from £5,000 to £20,000 on summary conviction. It also allows, for the first time, for a person to be convicted on indictment for this type of offence. The courts when determining the level of fine shall, in particular, have regard to any financial benefit, which has accrued or appears likely to have accrued, in consequence of the offence. This clause also makes clear that a person found guilty of an offence, and who continues not to comply with a Stop Notice, may be guilty of a further offence, and subsequently, of still further offences until there is compliance with a Notice.

Listed Buildings (clause 12)

This clause provides for the following possible penalties for a person found guilty of an offence involving demolition of a listed building or works to alter or extend a listed building thereby affecting its character:-

• to be given a term of imprisonment not exceeding 6 months or a fine not exceeding £20,000 or both; or
• imprisonment for not more than 2 years, or a fine.

The courts when determining either level of fine shall, in particular, have regard to any financial benefit, which has accrued or appears likely to be accrued, in consequence of the offence.

Hazardous Substances (clause 13)

This clause provides that a person found guilty of an offence relating to hazardous substances would be liable on summary conviction to a fine not exceeding £20,000 or, on conviction on indictment, to a fine.

The courts when determining either level of fine shall, in particular, have regard to any financial benefit, which has accrued or appears likely to be accrued, in consequence of the offence.

Trees (clause 23)

Together with Clause 14, which deals with enforcement of duties in relation to the replacement of trees, this clause provides a major overhaul of the Department's powers in respect of the protection of trees and Tree Preservation Orders (TPOs). Amongst other changes it provides for higher penalties for breaches of TPOs. This involves an increase from £5,000 to £20,000 in the maximum level that can be imposed on summary conviction by a court. There is not limit to a fine that can be imposed on conviction on indictment. The Courts when determining either level of fine shall, in particular, have regard to any financial benefit, which has accrued or appears likely to be accrued, in consequence of the offence.

POWER TO APPLY FOR INJUNCTIONS

Injunction (clause 3)

This clause will give the Department an express power to apply to the Court for an injunction to prevent any actual or threatened breach of planning control. This power will also apply in relation to unauthorised works to a listed building, breaches of a Tree Preservation Order and certain acts in respect of trees in a Conservation Area, or any actual or apprehended breach of a Hazardous Substances Contravention Order. Rules of Court may provide for an injunction to be granted against a person whose identity is unknown.

All of the offences and increases in levels of fine identified above, plus the power to apply to the Court for an Injunction, are features of existing planning legislation in England, Scotland and Wales.

Since these are reserved matters under paragraph 9(b) of Schedule 3 to the Northern Ireland act 1998, it is necessary to seek your consent under section 8 of the Northern Ireland Act 1998 to the consideration of the Bill by the Assembly.

In all other respects, the provisions in the Bill are considered to be within the legislative competence of the Assembly, and I propose to provide a statement under Section 9 of the Northern Ireland Act 1998 to this effect.

Finally, you may wish to note that the Assembly Environment Committee, and others, have suggested the setting of higher levels of fines to act as an even stronger deterrent to breaches of planning control, and the creation of a new offence and associated penalties in respect of commencing development without lawful permission. The latter is a feature of planning law in the Republic of Ireland, but does not exist in any UK jurisdiction. The former would, of course, take Northern Ireland beyond parity with England and Wales. I have given no commitment to the Environment Committee or the Assembly to introduce such provisions, and have not yet discussed either request with my colleagues in the Executive Committee. I have not, therefore, included provisions in this Bill in respect of these issues.

By way of additional context, I understand that the Department of Transport, Local Government and the Regions intends to issue a consultation paper on a review of planning enforcement procedures, including the level of fines, in June 2002. This paper, will I understand seek comments on the appropriateness or otherwise of the current levels of fines that can be imposed for breaches of planning control.

I am, however, conscious that amendments may be tabled during the passage of the Bill to introduce such provisions, and that they might find widespread support amongst Assembly Members. I am not asking you to consider firm legislative proposals at this time, but I would welcome the opportunity to discuss these issues with you at the earliest possible opportunity. I have asked my Private Office to contact yours to make the arrangements.

DERMOT NESBITT MLA
Minister of the Environment

ANNEX 11

LETTER FROM:
COMMITTEE FOR THE ENVIRONMENT

13 June 2002

26 District Councils
Queen's University of Belfast
University of Ulster
Royal Town Planning Institute
Ulster Architectural Heritage Society
Historic Buildings Council
Royal Society for the Protection of Birds
NI Environment Link
Planning Appeals Commissions
Confederation of British Industry
Construction Employers Federation
Hearth Revolving Fund
The Woodlands Trust
Robert Turley Associates Ltd
Royal Institute of Chartered Surveyors
Royal Society of Ulster Architects

The Planning (Amendment) Bill was formally introduced to the Northern Ireland Assembly on 10 June 2002. I enclose a copy of the Bill and the associated Explanatory and Financial Memorandum. The Committee for the Environment is responsible for the formal scrutiny of the Bill and in due course provides a report on the Bill to the Assembly.

The Committee Members discussed the way forward on its scrutiny of the Bill at yesterday's Committee Meeting. The Committee agreed that it would be useful to copy the Bill to all Local Councils and other appropriate consultees to seek comments and, in particular, any concerns on the specific terms of the Bill.

It would be most helpful if you could structure your response to the specific clauses of the Bill and, if appropriate, could you suggest alternative or additional wording to clauses, which may assist the Committee's consideration of the need for any amendments to the Bill.

The Committee is scheduled to consider the Bill at its meeting of 4 July 2002 and would therefore be grateful for your response (or interim response) to reach me at the latest by close Friday 28 June 2002. My e-mail address and fax number are shown above.

JOHN SIMMONS
Clerk to the Committee of the Environment

ANNEX 12

HANSARD REPORT

PLANNING (AMENDMENT) BILL: SECOND STAGE - 24 JUNE 2002

The Minister of the Environment (Mr Nesbitt):

I beg to move

That the Second Stage of the Planning (Amendment) Bill (NIA 12/01) be agreed.

I am pleased to present the Bill to the Assembly. It is the first major piece of planning legislation since 1991. Therefore, I wish to make my position clear and to give clear direction on the way forward on these matters.

In March 1999, the Department of the Environment and the pre-devolution Ministers considered what should be done on planning. The Ministers made it clear that they wanted the matter to be left until there was devolution in Northern Ireland. Hence, we are here today.

On devolution, Planning Service was underfunded, under pressure and underperforming. It was - and still is - the subject of much criticism from the public and from elected representatives. Planning Service needed more resources, and it also needed a complete overhaul of its policies, processes and powers.

Since becoming Minister, I have viewed that as a matter of utmost importance. I wish to see a speedy and effective planning decision process for those who operate within the law. However, I also wish to see a speedy and effective sanction for those who flout the law. The Department has received resources. Early in 2001 we started to consider the Planning (Amendment) Bill. Since then, the Department has engaged with the Committee for the Environment to discuss the various proposals. The Committee has welcomed, and had already identified, many of the issues that we have taken forward in the Bill. However, it has expressed concern that some issues were not being addressed.

The first such issue was development without planning permission. The Committee expressed concern that there were no provisions in the Bill to make the commencement of development without planning permission unlawful. Since becoming Minister of the Environment and being involved in these issues, I have empathised with the Environment Committee's wish to see that highly undesirable and unwelcome practice addressed.

My Department commissioned research from Queen's University into the extent of the problem in other jurisdictions, and initial findings confirm my view that there is considerable merit in creating a new offence, as proposed by the Committee. That could be done by amending the Bill. However, several important issues and procedural matters must be considered before making such an amendment. I want constructive discussion with the Committee, but some questions need to be addressed. What will the new offences be? What fines and penalties should there be? To try to answer those questions, I sent a policy paper to the Committee earlier today.

If we were to create a new offence, the Executive would have to agree any proposed draft amendment. Above all, we would be creating a new offence in Northern Ireland law, and that would require the approval of the Secretary of State because creating a criminal offence in planning is a reserved matter. I have had preliminary discussions with the Secretary of State about this in principle, and I intend to consult him further if firm proposals come through.

The Committee was concerned that the maximum fine in a Magistrate's Court for breaching planning legislation is an insufficient deterrent to those who flout the law. However, the Bill already provides for a significant increase in the fines that a Magistrate's Court can impose - from the current maximum of £5,000 to a proposed maximum of £20,000 - which is in line with the position in Great Britain. The Bill also includes provisions to enable a case regarding general enforcement notices to be brought to trial before a Crown Court, where there would be no limit on the level of fine that could be imposed. Those significant measures should be welcomed.

However, I empathise with the Committee's concerns and intend to consider further the level of fines that a Magistrate's Court should be able to impose. Again, as a basis for discussion, I sent a detailed policy paper to the Committee on that today, too. After that discussion, I hope we will consider whether an appropriate amendment can be brought forward. As I said, the creation of a new offence must involve the Executive and the Secretary of State.

The Committee also expressed concern, which I must address, that there is no provision in the Bill to introduce third-party appeals. I am less sympathetic to the Committee's concerns on this - it would not be judicious to proceed at this stage. I accept that the Committee, and many others here, support the introduction of third-party appeals. Many argue that it is a matter of natural justice. A developer or householder who does not get planning approval can appeal - whereas those who object to an approval have no right of appeal. There is, therefore, a matter of natural justice between the two sides.

12.15 pm

Much has been said in favour of third-party appeals. Members have argued that the lack of such a provision breaches the European Convention on Human Rights. That is not so, as has been amply shown by several recent Court of Appeal and House of Lords decisions. I am satisfied, on the basis of legal advice, that our planning processes, together with the availability of judicial review, comply with the European Convention, so there is no legal imperative to introduce third-party appeals.

In addition, the introduction of third-party appeals would represent a fundamental change to the planning process. Research carried out by Queen's University suggests that they would be a new insertion into the legislative framework. That would cause serious difficulties for the planning process, particularly for its operational efficiency, which must be considered. There would probably be increased delays in making decisions; the delays are bad enough now. It would also result in uncertainty for people who wished to invest in Northern Ireland. More recent research by Queen's has shown that several issues need to be considered, and policy objectives must be absolutely clear. There are many different ways in which third-party appeals could be introduced.

Mr Close said that, through the review of public administration, some authority might be devolved to local government. If decision-making powers and planning are to be devolved to local authorities, the Assembly would have to be concerned about the desirability of that when a third-party appeal would allow a decision go to the Planning Appeals Commission. I ask the Assembly to consider that. The potentially adverse implications of introducing third-party appeals must be carefully considered - not just the benefits that have been referred to often.

As with the other two matters that were raised by the Environment Committee, I want to discuss that with it. I have today sent a third paper to the Committee as the basis for further detailed discussion on third-party appeals. Those three papers show my genuine efforts over several weeks.

A motion is to be moved in the Assembly tomorrow to extend the Committee Stage of the Local Government (Miscellaneous Provisions) Bill to 17 October 2002. During that period, I wish to have earnest discussion on those three issues, which the Environment Committee raised as being of particular concern.

No major decision on third-party appeals should be made without exposing the full range of options and consequences to full and detailed public consultation. Therefore, I propose to publish a detailed consultation paper on that important subject as soon as possible. Third-party appeals cannot, and should not, be dealt with in this Bill. Indeed, to attempt to do so might jeopardise the passage of the Bill in its entirety.

I turn to the wider context in which I have been dealing with the Planning (Amendment) Bill and the wider aspects that must be dealt with. I said that resources were needed. Additional resources have been secured - 103 new staff have been recruited and 50 more are to follow. New powers have been proposed in the Bill. It is one thing to have new powers, but to be truly effective, those powers need resources to deliver on the law. Therefore, I will be targeting further resources for enforcement matters.

We are also bringing forward new area plans, updating and revising policy planning statements, and modernising the planning process. The modernisation proposal was published in February, and a statement will be made later in the year. I emphasise that this is the most comprehensive review of planning processes in Northern Ireland since 1973.

I have made a substantial bid through the Executive programme funds to overhaul the IT systems of Planning Service and move its IT provision into the best practice of the twenty-first century. If that bid is successful, it will move Planning Service to the cutting edge of IT and produce a quantum leap in the way in which the service operates. Those elements represent a substantial programme of work to improve the operations and functions of Planning Service, and must not be forgotten in the context of the Bill.

There are 32 clauses and two schedules in the Bill. Clauses 1 to 14 propose a substantial strengthening of enforcement powers. For example, clause 1 proposes the introduction of a planning contravention notice. Clause 2 provides for a breach of condition notice. Clause 3 deals with the very important matter of injunctions, where the Department will have direct recourse to the courts to prevent breaches of regulations. That will speed up and strengthen the enforcement process. It is also planned to introduce increased fines for non-compliance with enforcement notices, stop notices and hazardous substances controls. Fines will range from £5,000 to £20,000. If the Bill is enacted, it will, for the first time, allow a Crown Court in Northern Ireland to impose an unlimited fine.

In addition to higher fines for contravention of listed building enforcement notices, there is to be a new provision for custodial sentences for those offences where a listed building is tampered with, by demolition or otherwise, of up to six months in the Magistrates' Court or up to two years in a Crown Court. There will also be new powers of entry for the purposes of investigation of alleged breaches of planning control. The Bill will also allow enforcement notices to be withdrawn or varied.

Clauses 15 to 23 deal with controls over development. By way of example, there will be controls over the demolition of buildings. There will be new powers to decline to determine planning applications.

Moreover, clause 22 introduces a building preservation notice, a matter that has exercised the minds of those in the Chamber over the past weeks: it is commonly referred to as "spot-listing". A building can be spot-listed immediately and a full investigation carried out over the subsequent six months to determine if it is worthy of listing. That important provision will allow the Department to move quickly in circumstances where buildings are at risk and provide a breathing space where necessary. It is the very thing that Members were concerned about several weeks ago, and I said then that such a provision would be included in this Bill.

Clause 23 deals with the protection of trees. There are new enforcement powers to provide greater protection for trees that are subject to preservation orders. For example, there will be a new duty to replace such trees. I remind the Assembly that breaches of the requirements will be subject to the same level of fines as previously mentioned - up to £20,000. Should a case reach a higher court, there may be no limit on the amount of the fine. A new provision has been made to enable the Department to protect trees in conservation areas.

Clauses 24 to 32 of the Bill contain miscellaneous provisions. For example, there are measures to give primacy to development plans in the determination of planning applications. There are provisions for new powers for the Planning Appeals Commission to dismiss appeals in certain circumstances, and for the Department to extend its grant-aiding powers in respect of the built environment.

The provisions of the Bill will significantly improve the legislative framework under which the planning system operates. Importantly, the Bill will enhance the Department's enforcement powers and will enable enforcement action to be taken more quickly and effectively.

Mr McGrady:

I suppose that I speak for most Members in welcoming the Bill. I thank the Minister for the detailed exposition of his intent and purpose, and his "empathies", as he called them, in his presentation of the Bill.

I have a sense of déjà vu about the Bill, in that in 1995 the Northern Ireland Affairs Select Committee held an inquiry into planning in Northern Ireland and, some two years later, issued a full report. However, it has taken a further five years for some of the report's recommendations to see the light of day in this Bill. I am reminded of some of the evidence given to that Committee in the House of Commons.

The Minister referred to aspects of the Bill that are important to the ordinary citizen - if it is possible to identify an ordinary citizen nowadays. Although these are not in order of priority, the first was the matter of demolition. The Minister correctly said that recently there have been some "headbanging" examples of demolitions that should not have taken place. I refer not only to the Heaney residence, but to Oxford House, which I read about in the national press last week. That beautiful building and its surrounding mature trees were destroyed in an afternoon.

The Minister rightly spent some time describing the Department's enhanced powers to prevent the demolition of those structures and buildings that should be retained and, perhaps, rehabilitated for posterity. He touched on the question of preservation of the surrounding environment - not just trees. I am not sure that he was convinced that the Bill gives him, the Department and the planners the ability to step in with the urgency and immediacy that are required.

I presume that, in order to do so, the Department will have to identify those buildings and environmental assets that will require either a prevention order or a preservation order. That will be an enormous task in itself because, very often, once a deed is done, it cannot be undone. Will the Department therefore conduct a survey of properties that should be preserved and attach an early warning signal to them that would enable enforcing orders and preservation orders to be triggered?

12.30 pm

The Minister said that he had empathy with that, but things are easier said than done. All Members have experienced the rapidity with which modern machinery can obliterate our heritage before anyone can keep a tab on it.

That brings me automatically to an anomaly in the planning law, which the Bill will address. It is the issue of the legalisation of actions taken before planning permission is granted - assuming that it is granted. There seems to be no justification for the continuation of that anomaly because there is a statutory requirement for six to eight weeks to elapse between the submission of applications and the granting of permission. Therefore the retrospective legality of taking action before planning permission is not a matter that we should continue.

One of the few measures that the Minister did not have empathy with was third-party appeals. It is an important provision, which is missing from the Bill. It is also missing from the consultative document on modernising planning processes. I do not know whether it is contained in the three documents that the Minister said have been issued to the Committee for the Environment today. I hope that those documents will be issued for wider consultation to enable others, who are not members of the Committee and who have an interest in such matters, to make their opinions known to the Department and the Minister before the introduction of the next planning Bill.

The Minister has set his mind against provision for third-party appeal - perhaps those words are too strong, but he has quoted liberally from as yet unpublished research by Queen's University on the matter. However, the Northern Ireland Affairs Select Committee conducted an in-depth enquiry, and all the political parties and most of the district councils argued for the need for third-party appeals. Therefore it is a major issue that must be addressed, and it should have been addressed as a matter of considerable urgency by the Department. I cannot lay blame at the door of the Minister, who has been in office for only a few months, but I can blame the process. There was a body of opinion - [Interruption].

Mr McCartney:

Any reform is bound to make a change in the legislative arrangements for planning. Therefore to suggest that third-party appeals would make some change in the legislative arrangements is no argument at all.

Mr McGrady:

The hon Member has just referred to a matter that puzzles me, and it is one that I am about to come to. The Minister stated that he had little empathy for two aspects. First, that there is no legal imperative.

I do not understand the phrase "no legal imperative" - that simply means not doing anything about it. However, there is a community imperative to do it. The fact that there is no legal imperative means nothing, given that we are here to make the law. That is why that was a rather odd phrase to use; perhaps the Minister meant something different from what I picked up.

The Minister also said that another reason for not having third-party appeals was the possibility of delays; I did not quite catch his words. Third-party appeals are difficult, and I do not deny the difficulty of accommodating them. Many European countries, and, indeed, our neighbours in the Republic of Ireland, have a third-party appeal process that does not unduly hamper the planning process. Individuals have a significant right to third-party appeals, so there is experience that we can learn from. The Minister can hear from several European countries, including the Republic of Ireland, about the matter. It must be addressed urgently.

The Minster also said that recent cases in the House of Lords and elsewhere show that human rights are not being infringed. I hope that he is right, but I also suggest that with the correct emphasis on human rights, it will not be long before someone challenges him on that. It would be better to deal with a messy legal situation involving human rights, third-party appeals and planning by emphatically pre-empting it in the legislation.

I know that many other Members wish to participate, so I shall quickly touch on two other matters. First, the legislation gives primacy to development plans when determining planning applications. A plan-led system could raise concerns that development plans will take precedence over policy, so it is essential to know in the development plans - which will be the criteria on which applications are adjudicated - that full consultation and the subsequent input of an agreed planning policy had taken place. The policy should be overriding, irrespective of what has been written in a plan, and a fairly in-depth consultation is needed to achieve that.

My second point deals with the problem that most Members, as public representatives, have had when dealing with planning matters, which is the lack of uniformity in applying planning policy. As we travel in our fair countryside we see glaring examples of that, and that brings planning into disrepute. A person who has been refused or denied some aspect of his planning application will immediately say "Ah, but what about?" That phrase is used so frequently. When travelling at the weekend, I noticed startling examples of where planning permission had been granted to undeserving private houses and of where the planning policy of one area should have been the policy of other areas but was not. Legislation is not necessary, but planning officers who deal with applications should be trained in interpretation.

Finally, I am surprised that mobile phone masts are not mentioned in the Bill. The Minister's predecessor promised us that the legislation on this would be brought before the Assembly before the end of May.

We are now nearly at the end of June, and we are heading towards recess at the end of next week. This is one aspect of planning that agitates many in the community, whether they are users or non-users of mobile phones. Representations have been made by many bodies and people over the past few years, culminating in the promise of the Minister's predecessor, Mr Sam Foster, that legislation would be brought to the House before the end of May. It is strange, therefore, that nothing has been mentioned about it in the Bill or anything else that I have read. Will the Minister tell us where that legislation is and what stage it is at? Given that this is one of the most emotive issues facing the community, will that legislation be resurrected, dusted down and brought before us?

In general, I welcome the legislation. Having voiced my criticisms and concerns, I hope the Minister will view them as constructive criticisms and expressions of concern in the public interest. I hope that those who are not on the Environment Committee, and those who are not in the House, will have ample opportunity to address the issues raised, or not raised, in the next planning Bill, which should follow fairly quickly, and in the three consultative documents put to the Environment Committee, details of which I tried to jot down as the Minister was speaking.

Mr M Murphy:

Go raibh maith agat, a Cheann Comhairle. I welcome the enforcement powers that address the matter of builders and developers breaching planning control. However, a major concern is that the fines are too light, particularly for large construction companies. I welcome the introduction of penalties for those involved in the demolishing of listed buildings.

As a member of the Environment Committee, I view the new powers enabling the Department to enforce the duty to replace trees that are subject to tree preservation orders (TPOs) as a progressive step. However, tree replacement should be made on a like-for-like basis - the size and species of the tree should be taken into consideration.

The issue of third-party appeals requires more consideration, and the adverse absence needs to be taken into account. The Committee's concerns should be looked at in greater detail and should involve full public consultation. The Committee recognised that the procedure would affect the planning process. However, the procedure already operates in the Republic, and it seems to be working properly. Third parties here have no right of appeal under the present rules. Where planning practice is not to the satisfaction of the local population, it should be clarified for all concerned. District councillors are concerned that their views on third-party appeal issues should be heard and taken on board.

Mr McGrady mentioned mobile phone masts. There is no mention of proper development of planning policies on them, other than that full planning permission is required. That is not good enough. The local population is very concerned about the matter. I ask the Minister to readdress the problem. Go raibh maith agat.

Mr McCarthy:

On behalf of my Alliance Colleagues, I give a general welcome to the Bill. For too long the planning system has failed to operate for the good of all the people of Northern Ireland. The updating of planning law is long overdue - it should have been one of the first acts of the devolved Government.

My Colleague David Ford has already been involved in detailed discussions in the Committee for the Environment on various aspects of the Bill. He and other Committee members have much work to do to improve the Bill and to ensure that it becomes the best possible Act to set the terms for planning in years to come.

12.45 pm

As this is the Second Stage, I wish to put a few questions to the Minister. I have no doubt that some of them will not be answered to our satisfaction this morning, but I ask him to consider them seriously. The Minister has spoken on the issues about which we have concerns, so perhaps he will take my comments on board.

First, the biggest gap in the Bill is the absence of a third-party appeal system. The Minister and other Members have spoken on that matter. It is simply not acceptable for an individual who is refused planning permission to have a right of appeal, while objectors to the granting of permission have no right of appeal, apart from an expensive and legalistic judicial review. We all know who benefits from that. I do not wish to allow a neighbour with a grudge, but no objective reason for his or her objection, to delay the granting of planning permission in every case. We must achieve a balance, as none exists at present. Surely it is possible to devise a form of words that will allow a right of appeal for objectors who have substantial backing. For example, we could measure support by requiring a significant proportion of a local council to support the objectors or by requiring a certain number of signatures. If third-party appeals are not to be included in the Bill, when does the Minister hope to introduce such an appeal system?

Stronger enforcement powers are necessary. The details of the clauses show how deficient the law is. However, clause 12, as described in the explanatory and financial memorandum, mentions only some marginal financial implications. What on earth is the point of stronger enforcement powers if the Department does not have the resources to make use of them?

The procedures for listed buildings are known to be archaic and cumbersome. We know what has happened recently in Belfast. We need a better system than the Minister standing in the street crying, "Shame!" as the bulldozers do their work. I welcome the proposals for building preservation notices and temporary listings in clause 22. I hope that the Committee will ensure that those powers are as robust as they are in other parts of the United Kingdom and in the Republic of Ireland.

One of the principal concerns that many citizens have on planning issues is the preservation of mature trees. That leads on to the need to protect growing trees and saplings and to the protection of woodland, which includes small copses and units, and the scrub, brush and wild flowers that grow under the trees.

Mr ONeill:

Does the Member agree that the legislation does not make it clear what would happen if a site were purchased, sold on, cleared by the second sale and sold on again, and possibly sold on for a fourth time before a development application were made? How does the Department propose to include in the legislation provision for checking up on the land, for deciding penalties for desecration and for imposing those penalties?

Mr McCarthy:

I thank the Member for drawing that to our attention. We agree with his comments. The Minister listened and I am sure that he will answer the question appropriately.

Should there not be a presumption that all mature trees on a site for development will be preserved under a development plan until that development plan has been approved, rather than a presumption that anything that is not individually protected can be destroyed?

We must know more about the penalties and the requirements to plant replacement trees; otherwise there may be large financial benefits for people who cut down trees. That follows on from Mr ONeill's remarks. Will the Minister tell us whether his proposals will protect undergrowth in woods, which is so important to wildlife?

The Alliance Party supports the Bill in principle and welcomes the Second Stage. I hope to see the Bill strengthened at Consideration Stage.

Mr Watson:

As a Member of the Committee for the Environment, I apologise for the absence of the Chairperson and Deputy Chairperson, who had previous engagements. I thank the Minister for introducing the Bill. Members of the Committee for the Environment look forward to discussing the clauses of the Bill at Committee Stage, so I will keep my comments relatively short.

The Minister will be aware that the Committee has already had several detailed presentations on the consultation exercise that preceded the Bill and on the draft Bill. There will be a further presentation and discussion on major policy issues this Thursday with departmental officials. This demonstrates the importance with which the Committee views the legislation - and, indeed, all legislation - and its clear determination to come to terms with the detail of some complex legislation. For too long, the outdated and ineffective planning laws in Northern Ireland have failed to reflect the demands of a modern developing society, and this has been coupled with inadequate resources, lack of co-ordination between the various agencies in the former Department of the Environment and a lack of political resolve to address the real issues.

One major problem, given that the Bill is long overdue, is that so much is expected of it. Planning law is not only concerned with what may be built, where and when, and ensuring that what is built conforms to the permission given, but is also about giving vital support to those charged with the conservation and preservation of our built heritage. The forthcoming presentation by departmental officials, which is to be based on recent research at Queen's University, will focus on three important and relevant matters. The first is third-party appeals. For too long, the planning system has been biased - and I do not use that word lightly - in favour of developers, and those most affected are often left feeling helpless once a decision has been given. In previous presentations to the Committee, departmental officials have been anxious to explain the difficulties involved with the introduction of third-party appeals into the current planning system, and consequently their introduction into the Bill. The Committee appreciates fully that there may be difficulties, but members want to hear solutions. If third-party appeals work elsewhere, why can they not work in Northern Ireland?

Secondly, the Committee will wish to discuss fines with officials. The Bill will increase fines for those developers who commit the most serious breaches of planning law to a maximum of £20,000. From the outset, the Committee has questioned the inadequacy of fines, and it continues to do so. What kind of deterrent is a £20,000 fine to a developer who will make £1 million profit for breaching a planning law? The Department has told the Committee - and this has been reinforced by the Minister's words today - that a new culture will ensure that more lawbreakers are taken to a higher court where unlimited fines, and even imprisonment, can be imposed. I have seen no evidence of that and cannot see how the Bill, as it is worded, will change radically the Department's enforcement policy and practices.

The Committee will examine this aspect of the Bill very closely. It has been told that the new fines are the same as those in England and Wales and cannot be increased without the Secretary of State's approval. Will the Minister tell us why fines are being introduced that will mean little to those making huge profits? Will he also tell us what representations regarding facts and statistics about planning law abuse he has made, or will make, to the Secretary of State?

Finally, departmental officials will discuss with the Committee the introduction of a new offence that will make it illegal to start development before planning permission is given, or even applied for. All too often, developers move to demolish a building or level a site without planning permission. That must be stopped, and the Bill is the opportunity to do something about it.

We have again heard from the Minister on this, but the Secretary of State must be pressed to give his approval. What representations has the Minister made, or will he make, to obtain that approval? Although the Committee believes that the legislation is long overdue and must progress with all speed, its members have already identified some concerns with the Bill. We will have to examine how those concerns have been or will be addressed.

(Mr Deputy Speaker [Mr McClelland] in the Chair)

When the Minister came before the Committee in March 2002, we discussed a proactive approach to co-operating with him to deal with no less than five Bills coming from his Department. At that time, the Minister agreed to forward policy memoranda on Bills to the Committee as early as possible, and the Committee pledged full co-operation with the Department, subject to being fully satisfied with the terms of the Bills. That is still the Committee's intention. However, I can assure the Minister that the Committee will be both diligent and thorough in its consideration of the details in the Bill, as he would expect. If necessary, we will come back with amendments at Consideration Stage.

Ms Morrice:

Members are aware that this is a hugely important issue. Every MLA is aware of the local community's increasing frustration at how the planning process has operated in the past. The Bill is a vital change in updating that process. This is our opportunity to make our mark on something that affects every member of our community. We know that through the stack of letters on our desks.

Mr McCarthy said that the planning procedure to date has failed the local community. We agree; it must be changed, and it needs teeth. We welcome the Minister's attempts to do this, and we were very pleased to hear Mr Watson say on behalf of the Committee for the Environment that it will dedicate itself to scrutinising this and putting pressure on the Minister to ensure that the changes happen.

The most important thing in updating planning legislation is to change the culture of the legislation. Members have touched on that. We are talking about equality of opportunity; as Mr Watson said, planning legislation is in favour of the developers. Last week, I asked the Minister to detail the number of applications from developers that are successful on appeal; the number was extremely high. Nevertheless, the local community has absolutely no right of appeal. Why does the local community not have equal opportunity? This is about third-party appeal.

We do not at all accept that third-party appeal could bring unwanted delay. Development is progress, and progress should not be stopped short. However, if it is to the detriment of the desires of the local community, it is not valuable progress. The important thing is that equal opportunity be given to the developer and the local community in third-party appeal. Research is under way to consider how it may be introduced, but I fail to understand the reluctance I detect to third-party appeal. If it has been introduced elsewhere, why can that not be done here? I am tempted to say that it could even be introduced on a trial basis, but that would not work. We must accept that the local community needs a right to reply and a right to appeal. For example, in dealing with large development projects, environmental impact assessments are carried out. We ask the birds, bees, flowers and trees to see what effect it will have on them, but there is no community impact assessment to ensure that the neighbours and the local community are consulted in these stages of the development process.

That is an essential aspect of planning, and the Minister must take that on board. If the Environment Committee does not attempt to introduce amendments to allow for third-party appeal, we will do it ourselves. I assure the Minister that there will be a great deal of pressure, either from the Committee or from individual Members, to get provision for third-party appeals added to this legislation.

1.00 pm

Some Members have already mentioned demolition. We have all seen the effects of that, whether it is Ardmara in Bangor or Séamus Heaney's house. I have written to the Minister regarding properties in Demesne Road and Bangor Road in Holywood that are also at risk. We do not want to see the Minister on television again saying that it is a shame. There will be egg on his face at some stage if these demolitions keep occurring and nothing is done to change the legislation to prevent it from happening. The issue of demolition should be part of the planning application process so that developers cannot knock down buildings to ensure that planning permission goes through.

I welcome the increase in fines, although it will never be enough. Sometimes fines are drops in the ocean when they are increased by a couple of thousand pounds. I have a suggestion that might be useful. Some of the money raised from fines could go to voluntary environmental and heritage groups, such as Conservation Volunteers Northern Ireland, to bolster their highly valuable work. They alert us to what is going on, and their work should be rewarded in some way.

Spot-listing is one way of stopping demolition in advance. However, when the legislation was brought over here the reference to spot-listing was removed. Why was it taken out, and why can it not be slipped back in again? It should be a guaranteed factor in this legislation that the Minister can draw on to protect buildings.

I will draw my remarks to a close, as other Members want to speak. I turn finally to the principles of planning policy and the need to consult the local community and bring it on board. Play areas in large housing developments should be guaranteed. The Irish legislation guarantees that every hundredth house is converted into a crèche or something similar that recognises the value of children's play. We have estates such as Poleglass and Kilcooley with hundreds of families, and not one slide or one swing between them. That is a disgrace, and it must not happen again. Children's play areas must come high up on the agenda of any planning application for a large housing development.

There are examples of townscape character in the South. When you drive into a village you smile because of the colours and signage. Work has been done to make those villages aesthetically appealing to tourists, and that is important. We should remove the idea of town cramming and unsympathetic development. All that must be part and parcel of the culture of planning. In this devolved institution we have the ability to listen and react to the local community, and that is what it wants.

I put all my confidence in the Committee to ensure that the Minister, who is sympathetically disposed, will take those issues on board.

Mr McCartney:

The overwhelming majority of complaints to the Northern Ireland Ombudsman have related to planning. I therefore welcome this legislative attempt - belated as it is - to deal with some of the anomalies and ghastly gaps in planning law that have been the source of many of those complaints.

The Assembly is fortunate to have had such a thoughtful, practical and comprehensive contribution by Mr McGrady, who has a sense of reality about what can be done. I will develop some of the matters that he adumbrated.

Regardless of the difficulties, procedural or otherwise, that the introduction of third-party appeals may entail, most people affected by planning decisions have an overwhelming desire for that provision. Planning laws, like every other law, should be enacted for the benefit of those whom they affect; therefore, strong, clear and pressing considerations must be present before such a desire could be ignored in the legislation.

Suggestions have been made as to why third-party appeals should not form part of the legislation. The Minister's mind seems to be set against them, although we are to be treated to a consultation process before a final decision is made. It is surprising that detailed amendments by the Minister, or the suggestion of a consultation process, should take place now. Why were those matters not considered in detail long before the Second Stage? If changes were to be made, one would hope that every aspect would be considered in detail.

I will deal with the arguments against, and the merits of, third-party appeals. It is suggested that third-party appeals would interfere with the principles of existing legislation on such appeals and the planning process generally. Any reform or legislation to make improvements or to introduce benefits is bound to affect existing legislation; therefore, the argument that a necessary and much-sought-after reform should be objected to because it would change a system lacks merit.

The second question is that of delay. I do not suppose that third-party appeals will be made against the vast majority of planning approvals. They will be made in respect of decisions that affect a large section of the community and to which there is popular objection. Ms Morrice made the positive point that we have impact assessments about the birds and the bees, and flora and fauna. In the context of planning, the most important fauna are human.

I have often attended and been professionally involved in planning appeals where planners have produced a set of logical guidelines and principles to support their statement that they can do nothing about a development, despite the massive objection of the humans who will be most intimately affected by the decision. The present law does not require planning approval for demolition, so a developer can move into a zoned or residential area and demolish an Edwardian or a Victorian building, which may not be listed or of specific architectural or historical merit, but which is part of the fabric, atmosphere and age of the area. The building's demolition leaves a piece of open ground in an area where a developer is bound to get permission for a residential development.

The planners' only control over that is a collection of nebulous guidelines that the proportions of the new building must be roughly similar to those of surrounding developments. Permission for some apartments is then granted to the developer. However - and this is the nub of the matter - the builder builds the development but adds an extra floor comprising an additional six flats costing £250,000 or £300,000 apiece. That has happened in north Down; developers are making a killing. When local people object on the basis that there has been a breach of contract, there is a marked reluctance by Planning Service to instruct that the building be demolished. There is then much toing and froing, which the builder ignores, and, in 10 cases out of 10 - not nine out of 10 - he is given retrospective permission. At that stage the developer has made a killing, and a coach and four have been driven through the planning laws. The Assembly must think carefully before ignoring third-party appeals or adhering strictly to planning decisions.

Third-party appeals would be relatively few, and it would be easy to legislate that, in order to gain a right to such an appeal, a person must present a prima facie case. Under those terms, only where a prima facie case is demonstrated would a third-party appeal be allowed. That litmus test would eliminate many of the fears that envious or vindictive neighbours would, willy-nilly, make third-party appeals.

It might also be legislated that costs may be awarded where a third-party appeal is lost and an inspector decides that the case never had merit. Those are not the only methods, but such provisions might remove many of the Minister's fears about third-party appeals.

1.15 pm

Some Members who have spoken have heavily canvassed the issue of fines. I endorse the frequent suggestion that the fines are inadequate, even at their present limit. Developers can get £250,000 or £300,000 for an apartment, and if they can get a further four apartments by adding an extra storey, that is very big money. The fines are relatively innocuous in proportion to that and would not deter anyone.

The other point I want to make is about the relationship between developers and planners. Developers are there every day. In some cases in which I have been involved, there has been such a multiplicity of plans that the average person going to inspect them cannot understand them unless he brings an architect who has half a day to spend on them. Members must be careful about dismissing the introduction of third-party appeals, because there is a suggestion that developers have a big "in": they are professionals; they know what is required; they have existing relationships with planners; and they often get away with things that an ordinary individual would not.

There is a presumption in the planning culture that if developers are providing employment, putting money into the economy and doing something that has a veneer of public benefit to it, such as additional housing, they should get planning permission. That sort of culture must end.

I endorse what Mr McGrady said about what is not in the Bill. There is nothing in it about masts. Planning should be for people who live in communities. It is not good enough not to pay strict attention to what a significant number of ordinary people feel about the possible dangers of radiation from masts. That should be provided for in the Bill. Am I being cynical in saying that once again this is a question of big business? Vodafone, Orange or whoever puts up the masts have a subliminal clout that the rest of us do not have. While I support the Second Stage of the Bill in principle, there are worrying omissions and failures to address various matters.

The Chairperson of the Committee for the Environment (Rev Dr William McCrea):

I apologise to the Assembly and the Minister for being unable to be here at the beginning of the debate, but the Minister for Social Development was in my constituency this morning. As I was unable to hear the Minister's opening comments, I will keep my remarks brief. However, I will read, with great care, what he and other Members said in that part of in the debate. It is important for the Committee to consider carefully the views of Members who are not members of the Committee and cannot make their views known there. I will ensure that the Committee receives a copy of the record and that it gives due recognition to what is said.

No one would say that all is well and that we have effective planning laws that reflect the demands of our society. Many matters need to be brought to the attention of the House, and the Planning (Amendment) Bill ought to consider other matters that the Minister and the Department have not taken into consideration. I will confine my remarks to three areas. Ms Morrice and Mr McCartney touched on them, as did others.

I want to make it clear that the Minister cannot duck the question of third-party appeals, nor will the Assembly allow him a way to do that. The Committee for the Environment fundamentally supports the necessity for third-party appeals, and we have been strong in our representation to the Department, as the previous Minister and the current Minister both know. The issue cannot be put on the long finger. Developers have priority over the community under current planning legislation, and that cannot be permitted to continue.

Mr McCartney said that when developers are mentioned we hear about how they provide employment and invest in the economy - and rightly so. No one in my Committee wants to stop developers doing anything that will benefit the community. However, they are not the only ones putting something into the local economy and providing employment; the people in the community are also putting a lot into it. Let us never forget their value and commitment to their areas. It is vitally important to ensure that the rights of the ordinary citizen in a community are taken into consideration. If an applicant is refused, he has the right to appeal. However, if a community feels that its rights are being trampled over, it has no right of appeal.

I gather that the Minister said that he is not taking forward third-party appeals at this time. Several Members have drawn that to my attention. The rights of individuals can be violated, and they ought to have the right to appeal. This issue, whether pursued by my Committee or by individuals, will not go away. It will be on the agenda, and the Assembly will have the opportunity to give its opinion.

If the Minister had listened to the will of the House in past debates, then he would have introduced the right of appeal in this Bill. Even at this late stage, the Minister should accede to that will. If he does not accept that it is the will of the House, then we should put it to the test in a democratic fashion through a vote. This is a live issue, and it will be dealt with in the Assembly, whether through the Minister's intervention or through the intervention of others. I hope that that gives some assurance to Members that the matter is being taken seriously.

I want to deal with the level of fines being suggested in the Bill. Those fines are as nothing when measured against the high profits that developers can make by breaching planning law. The answer will come that cases can be taken to the Crown Court, where there is no limit on the fines that can be imposed. If that is so, and if the Department believes that it is a serious issue, then local courts should also have the right to impose fines relevant to the huge profits being made.

What is £20,000 to a developer who is probably making £1 million from his development? It is absolutely nothing. He laughs all the way to the court and out of it, and he laughs at the community, which feels aggrieved by what has been done. Serious consideration must be given to this. The Minister and his officials have told the Committee that the Secretary of State would have to agree to a large increase in fines. If that is so, the Committee requests that the Secretary of State be approached. Northern Ireland has particular needs, so if fines cannot be increased without the Secretary of State's intervention, he should listen to the will and desire of the House and do something about it.

There must be proper enforcement. I am told that the Minister said that more staff would be employed in the Department's enforcement section, which has an abysmal record. There must be real enforcement, because many people in Northern Ireland think that they can breach planning law and that nothing will be done about it.

Mr McCartney said that there was hesitation in forcing people to demolish buildings. I have not found that to be the case with regard to ordinary people, who seem to be faced with greater threats than those who have financial clout. I want to see building development in the Province, and I want to see planning permissions being granted. However, Planning Service must be sensitive to particular areas and to older buildings that are being pulled down, with new buildings being erected in their place. New buildings are often out of place and are more of an eyesore than the original good-quality buildings. That has been the scenario in Belfast recently.

The Committee will listen carefully to what the Department has to say. However, the Minister is aware that the Committee has a mind of its own and will challenge the Department. If the Department is not willing to yield on matters on which the Committee has strong feelings, the Committee will not be behind the door in telling the Minister and the Department what it thinks. If it must bring the matter before the House, it will be happy to do so.

Mr Nesbitt:

I am trying to ensure that when I move the Dispatch Box I do not cowp or demolish my glass.

Rev Dr William McCrea:

Do you have planning permission to put the glass there?

Mr Nesbitt:

I have placed my glass where others have placed theirs, so we are in accord with one another. It is good to note that the Chairperson of the Committee for the Environment and the Minister of the Environment are acting in harmony and accord.

Ms Morrice:

There may be a third-party appeal.

Mr Nesbitt:

Someone may wish to lodge a third-party appeal on where the glass is situated. However, that is a serious matter with regard to the Planning (Amendment) Bill. Eight or nine Members have spoken, and much concern has been expressed about inadequacies in the planning system in Northern Ireland.

I am mindful of economist John Simpson's words in the business section of the 'Belfast Telegraph' some weeks ago that everyone has something to say about Planning Service, just as everyone has something to say about the weather - but at least, on some days, the weather is good. That gave food for thought, and I referred to it at the start of my address. Planning Service has been under pressure and needs more resources. There are difficulties that must be addressed, and I am not ducking them, as I said in my opening remarks.

I thank Mr McGrady for his comments about the empathy that I have shown. I reiterate, in the presence of the Chairperson of the Committee for the Environment, who was not present earlier, that I empathise with many of the comments that the Committee has made to my officials and to me.

Mr McGrady mentioned the House of Commons Select Committee on Northern Ireland Affairs inquiry into planning in 1995, and that many issues dealt with then are being discussed again. I am conscious of that. It is mentioned in the paper that was sent to the Environment Committee today.

1.30 pm

Mr McGrady also mentioned urgency and immediacy. He said that he was unsure about the scope of enhanced provisions to prevent demolition because the Department will have to quickly identify important buildings that might be demolished. He talked about the listing of buildings. He said that it is fine to have a new rule preventing demolition, but that such orders must be enforced, because once a building has been demolished, nothing can undo it.

Contrary to Ms Morrice's belief, spot-listing is contained in the Bill. I am not sure where the Member heard that it had somehow been taken out. It is not out. Spot-listing is clearly provided for in the Bill.

Mr McGrady stressed that it is fine to have the Bill, and fine to have these provisions - as long as one uses them and knows when they must be used. Surveys have been carried out. The first, conducted in 1970, was on a wing and a prayer. It ended up comprising of just one photograph of a building because resources were not available.

The problem with listed buildings is threefold. First, we do not know the status of some of those buildings. Secondly, we do not have the resources to deal with them. Thirdly, we do not have the enforcement measures to deal with them. More resources are needed, and we must be clear about those buildings that can or cannot be listed.

I mentioned that point in an article that I wrote in the 'Belfast Telegraph', in which I invited people in Northern Ireland who feel that there is a building that could, or should, be listed to notify the Department. I was responding to and empathising - if I may use that word again - with that paper's editorial, which commented that we must work together as a community to make sure that our built heritage is protected. [Interruption]

My time is limited. I am not being disrespectful to Mr McGrady. [Interruption].

If I have as long as I like, I will give way to Mr McGrady, but I will not give way ad nauseam to all and sundry.

Mr McGrady:

It has been so long since I spoke that I can hardly remember what it was about.

The Minister said that it will be possible to list buildings to prevent their demolition. Is he conscious that listed buildings are being demolished and virtually no action is being taken?

Mr Nesbitt:

That may be the case. I cannot comment on specific examples. However, I have stressed that part of the Bill is to ensure greater rigour of enforcement. Penalties will be made very clear. The Department and I are serious in our intentions; not only about built heritage, but also that the planning regime is clear and transparent, and that those who abide by the law will have a speedy decision while those who breach the law will be swiftly penalised. I abide by my opening comments to that effect and will ensure that they are reflected throughout this Bill.

Mr McGrady mentioned third-party appeals. That issue came up quite often. He also hoped that the three documents that have been issued to the Environment Committee would be made available to the Assembly. That is a reasonable request. It has taken some time for officials and myself to deliberate those issues. Indeed, we worked on them over the weekend to ensure that we got to grips with their nuances in preparation for this debate. The papers were sent to the Committee today, and other Members should also have them.

Mr McGrady said that I have set my mind against third-party appeals. I am less sympathetic to, and not completely persuaded by, third-party appeals. However, I want more consultation. He said that all political parties and most district councils want them. I wish that Mr McCartney were here, because he said that there was a desire for third-party appeals, regardless of their difficulties.

This is not an exact analogy, but many people have a desire for speed and cars that can travel at 160 miles an hour. However, the fact that people have a desire for something does not mean that the law permits them to realise that desire.

I am sorry that Mr McCartney is not present. His criterion of desire is not -

The Chairperson of the Committee for the Environment (Rev Dr William McCrea):

The desire to speed is irrelevant; that is an illegal desire. Mr McCartney referred to the will of elected representatives and the public. The Department must get on with reform, because the desire is not illegal, and it should have the backing of the Department.

Mr Nesbitt:

I am dealing with the choice of words, which are important to lawyers, and, therefore, to Mr McCartney. He used the term "desire"; I said that desire alone does not justify an action. All aspects must be assessed. However, I said that I wished to discuss the matter further with the Committee and others.

Mr McCartney said that the phrase "no legal imperative" was an odd one. The legal imperative to which I referred was European Convention law, whereby a body outside the jurisdiction of the United Kingdom could dictate how something must be done, as with European Directives, which when passed through certain procedures, automatically become Northern Ireland law. That legal imperative has been tested in the courts, and we have not contravened it.

Mr McCartney said that it was strange that mobile phone masts were not included in the Bill, and he spoke of their dangers. Some Members must have a mental block; that matter was dealt with. Some Members said that we had an obligation to bring forward the matter; it was brought forward. The Planning (General Development) (Amendment) Order (Northern Ireland) 2002 came into force on 21 June 2002, and copies are available in the Library. Full planning permission for mobile phone masts is required. We followed the Stewart principles on precautionary measures, and Policy Planning Statement No.11 made clear our modus operandi in respect of telecommunication masts. Why do Members say that we have omitted to deal with mobile phone masts, when the reverse is true?

I thank Mick Murphy, a member of the Committee for the Environment, for his comments on our progressive approach to trees and other matters. There is much good in what has been said, as well as some bad. Trees should be replaced like for like. Another Member mentioned the protection of the undergrowth, the habitat of birds and wildlife, but we can protect only trees. Mr ONeill, who is not present, asked whether a tree preservation order would continue to apply if the ownership of the land changed. If trees are removed from an area protected by a tree preservation order, the trees must be replaced, and the order still applies. The trees cannot be removed to create space for development.

Mr Mick Murphy and Mr McGrady stated that, given that third-party appeals are provided for in the Republic of Ireland, they should be included in this Bill. I am not against implementing measures because they are law in the Republic of Ireland. In fact, research issued to the Committee for the Environment about practice in the South and in Northern Ireland projects that, contrary to Mr McCartney's belief, there could be between 500 and 700 more cases a year in Northern Ireland, costing £1 million. In the South, cases are subject to an 11-month delay because of third-party appeals.

The research found that, by involving district councils, the North has a more consultative-deliberative planning process than does the South. We are therefore not comparing like with like, and we must deal carefully with the issue of third-party appeals.

I thank Mr McCarthy for remaining in the Chamber.

Mr Ford:

Mr McCarthy has manners, unlike some Members.

Mr Nesbitt:

I did not catch what the leader of the Alliance Party said. However, having made a comment, does he now resile from repeating it? That is most unusual.

A Member:

It was a complimentary comment.

Mr Nesbitt:

If it was a compliment, I accept it, but only because a Colleague of mine on my left says so - in case it was not a compliment.

I agree with Mr McCarthy that the Committee has much work to do. We all do. I empathise with many of the Environment Committee's recommendations, and my officials and I want to work with it.

I note the extension to 17 October 2002 that Rev Dr William McCrea seeks for the deliberation of the Bill. I say yes; we have weeks in which to work together to achieve a resolution based on evidence, not emotion.

Mr McCarthy also said that the absence of third-party appeals, and the fact that objectors have no right to appeal, is unacceptable. I concur that there must be balance and that we must avoid vexatious claims from people on neighbouring properties. It is a complicated process, and that is why I wish to issue a consultative document to determine the best way forward. Mr McCarthy stated that listing powers are useless if adequate resources are not available. Again, I agree with him, and for that reason I will target enforcement for resources.

Mr Watson referred to a planning system that is biased in favour of developers. I want a system that is biased in favour of law-keepers, not lawbreakers, regardless of whether they are developers or Mr and Mrs Joe Bloggs in the country. I want the planning system to be efficient and effective for law-keepers; and, for lawbreakers, I want a service that will ensure that penalties are imposed speedily. Therefore if the planning system is biased in favour of developers, I trust that it will not be in the future. It is a simple matter of right and wrong. It is a question of having a law that reflects the Assembly's wishes and of ensuring that they are enforced rigorously.

Mr Watson stated that fines of £20,000 are not a significant or adequate deterrent and that he has seen no evidence that the new measures will work. To determine whether the new measures will work, we must implement them. It is therefore illogical for Mr Watson to claim that there is no evidence that they will work.

1.45 pm

He said in his conclusion that the Committee would be diligent. I concur that the Committee has been diligent, and I have no doubt that it will continue to be so.

Ms Jane Morrice said that Members would themselves propose amendments providing for third-party appeals if others did not. My advice is not to do that. Those points have been covered. She suggests that fines should return to the voluntary sector - that the money raised should be repackaged and passed on to that sector. That request is interesting, and the Minister of Finance and Personnel would also find it interesting.

I have already covered Ms Morrice's point where she alleged that someone had removed the line on spot-listing. I wrote "No, definitely not" in my notes. It was not taken out. I agree with Ms Morrice when she said that cramming in towns, and other such issues, must be dealt with. We do need a new culture; we need change, and we also need to know people's views. However, I was concerned when she said that she would put her trust in the Committee, because I hope that she also has some trust in me and in what I am doing. Working with the Committee, we will deal with the issue.

I have noted carefully what Mr McCartney said. Indeed, I note what all Members say, but Mr McCartney is judicious and correct in his use of words, I trust. He referred to third-party appeals, and he said that it is quite clear that, regardless of the difficulties, there is an overwhelming desire for such third-party appeals. That is a criterion alone. I have already referred to the use of the word "desire" in my answer.

Ms Morrice:

Third-party appeal is interesting, because the Minister compared our legislation with that in the South, referring to the delays, and so forth. He said that there is more consultation in Northern Ireland than in the South. He cited the role of local government in that consultation process. Is it not true that even if an entire council opposed a development, it could still proceed? What value is the consultation process if it serves no end?

Mr Nesbitt:

That is the position to a certain extent, but I am the Minister who is accountable for decisions. The council is consulted. De jure, I make all the 24,000 decisions that must be made in the year; de facto, I may make some decisions on significant or contentious issues.

Ms Morrice may recall that I mentioned the review of public administration. On other occasions the House has recommended that we wait for the outcome of the review of public administration, as it did in the case of the Local Government (Best Value) Bill. As a result of the review of public administration, it may be that the authority for deciding on these matters would reside with a district council or its replacement. That could be the elected body to make the decision, and, therefore, a third party might take that decision out of its hands to a planning appeals commission. That highlights the difficult issues that we must address, assess and assimilate. As I said, we base our decisions on evidence, not emotion.

Mr McCartney also said that I said that third-party appeals would interfere with legislation. He then said that the argument that third-party appeals may interfere with legislation lacks any merit. Let me make it clear - and the record will show, as I repeat it - that when I referred to legislation, I said that the impact of legislation would be in the planning process and the operational efficiency of planning. That is the outcome of changing legislation. Of course we can change legislation, and we have the authority to do that. However, we must weigh the impact and the merit of changing the legislation. I simply point out that changing the legislation will have a significant impact on the planning process and its operational efficiency.

Rather than my argument lacking merit, it has merit. A judgement must be made. The Assembly is about balancing judgements against competing demands. Mr McCartney stated that

" in 10 cases out of 10"

the developer is given retrospective planning permission and thus builds bigger. Mr McCartney also stated that

"The Assembly must be careful in ignoring third-party appeals".

I do not want to see that happening; the Assembly must ensure that the law is adhered to.

Mr McCartney also spoke about mobile phone masts. I cannot understand his statement that there is nothing in the Bill about masts. We have already dealt with it.

I accept Mr McCrea's apology for his absence at the start of the debate. When I stand to speak, I check that the august Chairman of the Committee for the Environment is present, as his presence always makes the debate more interesting. I said to myself, "William is not here today", but I am glad that he appeared later for the final analysis.

Mr McCrea said that I cannot duck the question of third-party appeals - I am not ducking the issue. I have referred to significant matters that must be addressed. I am not putting them on the long finger. Mr McCartney and Mr McCrea also said that developers seem to have priority status. I do not want that to be the case. Mr McCrea also said that the value of the ordinary citizen should not be forgotten. I agree entirely. The matter is a question of right and wrong, and of ensuring that the law is implemented - it has nothing to do with the size of the development; whether it be a small bungalow or a multi-faceted development.

Mr McCrea asked whether I should meet the Secretary of State. I have had initial discussions with him. We are progressing the matter positively through the Committee's deliberations and through my meetings with my officials. Those meetings will run parallel to discussions with the Secretary of State.

The final three words that I noted down are those of William McCrea. He said that we "need real enforcement" - I agree entirely.

Question put and agreed to.

Resolved: That the Second Stage of the Planning (Amendment) Bill (NIA 12/01) be agreed.

ANNEX 13

LETTER FROM:
THE MINISTER
DEPARTMENT OF THE ENVIRONMENT

24 June 2002

I am aware that during recent presentations by my officials to the Environment Committee on the Planning (Amendment) Bill, your Committee expressed concern that no provisions have been included in the Bill to introduce third party appeals or to make it an offence to commence development without planning permission.

At the presentation on 30 May 2002 your Committee also indicated its view that the proposed levels of fines within the Bill were too low. In particular, the Committee suggested that the levels of fines in the magistrates' court should be higher, or, indeed, that there should be no maximum level, thereby leaving it to the magistrate to decide the appropriate level of fine for any particular case.

I empathise with your sentiments and actively encouraged the preparation of the attached papers. I will summarise the main issues as follows:-

Third Party Appeals (annex a)

The policy paper on this issue refers to recent Queen's University research and identifies a wide range of issues that will require careful consideration in advance of any decision on whether third party appeals should be introduced. I have noted the Committee's concerns, but strongly believe that this major issue should be the subject of full and detailed public consultation and impact assessment. The Department will continue to actively pursue the many complex issues involved and I look forward to engaging further with your Committee on this important subject.

Development Commenced Without Planning Permission (annex b)

It is my view that the problems caused by unauthorised development which starts without proper planning permission, need to be addressed and that appropriate deterrents need to be put in place. This could of course be addressed through an amendment to the Planning (Amendment) Bill and I am considering that option. However, the paper makes it clear, that any such amendment would be subject to Executive Committee agreement, as well as Secretary of State approval in relation to the creation of a new offence. I wish to take your Committee's views on the details of this and I will ask officials to prepare a detailed case for submission to the Executive Committee and the Secretary of State seeking the necessary approvals.

Levels of Fines (annex c)

You will note that this paper outlines the levels of fines proposed in the Bill and, in particular, the provisions that will allow conviction on indictment in the Crown Court, where there would be no limit on the level of fines that the Court could impose. The paper describes the structure of the court system in Northern Ireland and, in particular, the role of the magistrates' court. You will note that the paper concludes that unlimited fines, as proposed by the Committee, would not be appropriate, given the role of magistrates' courts. I do, however, recognise that the fine level of £20,000 proposed in the Bill, was originally introduced in GB in 1991, and that the effects of inflation should be taken into account in setting a new maximum fine level. An examination of inflation rates since 1991 suggests that a figure of perhaps £30,000 would be appropriate in 2002/03. I wish to take the views of the Committee on the issues raised and I will ask officials to prepare a case to the Executive Committee and the Secretary of State proposing higher fines on this basis.

Finally, I am grateful to the Committee for the comments and recommendations it has made in relation to the Planning (Amendment) Bill. We have considered these carefully and look forward to the Committee's further comments on the policy papers attached.

DERMOT NESBITT MLA
Minister of the Environment

ANNEX A

THIRD PARTY APPEALS AGAINST PLANNING APPROVALS

Background

1. The case for introducing third party appeals has been considered on a number of occasions in the past, both for policy reasons and in the context of the requirements of the Human Rights Act and the European Convention on Human Rights (ECHR). In relation to Human Rights, legal advice to the Department, following the House of Lord's judgement on the Alconbury case, was that the planning process, with some administrative adjustment, together with the availability of Judicial Review, should satisfy ECHR requirements. The administrative adjustments proposed, introducing greater transparency into the planning process, have been made.

2. In relation to the policy case, the Environment Committee, during its discussions with officials on the Planning (Amendment) Bill, has expressed concern about the absence in the Bill of any proposals to introduce third party appeals. In subsequent correspondence, the Committee has made it clear that it is keen to see third party appeals introduced.

Policy Analysis

3. The Department has considered the subject of third party appeals on a number of occasions and, in 2001, commissioned research from Queen's University Belfast (QUB) on the possible implications for Northern Ireland's planning system of the introduction of third party appeals. In addition, further research was commissioned recently from QUB to examine the third party appeal systems available in other jurisdictions within the European Union; the scope/availability of these systems to third parties; and details of any statutory restrictions applied. All of these research projects are relevant and should help to inform discussion.

Northern Ireland Affairs Committee Report on the Planning System - 1996

4. Following its examination of the Planning system in Northern Ireland, the House of Commons Northern Ireland Affairs Committee published a Report in 1996. This Report made a number of recommendations relating to the Planning system, including the recommendation that Government should consider opening access to appeals by third parties. In its response to the Committee's Report, the Government concluded that it was not persuaded of the value of allowing third party objectors to appeal. The arguments cited by the Government included: -

• The introduction of third party appeals would represent a radical departure from the key principles on which the Planning system was founded. The Government response indicated that the purpose of the Planning system was to regulate the development and use of land in the public interest - it did not exist to protect the private interests of one person against activities of another.
• Third party appeals would add delay, uncertainty and costs to the development process and would be open to abuse.
• Article 31 of the Planning (Northern Ireland) Order 1991 already made provision for the calling of Public Inquiries to consider major development proposals, including those affecting the whole of a neighbourhood.
• Third party appeals would be too popular an avenue for disappointed neighbours or others wishing to oppose planning applications.
• One of the likely consequences of giving appeal rights to third parties would be to transfer the final decision on controversial planning applications from Ministers to the Planning Appeals Commission.
• Third parties already had other options open to them if they wished to challenge the Department's handling of planning matters.

Departmental Working Group Report

5. In late 1999, the then Department of the Environment established a working group to examine the policy case for introducing third party appeals in Northern Ireland. The project approach included discussions with the Planning Appeals Commission (PAC); DOE (Dublin); An Bord Pleanala (the appeal body in ROI); and senior professional planners within Planning Service.

6. The conclusions reached were that third party appeals had served ROI well, but that delays and increased costs were a consequence of third party appeals and their introduction in Northern Ireland would have significant resource implications for both Planning Service and the PAC and would require a comprehensive review of the planning process.

7. In addition, the Departmental working group report highlighted the significant procedures already in place within the planning system in Northern Ireland which enabled third parties to make representations, lodge objections and challenge planning decisions.

8. The working group concluded that third party appeals would create delay and uncertainty within the planning process, would have significant resource implications and should not be introduced.

QUB 2001 Research

9. In September 2000, the Department agreed to part-fund a QUB research project into the possible implications for the planning system in Northern Ireland of introducing third party appeals. The project also examined the operation of third party appeals in the Republic of Ireland (ROI). The research concluded that:

• third party appeals are generally well accepted by ROI society;
• third party appeals have a very high success rate;
• appeals often result in delay and additional costs to applicants; the research indicated that the average delay was 11.4 months;
• almost all major applications become subject to third party appeal with decisions being made by the appeal body, rather than elected representatives;
• the availability of third party appeals has resulted in an adversarial, rather than participative approach, in reaching planning decisions;
• if third party appeals were introduced in Northern Ireland, between 600 and 700 additional appeals per year could be anticipated;
• there would be a significant resource impact on Planning Service and the Planning Appeals Commission (PAC).
• substantial legislative change would be required to introduce third party appeals in Northern Ireland;
• a comprehensive review of the planning system in Northern Ireland would be required, given the high levels of participation already present in the Northern Ireland system.

10. The report made no firm recommendation as to whether third party appeals should be introduced in Northern Ireland. It did suggest, however, that any decision to introduce third party rights should be part of a wider fundamental review of the planning system.

11. The Department considers this to be an important point, since simply adding third party appeals to the existing planning system, with its high levels of public participation and consultation in the early stages, would significantly lengthen the planning application process. A review of the entire process, with specific focus on whether the current levels of consultation and participation could be maintained, would, therefore, be important.

QUB 2002 Research

12. This research, completed in early June 2002, has provided useful information on existing models of third party appeals operated in other EU jurisdictions.

13. The research findings show that third party appeals systems are operating in a number of European Countries but in a wide variety of forms. This variety stems from a number of factors, e.g.: -

• Time Limits. The time limits for making an appeal can range greatly;
• The body to which an appeal can be made. The body can be the authority that made the decision or a higher body.
• Rules of Standing. Appeals may be open to anyone or may be subject to a test of standing. There are a number of tests that can be applied and these include:

• Type of Decision. Appeals may be available on the basis of a building permit (or permission), or legally binding plan that allocates development rights. Appeals may be based on the decision-making procedure, or the substantive basis of the decision. Appeals can be made against any decision issued by the Planning Authority or may be restricted to certain decisions only. The restrictions include: -

The findings suggest that considerable work would be necessary to devise a system of third party appeals. This would have to address issues such as policy objectives, scope, the types of decisions to be covered, the means of restricting access, time limits, and how third party appeals should be integrated into the existing planning system.

Costs/Benefits of third party appeals

14. This section outlines the key arguments for and against the introduction of third party appeals. The analysis is informed by the QUB and Departmental working group research projects. The case for introducing third party rights of appeal was also considered both by a previous Northern Ireland Assembly in 1983, and, as indicated earlier, by a House of Commons Northern Ireland Affairs Committee in 1996. Although, in 1983, the then Assembly supported the introduction of third party appeals, the then Department of the Environment concluded that third party appeals would have significant resource implications, would introduce uncertainty and delay into the planning system and should not be introduced. In 1996, the Department reached the same conclusion in relation to the Northern Ireland Affairs Committee recommendations.

Benefits

• Third party appeals would tend to be welcomed by environmental groups, residents groups and the general public, in so far as they wish to extend their rights as objectors to development. They would also probably be supported by some District Councils and other elected representatives, though it is a matter for conjecture whether this preference would continue to apply if planning powers were transferred to local government.
• A third party right of appeal would provide objectors, who felt that Planning Service had not properly considered their views, with an alternative means of challenging planning decisions.
• Would be perceived as remedying an inequity (disappointed applicants can appeal to the PAC, objectors cannot).
• Developers, faced with the possibility of a third party appeal might be more willing to engage with third party objectors to produce more balanced and acceptable developments.
• The ROI experience has suggested that the availability of a third party right of appeal has resulted, on occasions, in important appeal decisions, which have safeguarded the environment.

Disadvantages

• An additional 600-700 appeals per year could result. This would have resource implications for both Planning Service and the PAC, estimated at some £1 million per year.
• The need for additional professional resources could create serious recruitment difficulties.
• Some delay and uncertainty in the planning system would be unavoidable. For example, a developer could not activate a planning permission until the period during which a third party appeal could be made (probably four weeks) had expired. If the decision was appealed, no action could be taken until the appeal was determined. This could take up to six months or, perhaps, longer. The ROI experience suggests that the average delay from a third party right of appeal is 11.4 months.
• Significant additional costs to all parties involved in a third party appeal, for example, the costs associated with legal representation and, in the case of applicants, the cost of delayed development.
• Likely to be opposed by development and business interests.
• It is possible that any additional delay and uncertainty would act as a disincentive to developers. The possible impact of third party appeals on the pace of development could cause concern to the business/development sector. Indeed a prolonged planning process caused by third party appeals could result in delays and costs to developers which might be perceived by developers as introducing a new element of uncertainty which could adversely affect investment in property development, particularly in our towns and city centres. With this in mind, the Department believes that further research is needed into the potential economic impact third party appeals might have on Northern Ireland's economy and inward investment opportunities.
• an initial examination of the replies to the Department's consultation paper "Modernising Planning Processes" suggests a mixed response with business, industry and commercial groups opposed to third party appeals and community groups, individuals and some District Councils in support.
• could be used by third parties simply to delay development. In ROI, the government has been concerned that developers are being held to ransom by objectors seeking payment in return for their objections being withdrawn. In response, new legislation in ROI has sought to restrict the right to bring forward a third party appeal, by restricting appeals to those third parties who made previous representations in advance of the planning decision, and by introducing a fee for making a representation.
• could hinder current efforts to improve efficiency within the planning process and it would be in tension with PfG aspiration for more streamlined planning system.

Adequacy of current procedures

15. There are already significant procedures in place to assist third parties to make representations, lodge objections and challenge planning decisions:-

• the neighbour notification scheme ensures that third parties close to a development are made aware of a planning application; third parties are also alerted by way of public advertisement;
• third parties are able to make representations or submit objections at planning application stage;
• at District Council consultation stage, third parties are able to lobby Councillors to object on their behalf;
• in the case of Article 31 applications, the Department is able to call for a public inquiry to enable debate about major development proposals;
• at Development Plan stage, interested groups and individuals have the opportunity to make representations in relation to draft development plans and attend public inquiries;
• where a third party is unhappy with a planning decision on a point of law, he/she may apply to the Courts for Judicial Review;
• where a third party is unhappy with the way in which the Planning Service has handled a planning application, he/she may refer the matter to the Parliamentary Commissioner for Administration.
• In addition, Planning Service has reviewed its Development Control procedures within the context of the Human Rights Act, and has introduced greater transparency into the planning process, thereby creating further opportunities for third parties to access the planning system and make representations.

The above indicates the level of measures in place through which third parties can express their objections and concerns in relation to proposed developments and the Department considers all such views when making its decisions. The Department has a continuing commitment to enhancing the ways in which applicants, third parties and objectors can interact with the Planning Service.

GB Position

16. In England, the Department for Transport, Local Government and the Regions (DTLR), in its Planning Green Paper - "Planning: Delivering a Fundamental Change"- makes it clear that it is not persuaded by the arguments for a third party right of appeal.

17. In the paper, DTLR suggests that third party appeals could add costs and uncertainties to planning, and indicates that it believes that the right way forward is to make the planning system more accessible and transparent and to strengthen the opportunities for community involvement throughout the process.

18. A review of other consultation papers covering possible changes in planning within Scotland and Wales has confirmed that this view is consistent with the position being adopted throughout GB.

Third party appeals in the Republic of Ireland

19. Although third party appeals are available in ROI, it should be noted that, in ROI, the level of participation at planning application stage is less comprehensive than in Northern Ireland, where there is considerable opportunity for participation, including current District Council consultation arrangements. The lower level of participation in ROI, heightens and supports the need for third party appeals there. This is a view endorsed by the 2001 QUB research study. Indeed, the QUB Report went on to suggest that any decision to introduce third party appeals in Northern Ireland, would require a comprehensive review of the current planning system. The report commented that any attempt to introduce third party appeals without such a review could cause long-term damage to the planning system. The 2002 QUB research has reinforced this point.

Options for Third Party Appeal Systems

20. A review of possible different models of third party appeal systems illustrates the many policy issues which would have to be addressed in the context of any decision to introduce third party appeals. A wide range of factors would have to be considered. For example:

• A need to establish clearly the policy objectives of any decision to introduce third party appeals. These objectives would dictate the main features and characteristics of any system that was to be introduced.
• A wide range of options for restricting numbers and reducing the possibility of vexatious appeals -

• Unrestricted
• Restricted to where there has been a departure from an Area Plan
• Restricted to major projects
• Restricted to projects with potential environmental impact
• Restricted by a test of standing; owners/occupiers of adjacent sites; individuals directly affected by the proposal, etc.
• Restricted to specific "watchdogs" groups

• Appeal Body - who should hear third party appeals?
• Types of decisions?

• Restricted to planning applications only
• Extended to include other decisions i.e. Listed Building consents, reserved matters applications, TPO consents etc.

• The timescales to be applied under any system of third party appeals would also have to be considered.

21. In addition, consideration would also have to be given to whether or not Article 31 decisions on major planning applications would be subject to third party appeal rights. The effect of this would be to effectively transfer decision-making on major planning applications from an elected Minister to the appeal body.

Review of Public Administration

22. The review of public administration will examine the administration and delivery of public services in Northern Ireland and the possibility exists that at least some planning functions could return to District Councils. The objective of any such transfer of functions would be to place planning decisions, which have important local impacts, under the control of democratically elected and accountable local government. Any proposed system of third party appeals would, therefore, have to be considered within the context of any administrative or organisational changes that might emerge relating to the administration of planning. In particular, the desirability of transferring a body of planning decisions from locally accountable politicians to the PAC would require careful consideration. This suggests that any attempt at this time to formulate and introduce a system of third party appeals may be premature.

Conclusions

23. His paper has identified a wide range of issues that would require careful consideration in advance of any decision on whether third party appeals should be introduced.

24. The paper indicates clearly the fundamental change that would result from a decision to introduce third party appeals into the planning system. At this time, the Minister is not persuaded of the merit of introducing third party rights of appeal given the potential impact on the existing planning process, the speed at which planning applications could be decided and given the increased delay and uncertainty that would result. The Minister is also concerned about the wider potential impact that the introduction of third party appeals might have on the Northern Ireland economy in terms of lost investment, jobs not gained etc.

25. Whilst the Minister fully recognises the desire to facilitate and protect third party interests, there are many arguments both for - on the grounds of natural justice - and against - based on the potential implications for the planning process and the possible economic implications for Northern Ireland.

26. Accordingly, the Minister believes that this major issue should be the subject of full and detailed public consultation and impact assessment.

27. The Department is continuing to actively pursue the many complex issues involved and both the Minister and officials hope to engage with the Environment Committee, on the issue of third Party Appeals.

ANNEX B

Addressing development commenced without planning permission

Background

1. During discussions with the Environment Committee about the Planning (Amendment) Bill, the Committee expressed concerns about the disregard by some developers for the requirement to obtain planning permission prior to commencing development. The commencement of unauthorised development is a cause of great concern to the general public and the Committee's view clearly is that making such development a criminal offence is the best way of dealing with the matter.

Current Position in Northern Ireland

2. In Northern Ireland the powers available to the Department to deal with breaches of planning control, including development started without planning permission, are included in two different sections of the Planning (Northern Ireland) Order 1991.

3. Article 23 provides that where it appears to the Department that development has been carried out without the grant of planning permission it may issue a notice requiring the making of an application for such permission. This provision is generally used where the Department believes that the development being undertaken would be likely to meet with planning requirements and receive planning permission if sought. However, any person failing to comply with an Article 23 notice is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale (currently £1,000.). Notices under Article 23 are normally used for minor breaches of control.

4. Article 68 provides that where unauthorised development is taking place, including development commenced without the grant of planning permission, the Department has powers to issue an Enforcement Notice requiring the breach of planning control to be remedied. Any person who fails to comply with the steps required by an Enforcement Notice within the stipulated period shall be guilty of an offence and liable on summary conviction to a fine not exceeding £5,000. These notices are normally used in respect of unauthorised development where the Department believes that a grant of planning permission would be unlikely.

Current Difficulties

5. The Department has limited powers to obtain information in respect of activities on land prior to taking enforcement action. These powers are restricted to those set out in Article 125 of the Planning (Northern Ireland) Order 1991. Enforcement procedures are also complex and include no flexibility for modification of an enforcement notice or for part enforcement. In addition, the current level of fines that the Courts can impose for non-compliance with an enforcement notice (current maximum £5,000) are considered by many to be too low, providing no real deterrent.

6. The Department has experienced difficulties in recent years in pursuing enforcement action as vigorously as it would like, in part due to the difficulties outlined above, but also because of resource difficulties. However, the Department is committed to being much more pro-active in pursuing breaches of planning control and to ensuring quicker and more effective enforcement action.

7. The above will be accommodated in part by the introduction of the Planning (Amendment) Bill. New powers will include: -

• Contravention Notices: The purpose will be to strengthen the power to obtain information prior to taking enforcement action, to encourage dialogue with any persons thought to be in breach of planning control and to secure their co-operation in taking corrective action. Any person found guilty of non-compliance with any requirement of a contravention notice will be liable to a fine not exceeding £1,000, and any person found guilty of making any statement purporting to comply with a requirement of a contravention notice, which he knows to be false or misleading, will be liable to a fine not exceeding £5,000.
• Injunction: It is proposed to give the Department an express power to apply to the High Court for an injunction to prevent any actual or threatened breach of planning control. The intention is to integrate injunctions into the range of enforcement powers available to the Department so that they may be used whether or not other enforcement powers have been, or may be, used.
• Reduction in legal complexity: It is intended to reduce the legal complexity of the provisions that apply to the preparation, issue and service of enforcement notices. This should minimise the possibility of minor drafting errors, or legal or technical deficiencies which can result in a notice being quashed. The provisions will provide the Department with flexibility to require only partial remedy of a breach of planning control where, at the time of enforcement, a total remedy is not considered necessary. The provisions will also allow for the withdrawal or variation of an enforcement notice, without prejudice to the Department's power to issue a further notice.
• Increased penalties: To avoid the situation whereby a person is not deterred by the financial penalties imposed by the courts for breaching an enforcement notice, it is proposed: -

When determining the level of fine in either case, both the magistrates court and the Crown Court shall be required, in particular, to have regard to any financial benefit which has accrued, or appears likely to accrue, in consequence of the offence. The clause also makes it clear that a person found guilty of an offence, and who continues not to comply with a notice, may be guilty of a further offence, and subsequently, of still further offences until there is compliance with the notice.

In addition, a person found guilty of an offence involving demolition, or alteration or extension of a listed building affecting its character will be liable: -

• on summary conviction, to a term of imprisonment not exceeding 6 months or a fine not exceeding £20,000 or both; or
• on conviction on indictment, to imprisonment for not more than 2 years, or a fine.

• Stop Notice: It is proposed that, when urgent action is required, a Stop Notice will be able to take effect immediately. To ensure parity with the new penalties for non-compliance with an Enforcement Notice, increased penalties are being introduced: -

• the maximum level of fine in the magistrates court for contravention of a Stop Notice will be increased from £5,000 to £20,000 on summary conviction;
• statute will allow, for the first time in Northern Ireland, for a person to be convicted on indictment in the Crown Court for this type of offence; and,
• the courts will be required to take account of any benefits accrued or which appear likely to accrue as a result of the offence.

The proposed level of increased fines in the Bill is a further issue about which the Committee has expressed views. A separate paper dealing with this issue and possible amendments to proposed fine levels has been submitted to the Committee for discussion.

8. The Department has indicated to the Committee that the new powers and higher penalties within the Bill, together with the Department's commitment to pursue enforcement more vigorously and, where appropriate, through the Crown Court, will enable quicker and more effective enforcement action to be taken in relation to all breaches of planning control, including development started without planning permission. The Committee, however, has continued to express concern that not enough is being done and that commencing development without planning permission should become an offence.

Current Position in GB

9. Over the years, the Westminister Government has continually resisted repeated attempts to make breaches of planning control criminal offences on the grounds that it was unnecessary, and that existing enforcement procedures provided a more pragmatic approach to dealing with breaches of planning control.

10. In its consideration of the Planning and Compensation Bill, on which the current Northern Ireland Planning (Amendment) Bill is largely based, the Government resisted several amendments, moved at different parliamentary stages, aimed at making breaches of planning control criminal offences. Ministers expressed the view that the other enforcement provisions provided by the Bill were sufficiently strong to overcome flagrant breaches of planning control. The Government argued that instead of making individuals who breach planning control potential criminals, that a more appropriate approach would be to give planning authorities more substantial enforcement powers with which they could respond to any particular breach of planning control. The Government regarded this as a pragmatic and cost-effective approach to the enormous range of planning control issues.

11. In December 2001, the Department for Transport, Local Government and the Regions (DTLR) issued a Green Paper entitled "Planning: Delivering A Fundamental Change", which, amongst other things, included a section on better enforcement. This section stated that deliberate evasion or abuse of the planning system was unfair to others and brought the system into disrepute and that more effective sanctions against those trying to cheat the system was needed.

12. The Green Paper concluded that DTLR (now the Office of the Deputy Prime Minister [ODPM]) would review current arrangements with the intention of introducing simpler procedures. As part of that process, it is proposed to consider whether punitive charges for retrospective applications should be considered and whether a deliberate breach of planning regulations should constitute an offence immediately pursuable through the courts.

13. Further separate public consultation on enforcement measures is proposed by ODPM and this is expected to begin in July 2002. The Department will carry out careful monitoring of this consultation exercise.

Republic of Ireland Position

14. Under Section 151 of the Republic of Ireland's (ROI) Planning and Development Act 2000, it is an offence to commence development without first having obtained planning permission. Provision also exists, however, for normal enforcement action to be taken using enforcement procedures similar to those that exist in Northern Ireland. Consideration of the most up-to-date statistics available from the Department of Environment and Local Government in Dublin and discussions with officials there has provided the following information on both direct prosecution through the Courts and on enforcement action taken by the various planning authorities during 1999:-

• 27 prosecutions were initiated through direct recourse to the Courts and 2 convictions were obtained;
• 234 prosecutions were initiated for non-compliance with a warning notice and 5 convictions were obtained; and
• 1,135 enforcement notices were issued and 205 convictions were obtained.

Advice from ROI officials is that prosecution in the Courts, without first seeking a resolution through available enforcement procedures, can be difficult to achieve and that the Courts will generally expect normal enforcement procedures in place to have been exhausted, before cases are brought to Court.

15. The legislative framework in ROI has been amended with the introduction of the Planning and Development Act 2000, the enforcement measures of which came into force on 11 March 2002. This Act amends earlier enforcement provisions, but provides a broadly similar basis for dealing with breaches of planning control.

QUB Research

16. In April 2002, the Department commissioned research by Queens University to: -

• Identify planning enforcement systems operating in other jurisdictions of the European Union;
• Establish the mechanisms available to deal with breaches of planning control within these systems; and
• Evaluate the effectiveness of such mechanisms and where possible focussing specifically on the deterrent value of the facility and the merits of punitive measures.

This research has now been completed. Consideration of the research findings indicates that there is possible merit in making it an offence to start development without planning permission. The research suggests that where it is transparent to the developer that the consequences of unauthorised development will be severe, planning enforcement is more effective. In the Republic of Ireland, the perception of those surveyed, working in enforcement, is that the deterrent value of strong legislative provisions, such as provisions making it an offence to commence development without planning permission, is likely to make a positive contribution to the effectiveness of an enforcement system.

17. The research confirms that most of mainland Europe has a plan led system and that development plans are legally binding. In addition, it is an offence in most jurisdictions to start development without the necessary permissions. A few comments on the systems which appear to be most effective are provided below:-

• France

• Spain

• Germany

Issues

18. Any decision to make it an offence to commence development without planning permission would require the consideration of various important issues in terms of how any such provision would be used: -

• If it were decided to pursue a breach of planning control directly through the courts, decisions to do so would have to be made early in the process. In deciding when to prosecute a range of factors would have to taken into account: -

• It would be extremely important that the Department used its powers equitably and not just to target large developers. This reinforces the need for careful consideration about how and when such a power would be used.

In addition, any decision to introduce new powers would require Executive Committee approval, as well as the consent of the Secretary of State, on the creation of any new offence.

Conclusions

19. In view of the Committee's continuing concern and representations; the findings of the QUB research; and the Minister's empathy with the Committee's views, the issue needs to be addressed during the Committee stage of the Planning (Amendment) Bill.

20. In response to the Department's public consultation paper setting out its proposals for the Planning (Amendment) Bill, only one consultee recommended that it should be unlawful to start development without planning permission. Other consultees, however, expressed general concern about the issue and the need to address the problem, but with no specific recommendations.

21. The creation of a new offence could be achieved through an amendment to the Planning (Amendment) Bill and the Minister is considering that option. Any such amendment, however, would require further careful consideration and examination of how a new offence would be applied and operated in practice. It would also be subject to Executive Committee agreement and further discussions with the Secretary of State in relation to the creation of a new offence.

22. Subject to the views of the Committee, the Department now intends to prepare a detailed case for submission to the Executive Committee and the Secretary of State seeking the necessary approvals.

23. Both the Minister and officials propose to have further discussions with the Environment Committee as proposals are developed.

ANNEX C

PROPOSED LEVELS OF FINES

Background

1. The Planning (Amendment) Bill 2002 proposes to increase the maximum level of fines that magistrates' courts can impose in relation to a range of offences under the Planning (Northern Ireland) Order 1991.

2. Under the 1991 Order, the maximum fine which the courts can impose, for example, in the case of non-compliance with an Enforcement Notice is £5,000. The Planning (Amendment) Bill 2002, introduced to the Assembly on 10 June, includes provisions to increase the maximum level of fine, on summary conviction, from £5,000 to £20,000. Provisions are also included to allow, for the first time in Northern Ireland, a person to be convicted on indictment in the Crown Court for this type of general enforcement offence. In the latter case, there will be no limit to the fine that the Crown Court can impose. Importantly, both courts when determining either level of fine shall, in particular, have regard to any financial benefit, which has accrued or appears likely to accrue, in consequence of the offence.

3. Similar increases in the levels of fines are proposed within the Bill for other offences relating to, for example, Stop Notices, breaches of Tree Preservation Orders, offences relating to listed buildings and offences relating to hazardous substances.

4. The Department believes that the proposed increases are significant and that the ability, which has not previously been available, to pursue cases on indictment through the Crown Court, with no limit to the fines that can be imposed, will act as a significant deterrent against unauthorised development. Similarly, proposals in the Bill relating to listed buildings will significantly strengthen the penalties available to the courts in cases where an individual is found guilty of an offence involving demolition of a listed building, or alteration or extension of a listed building affecting its character, by introducing custodial sentences. In such cases, a person would be liable on summary conviction to a term of imprisonment not exceeding 6 months or a fine not exceeding £20,000 or both; or on conviction on indictment to imprisonment for not more than 2 years, or a fine. The courts when determining either level of fine shall, in particular, be required to have regard to any financial benefit, which has accrued or appears likely to accrue in consequence of the offence.

Environment Committee comments

5. During discussions with Departmental officials to discuss the Planning (Amendment) Bill, the Environment Committee has expressed concern that the proposed levels of fines in the Bill are too low. The Committee has suggested that the levels of fines in the magistrates' court should be higher, or, indeed, that there should be no maximum level, thereby leaving it to the magistrate to decide the appropriate level of fine for any particular case.

ISSUES

6. In determining the proposed levels of fines to be included in the Bill a number of important considerations need to be examined.

The Role of the Courts

7. It is important firstly to consider the court structure in Northern Ireland in terms of the prosecution of offences. The law recognises that not all crimes are equally serious by providing two different forms of procedure and trial. Less serious offences are dealt with by a summary trial in a magistrates' court. These are generally relatively minor offences not considered serious enough to merit the extra time and expense required for trial on indictment. More serious offences are tried on indictment in the Crown Court.

8. The vast majority of criminal offences dealt with in Northern Ireland are tried summarily in magistrates' courts. Summary trial is quicker and less expensive than trial in the Crown Court, and the sentence that a magistrate can impose is much less severe than the sentence that could be imposed by a judge in the Crown Court. Generally, including planning matters, the most serious punishment that a magistrate can impose is a fine of £5,000 or six months in prison or both. However, the most common punishment in magistrates' courts is a fine.

9. Advice from the Northern Ireland Court Service is that a magistrates' court will always be limited in the fine it may impose by the statutory enactment empowering the imposition of the fine, ie magistrates' courts are never totally unfettered in their discretion to impose a fine and a maximum fine level is always imposed in statute. For summary offences the maximum fine will usually be expressed in terms of a level on the standard scale. Article 5(1) of the Fines and Penalties (NI) Order 1984 (as amended by Article 3(2) of the Criminal Justice (NI) Order 1994) created a standard scale of fines with five levels:

10. Consultation with the Court Service has indicated that in the case of offences that may only be dealt with in a magistrates' court, it would be unusual for the maximum fine to exceed £5,000. The Planning (Amendment) Bill, by prescribing maximum fines of £20,000, is already going well beyond the limits of the standard scale. The proposed level of £20,000 will, however, bring Northern Ireland's planning legislation and the prescribed levels of fines into line with GB and the Secretary of State's consent to the proposed levels has been obtained in accordance with the requirements of the Northern Ireland Act.

11. Given the respective responsibilities for offences and penalties of the magistrates' courts and the Crown Court, the Department does not believe that it would be appropriate to seek to introduce unlimited fines, as proposed by the Environment Committee.

Effects of Inflation

12. The Department does, however, recognise the Committee's concern that when cases go before a magistrates' court the penalties that the court can impose should be as high as possible. The Department also recognises that the level of £20,000 now proposed in the Planning (Amendment) Bill was originally introduced in GB in 1991. The Department accepts that the effects of inflation since 1991 should be considered. An examination of inflation rates suggests that a figure of perhaps £30,000 would be appropriate in 2002/03 and the Department will now consider presenting a case to the Executive Committee and the Secretary of State on this basis.

13. The Department realises that the Committee may feel that even a figure of £30,000 is still too low. The Committee is reminded, however, of the Department's commitment to pursue enforcement more vigorously in future and, where appropriate, to pursue the more serious breaches of planning control through the Crown Court. In such cases, there would be no limit on the level of fines that the Court could impose and, in deciding the level of fine, the Court would be required to take into consideration any financial benefit likely to accrue in consequence of the offence. Where an offence involves a less serious breach of planning control, the Department is satisfied that a maximum fine level of £30,000, which would represent a significant increase to the current level of £5,000, would be reasonable. The Committee should note that, even in these circumstances, the courts, when deciding the level of fine, will be required to take into consideration any financial benefit likely to accrue in consequence of the offence.

Percentage Fines

14. One further point raised by the Committee was the possible benefits of percentage fines. The intention was that these would be related to the likely level of profit that a developer might accrue through activities that breached planning control. The Department has considered the proposal but strongly believes that the freedom and discretion of the courts to determine appropriate punishments, including fine levels should not be undermined. The Committee will have noted that the proposals in the Bill will require the courts to take account of any financial benefit likely to accrue in consequence of an offence in deciding the level of fines. The Department believes that any more prescriptive requirements limiting the discretion of the Courts would be inappropriate.

15. The Committee may be aware of similar proposals to introduce a system of "unit fines" in England and Wales. These were introduced under the Criminal Justice Act 1991 and were meant to ensure that fines imposed by the courts would be related to a defendant's own personal circumstances. The system, which restricted the discretion of the courts, was so severely criticised by magistrates' and others in England and Wales that, in 1993, the Home Secretary announced that it was to be abolished.

CONCLUSIONS

16. Having considered the issues in this paper and recognizing the Committee's concern that fine levels in the magistrates' courts should be as high as possible, the Minister does not believe that substantially higher fines, or unlimited fines, would be appropriate given the structure and roles of magistrates' courts.

17. The Minister does recognise, however, that the level of £20,000 now proposed in the Planning (Amendment) Bill was originally introduced in GB in 1991 and that the effects of inflation since 1991 should be taken into account in setting a new maximum fine level. An examination of inflation rates suggests that a figure of perhaps £30,000 would be appropriate in 2002/03. The Minister wishes to take the Committee's views prior to putting forward a case to the Executive Committee and the Secretary of State.

18. Finally, the Minister and officials would welcome the Committee's comments on this issue.

ANNEX 14

LETTER FROM:
DEPARTMENT OF THE ENVIRONMENT

24 June 2002

PLANNING (AMENDMENT) BILL - QUB RESEARCH PAPERS ON THIRD PARTY
APPEALS AND CREATION OF A NEW OFFENCE FOR UNAUTHORISED DEVELOPMENT

During recent presentations on the Planning (Amendment) Bill officials advised the Committee that research had been commissioned from Queen's University Belfast on the above subjects. The Committee indicated that it would like to receive copies of the research papers when available.

The research reports were received earlier this month and a hard copy of each will be delivered to the Committee today. Summary analysis papers on each report have been prepared by the Department and copies are enclosed.

JENNIFER MCCAY
(Acting Assembly Liaison Officer)

ANNEX A

SUMMARY OF QUB RESEARCH FINDINGS ON THIRD PARTY APPEALS - JUNE 2002

1. On 22nd March 2002, the Department commissioned a research project into third party appeals from Queens University Belfast. This research was to be an extension of his previous research on this issue and was commissioned under the following terms of reference: -

• Identify those planning systems loosely based on British model of planning that have third party appeal mechanisms;
• For those systems, describe the third party appeal procedures and assess the statutory restrictions on third parties who wish to make planning appeals;
• Briefly review other European planning systems, identifying how they deal with third party objections and describe any mechanisms, if any, that may be relevant to the consideration of third party appeals in a Northern Ireland context;
• Provide an update on the impact of third party planning appeals in the Republic of Ireland, taking into account the impact of the restrictions introduced as part of the Planning and Development Act 2000;
• Outline a number of options for third party appeals that could be considered in a Northern Ireland context.

2. The research found that there were significant problems in making direct comparisons with the situation in Northern Ireland and other EU planning systems due to the different legal and planning systems in place. However, the research provides useful information on existing models of third party appeals operated in other EU jurisdictions.

3. The report findings were received in early June 2002 and are summarised below.

7.3 Main Findings

• Almost all other EU jurisdictions allow some form of third party appeal. Case studies reviewing how third party appeals are operated in other jurisdictions are provided.
• Third party appeal systems exist for a wide variety of reasons (Report Summary section 4):

• Protection of property rights
• To help secure the broader public interest
• For environmental protection reasons

• There is considerable variation in how each system of third party appeals operates (Report Summary Section 4). For example:

• In Denmark, appeals are allowed for environmental decisions only. Only specified environmental organisations allowed to appeal. Appeals must be made within 8 weeks of decision.
• In France, anyone may appeal any decision. Neighbours and environmental organisations have enhanced status. For these groups, appeals must be made within 6 months of decision.

• In Netherlands appeals must be made within 6 weeks. Appeals are made to deciding authority. Further opportunities to appeal to higher courts. Almost anyone can appeal

• It is essential to establish clearly the purpose of third party appeals (Report Summary 5.1). Purpose/origins identified are varied:

• To provide an accountability mechanism
• To safeguard individual rights
• Forum for public interest litigation, and in particular, environmental protection
• As a safeguard to adjacent landowners property rights
• Enhancement of public participation in planning decisions
• As a concession to popular and political pressure

• A wide variety of options is possible and many related issues need to be considered (Report Summary 5.2, 5.3, 5.4, 5.5) relating to:

• Nature of appeal body?
• Which third parties can appeal?
• Decisions that can be appealed?
• Time limits?

• Northern Ireland - third party appeals should not merely be inserted into the existing planning system. Broader procedural changes would be required to "retune" existing planning system (Report Summary 5.1)

ANNEX B

SUMMARY OF QUB RESEARCH FINDINGS ON THE CREATION OF A NEW OFFENCE FOR
UNAUTHORISED DEVELOPMENT - JUNE 2002

*All references to page numbers relate to page numbers in the research report

1. On 22nd March 2002 the Department commissioned a research project into the creation of a new offence for unauthorised development under the following terms of reference: -

• Identify planning enforcement systems operating in other jurisdictions of the European Union
• Establish the mechanisms available to deal with breaches of planning control within these systems
• Evaluate the effectiveness of such mechanisms and where possible focus specifically on the deterrent value of the facility and the merits of punitive measures.

2. The research found that to draw conclusions about the different systems of planning enforcement in the European Union could only be assessed in relation to their own aims within their own legal and constitutional contexts, and it was not possible to say that one country's legal framework is better than that of another. (Page 115). The research paper, however, makes a number of helpful findings and recommendations.

Main Findings

• It is an offence in most of Europe to carry out development without permission. Examples are covered in the Report on pages 63, 79, 90, 97, 103 and 108.
• Most European systems require a building permit and enforcement action and punitive measures can be instigated if this is not obtained.

In Spain, the level of unauthorised development has reduced in relation to major development. Strong punitive measures appear to have deterred offenders. (Pages 97 and 101)

• The plan led legally binding system, when applied appropriately, is effective

In France, the success of the system is underpinned by the legally binding development plan and the procedures in place to ensure that its requirements are met. The number of breaches in France is relatively low. (Page 85)

• There appears to be merit in making it an offence to carry out development without permission.

In the Republic of Ireland, it is perceived that this law could make a positive contribution to planning enforcement in Northern Ireland. Punitive measures that became effective in March 2002 in ROI are perceived as a deterrent that will reap significant benefits. (Page 72)

• A number of other issues are identified in the conclusions of the report as necessary to make enforcement more effective: -

Enforcement should have equal status with forward planning and development control. (Page 117)

Allocation of resources and staff training - Evidence from Spain and the Netherlands, demonstrates that, although robust legislative frameworks are in place, without sufficient staff and resources, the systems remain relatively ineffective. (Issues 3 & 4 on Page 118)

Linkage with Building Control - Potential proactive benefits to be obtained from communication between Planning and Building Control authorities. (Issue 5 on Page 119)

Public Guidance - If public were provided with enforcement guidance at Department's information desks, this could result in time saving benefits for enforcement officers. (Page 120)

Profile of Enforcement Outside Department - Publicity of successful enforcement action would have benefits for Northern Ireland by increasing public awareness of the punitive measures resulting from prosecution and deterring potential offenders from flouting the law. (Page 120)

Encouragement to Comply - In addition, the report suggests that a facilitative philosophy that fosters a climate supportive of enforcement policy goals should be adopted. (Issue 8 on Page 121)

The report concludes that making it an offence to commence development without permission is a fundamental component of an effective planning enforcement system and has the potential to make a significant positive contribution to the planning system in Northern Ireland. (Page 92)

The key conclusion of the report is that when there is clear scope for the application of legal sanctions, and it is transparent to the developer that the consequences of unauthorised development will be severe, planning enforcement represents less of a problem. (Page 121)

ANNEX 15

SPEAKING NOTES FROM:
DEPARTMENTAL OFFICIALS 4 JULY 2002

PLANNING (AMENDMENT) BILL

The Committee will already be familiar with the background to this proposed Bill. Briefly, its purpose is to: -

• enhance and strengthen the Department's existing planning enforcement powers; and,
• give primacy to development plans in the determination of planning applications.

Overview

This Bill meets a commitment given by a previous administration to the House of Commons Northern Ireland Affairs Committee to introduce into Northern Ireland's planning law the new enforcement provisions contained in the Planning and Compensation Act 1991 in England, Scotland and Wales. It largely meets this commitment and introduces some new measures such as Building Preservation Notices that were already a feature of planning law elsewhere in the UK.

As requested, the following is a summary of the clauses in the Bill, indicating where applicable, issues raised by respondents to the consultation and by the Environment Committee. The absence of any specific comment indicates that either no comments were made or there was general support for the proposal.

Clause 1 - Planning Contravention Notice

This clause provides for the issue of a Planning Contravention Notice, the purpose of which is to strengthen the Department's power to obtain information prior to taking enforcement action, to encourage dialogue with any persons thought to be in breach of planning control and to secure their co-operation in taking corrective action.

Failure to comply with such a Notice within 21 days of its service would be an offence, liable on summary conviction, to a fine not exceeding level 3 on the standard scale (currently £1,000).

In addition, any person who makes a false or misleading statement in respect of a notice will be liable on summary conviction to a fine not exceeding level 5 on the standard scale (currently £5,000).

Failure to comply with a Notice could also affect any future entitlement to compensation payable in connection with Stop Notices.

Responses

Three responses suggested some minor changes to the detail of what is proposed, for example, that there should be full disclosure of information.

Consideration

Suggestions considered overly onerous, in the context of the purpose of the notice.

Clause 2 - Enforcement of Conditions

This clause provides for the issue of a Breach of Condition Notice for breaches of conditions attached to a planning permission.

It may be served if there is clear evidence that a planning condition has not been complied with.

Non-compliance with a Breach of Condition Notice shall be an offence liable on summary conviction to a fine not exceeding level 3 on the standard scale (currently £1,000).

Responses

Two responses suggested that there should be a right of appeal against a breach of condition notice. One response suggested that the proposed level of fine was not a sufficient deterrent for major breaches.

Consideration

Applicants already have a right of appeal against conditions attached to planning approvals. In addition an applicant can apply under Art. 28 of the 1991 Order for permission to develop land without conditions previously attached, where he considers that circumstances have changed since the original grant of permission. A third opportunity to challenge a condition is considered superfluous.

Clause 3 - Injunctions

This clause will give the Department an express power to apply to the Courts for an injunction to prevent any actual or threatened breach of planning control.

This power will also apply in relation to unauthorised works to a listed building, breaches of a Tree Preservation Order and certain acts in respect of trees in a Conservation Area; and, any actual or apprehended breach of a Hazardous Substances Contravention Order.

The intention is to integrate injunctions into the range of enforcement powers available to the Department so that they may be used, whether or not other enforcement powers have been, or are intended to be, used.

Rules of Court may provide for an injunction to be granted against a person whose identity is unknown.

Clause 4 - Time Limits

This clause simplifies the rules regarding the time period within which action may be taken in respect of breaches of planning control, by establishing two different limitation periods for enforcement action: -

• The four-year rule: four years is the time allowed to the Department to take enforcement action where the breach comprises either operational development (the carrying out of unauthorised building, engineering, mining or other operations), or the change of use to use as a single dwelling house.
• The ten-year rule: this is the time allowed for all other breaches of planning control, and represents a significant change from the current position. Under the Planning (NI) Order 1991, an unauthorised change of use (other than to use as a single dwelling house) was immune from enforcement action only if it had been undertaken before 26 August 1974. Upon coming into operation, immunity from enforcement action will automatically be conferred on all breaches of planning control that occurred between 26 August 1974 and the date ten years prior to the Act becoming law, thereafter immunity will accrue on a rolling basis.

Responses

A number of responses (6) indicated that the time limits for breaches of planning control should not be revised. One council suggested that all development over four years old should be immune from enforcement.

Consideration

The four year rule does not change any existing time limit for taking enforcement action. The ten year rule, reduces the immune period for an established use from 24 August 1974 to a period of ten years prior to the Bill becoming an Act, and on a rolling period of ten years thereafter. For all other breaches of planning control except the change of use to use as a single dwelling house, the period allowed for taking enforcement action will increase progressively from four years to ten years.

Clause 5 - Enforcement Notice

This clause will reduce the legal complexity of the provisions that apply to the drafting, issue and service of enforcement notices, by minimising the possibility of some minor drafting error, legal or technical deficiency, resulting in a notice being quashed. However, the notice will still have to be sufficiently clear to enable any recipient to understand exactly what unauthorised use/work is alleged and what he/she is required to do to remedy this.

It provides that an enforcement notice may be served on the current owner or occupier of the land to which the notice relates and on any other person with an estate in, the land.

The provisions will provide the Department with flexibility to require only partial remedy of a breach of planning control where, at the time of enforcement, a total remedy is not considered necessary.

The provisions will also allow for the withdrawal or variation of an enforcement notice, without prejudice to the Department's power to issue a further notice.

Responses

One response queried the need for partial remedy of a breach of an enforcement notice.

Consideration

Partial remedy provides the Department with the flexibility to take account of changing circumstances and the passage of time.

Clause 6 - Appeal against Enforcement Notice

This clause specifies revised grounds on which an appeal against an enforcement notice can be made and the procedures for making a valid appeal.

It also provides that if an appeal against an enforcement notice includes a ground of appeal that planning permission ought to be granted for the development to which the notice relates or, as the case may be, that a condition or limitation alleged in the enforcement notice not to have been complied with ought to be discharged, it shall constitute a deemed planning application.

The clause also requires the planning appeals commission to notify the appellant of the amount of the appropriate fee and to specify the period within which it must be paid. If the fee is not paid within that period then the appeal on the planning merits will lapse and the commission barred from considering or determining the deemed planning application.

Responses

Three responses indicated that provision should be made for the award of costs by the PAC against parties considered to be acting unreasonably at an appeal.

Consideration

Limited support for such a move, which traditionally has not been a feature of the appeal process in Northern Ireland. Now a matter for OFMDFM.

Clause 7 - Offence for Non-Compliance with an Enforcement Notice

This clause will strengthen and clarify existing provisions concerning offences for not complying with an enforcement notice.

The clause provides for an increase in the maximum level of fine, on summary conviction, from £5,000 to £20,000.

It also allows, for the first time, for a person to be convicted on indictment for this type of offence.

The courts when determining either level of fine shall, in particular, have regard to any financial benefit, which has accrued or appears likely to have accrued, in consequence of the offence.

The clause also makes it clear that a person found guilty of an offence, and who continues not to comply with a notice, may be guilty of a further offence, and subsequently, of still further offences until there is compliance with a notice.

Responses

A number of councils and residents association (8 in all) indicated that the proposed level of fines should be increased still further. One residents group suggested prescribing minimum levels of fines. Concern was also expressed that the Court seldom impose the maximum level of fine available to it.

Consideration

The proposed increase from £5K to £20K in the Magistrates' Court already represents a significant increase in the level of fine available to that Court. In addition, there will be no limit to the level of fine that can be imposed in the Crown Court. Taken together these proposed new fines are considered sufficient to act as a deterrent to this type of offence.

The prescribing of minimum levels of fine that a Court can impose would fetter the discretion available to that Court in respect of the individual circumstances of a case. The level of fine imposed by a court is a matter for the judiciary

Clause 8 - Execution of Works

This clause strengthens the power of the Department to enter land and carry out works to ensure compliance with an Enforcement Notice.

It also makes it an offence, punishable on summary conviction to a fine not exceeding level 3 on the standard scale (currently £1,000), to wilfully obstruct anyone authorised to carry out works.

Responses

One residents group suggested that the proposed level of fine is not sufficient to deter wilful obstruction.

Consideration

Proposed level of fine is proportional and consistent with others proposed in the Bill.

Clause 9 - Stop Notices

This clause strengthens and clarifies the current Stop Notice provisions by enabling a Stop Notice to take effect within a shorter period than at present and, immediately, if necessary.

To ensure parity with the increased penalties for contravention of an Enforcement Notice, this clause provides that: -

• until the Notice is complied with, further offences may be committed;
• the maximum level of fine for contravention of a Stop Notice will be increased from £5,000 to £20,000 on summary conviction;
• statute will allow, for the first time, for a person to be convicted on indictment for this type of offence; and,
• the courts will be required to take account of any benefits accrued or which appear likely to accrue as a result of the offence.

In certain circumstances compensation may be payable when a Stop Notice is quashed or withdrawn.

Subsection (2) provides that no compensation is payable in respect of a stop notice for any activity which at the time when the notice is in force constitutes or contributes to a breach of planning control or in respect of any loss or damage if such loss or damage could have been avoided had information required under a Planning Contravention Notice (Clause 1), or Article 125 of the 1991 Order, been provided.

Responses

Two councils suggested that stop notices should take effect immediately in all cases. One council suggested that the stop notice process should be used in respect of unlawful development.

Consideration

Limited support for such a move. Flexibility is required to suit the circumstances of each particular case. The use of the stop notice process in respect of unlawful development is being given further consideration as part of the review of criminalising breaches of planning control

Clause 10 - Certificate of Lawful Use or Development

This clause abolishes the unsatisfactory situation whereby a development may be "unlawful" but "immune" from enforcement action, because the time period for taking such action has elapsed.

Under this clause, a person will be able to apply to the Department for a Certificate to ascertain whether an existing use of buildings or other land, or operational development, or some activity in breach of a planning condition, is lawful. In the case of a proposed use or operational development, the grant of a Certificate would establish the lawfulness of the proposed use or operational development.

The onus for producing sufficient evidence to warrant the granting of a Certificate will rest firmly on the applicant. There will be a right of appeal against a refusal or failure to give a decision. Any person who makes a false or misleading statement in respect of procuring a Certificate will on summary conviction be liable to a fine not exceeding the statutory maximum or, on conviction on indictment, to imprisonment for a term not exceeding two years, or a fine, or both.

Responses

Two responses suggested that there should be a transitional period during which there would be no fee for a certificate.

Consideration

Could be subject to criticism by auditors for failing to charge for cost of providing a service.

Clause 11 - Rights of Entry for Enforcement Purposes

This clause will allow officers of the Department to enter any land at all reasonable hours, on production of appropriate authority, for the purposes of investigating any alleged breach of planning control on that land or on immediately adjoining land.

The provisions of this clause are more closely tailored to the Department's needs in obtaining information, preparatory to taking formal enforcement action. When taken together with the new "planning contravention notice" (Clause 1) the Department will have comprehensive powers to obtain essential information about any suspected or actual breach of control under Part VI of the 1991 Order.

Clause 12 - Listed Buildings

This clause provides for the following possible penalties for a person found guilty of an offence involving demolition, or alteration or extension of a listed building affecting its character: -

• to be given a term of imprisonment not exceeding 6 months or a fine not exceeding £20,000 or both; or
• imprisonment for not more than 2 years, or a fine.

The courts when determining either level of fine shall, in particular, have regard to any financial benefit, which has accrued or appears likely to be accrued, in consequence of the offence.

Responses

Both the UAHS and RSUA sought the introduction of higher fines. The Committee also felt that higher fines were warranted.

Consideration

The introduction of the possibility of custodial sentences coupled with the new level of fines are considered to be sufficient to act as an effective deterrent to this type of offence.

Clause 13 - Hazardous Substances

This clause provides that a person found guilty of an offence relating to hazardous substances will be liable on summary conviction to a fine not exceeding £20,000 or, on conviction on indictment, to a fine.

The courts when determining either level of fine shall, in particular, have regard to any financial benefit, which has accrued or appears likely to be accrued, in consequence of the offence. .

It also allows for hazardous substances contravention notices to require only a partial remedy, if this is considered appropriate.

Responses

One residents group suggested that the minimum rather that the maximum level of fine should be £20K.

Consideration

Proposed fines proportionate and consistent with others in the Bill.

Clause 14 - Replacement of Trees

This clause replaces Article 82 of the 1991 Order and provides for revised enforcement measures in respect of the protection of trees that are subject to a Tree Preservation Orders (TPO) as follows: -

• A new power for the Department to enforce the duty to replace trees subject to a TPO;
• Sets out specific grounds of appeal against enforcement notices in relation to trees;
• A power for the Department to enter onto land to replant trees subject to a TPO, and to recover any costs incurred as a civil debt;
• A new duty on an owner to replace trees in a Conservation Area that are removed.

Responses

One response suggested that the new duty to replace trees should be extended to ATCs.

The Committee called for greater protection of trees not subject to a TPO.

Consideration

Resource implications in enforcing this new duty. Would require all tree owners, e.g., individual householders to apply for permission to cut down trees in private gardens.

Clause 15 - Demolition

This clause introduces an amendment to make it clear that all demolition should come within the meaning of development for planning purposes.

However, for the time being, only buildings in Areas of Townscape Character and those buildings whose demolition is already subject to planning control, i.e. historic monuments, listed buildings and buildings in Conservation Areas, will be subject to this new regime.

This will be achieved by specifying in a Departmental Direction under a new Article 11(2)(f) those buildings whose demolition does not come within the meaning of development for planning purposes and those buildings that do.

The purpose of this is to avoid the possibility of a large number of planning applications for the demolition of relatively minor structures clogging up the planning process.

Responses

One response suggested that all demolition should require planning permission. Committee Members also felt that demolition should be subject to planning control.

Consideration

Significant resource implications if applied throughout NI. Targeting buildings in ATCs considered a pragmatic approach. The new legislative framework will however provide scope for adding to the types/classes of buildings whose demolition can be brought under control.

Clause 16 - Reversion to previous lawful use

This clause brings NI planning legislation into line with GB legislation by specifying that it is lawful to revert to a previous legal use following the service of an enforcement notice or at the end of a temporary planning permission.

At present in NI, technically such reversion requires planning permission.

Clause 17 - Power to Decline to Determine Application

This clause gives the Department power to decline to determine a planning application if, within the preceding 2 years, it had refused an application designated as a major one under the Article 31 procedure of the Planning (NI) Order 1991, or the Planning Appeals Commission has dismissed an appeal for a similar proposal, and there has been no material change in circumstances.

Responses

Three responses expressed concern at the Department taking this power.

Consideration

Provision considered necessary to curb developers determined to wear down opposition to a proposal. Should reduce nugatory expenditure of resources on repeat applications.

Clause 18 - Assessment of Environmental Effects

Under EC Directive 85/337/EEC, there is a requirement to make Regulations, which set out the classes of development for which an environmental assessment may be required. This requirement was implemented by the Planning (Environmental Impact Assessment) Regulations (Northern Ireland) 1999.

This clause makes specific primary provision to allow new regulations to go beyond the environmental assessment provisions of the Directive. For example, in England and Wales the Regulations were extended to include wind generators, motorway service areas and coastal protection works in the classes of development for which an environmental assessment may be required.

Clause 19 - Dismissal of Appeal in cases of undue delay

To prevent time wasting appeals and appeals lodged for tactical purposes this clause will give the Planning Appeals Commission the power to dismiss an appeal if it appears that the appellant is causing undue delay in its progress.

Responses

Two responses expressed concern at the PAC being given this power.

Consideration

Will assist PAC in better use of resources. Will prevent time wasting appeals aimed at thwarting enforcement process.

Clause 20 - Planning Agreements

This clause amends the application of planning agreements and introduces provisions relating to the modification or discharge of an agreement.

A party to a planning agreement will be enabled by this clause to apply to the Department for modification and discharge of an obligation with a right of appeal to the Planning Appeals Commission against the Department's determination.

The clause also creates a new offence for the wilful obstruction of any person authorised to enter land to carry out works required by a planning agreement.

Clause 21 - Advertisements

This clause will broaden the definition of "advertisement" to include matters such as rotating poster panels, advertisements on permanently fixed blinds or canopies on business premises etc.

This is to ensure that certain modern forms of outdoor advertising are subject to advertisement control.

Responses

One council opposed to any additional control over outdoor advertising. Four councils suggested that adverting on trailers should be restricted. One council suggested that the structural aspects of advertising panels should be subject to planning control.

Consideration

Control over outdoor advertising is in the public interest. Structural maters are not planning matters. Difficulties with enforcement of advertising controls lies with burden of proof and time and effort put into enforcement when balanced against penalties imposed by court.

Clause 22 - Building Preservation Notices

This clause introduces Building Preservation Notices for the temporary listing of buildings, commonly referred to as "spot-listing".

The introduction of these notices will enable the Department (Environment and Heritage Service) to respond quickly to protect buildings at risk.

Responses

One council called for a right of appeal against BPNs.

Consideration

Not consistent with absence of right of appeal against listing of a building.

Clause 23 - Trees

Together with Clause 14, which deals with enforcement of duties in relation to the replacement of trees, this clause provides a major overhaul of the Department's powers in respect of the protection of trees and Tree Preservation Orders (TPOs) as follows: -

• A new duty to replace trees subject to a TPO that are removed. The existing TPO would automatically apply to the new trees planted as it did to the original trees, thereby providing that the removal of trees in itself does not automatically render the land suitable for development ;
• Higher penalties for breaches of TPOs. This involves an increase from £5,000 to £20,000 in the maximum level that can be imposed on summary conviction by a court. There is no limit to a fine that can be imposed on conviction on indictment. The Courts when determining either level of fine shall, in particular, have regard to any financial benefit, which has accrued or appears likely to be accrued, in consequence of the offence;
• A new provision in respect of the protection of trees in a Conservation Area; and
• A new provision in respect of compensation payable where consent to fell trees is refused. This will allow restrictions to be imposed on compensation payable, in each TPO made under the new provision.

Responses

Similar concerns expressed in respect of level of fines for breaches of TPO as expressed in relation to breaches of enforcement notice.

Consideration

Similar considerations apply.

Clause 24 - Status of Development Plans

This clause gives prime importance to a Development Plan in the determination of planning applications.

Its effect will be that the Development Plan will no longer be simply a consideration to which "regard" must be had; the planning decision itself will now have to be made in general conformity with the Plan, except where material considerations indicate otherwise.

There is, therefore, a presumption in favour of development that accords with the Plan and a presumption against development that does not.

In all cases, the Development Plan is the starting point for the determination of planning decisions and its provisions prevail until material considerations indicate otherwise.

Responses

A number of responses (10) suggested that there should be full area plan coverage before this clause is introduced.

Consideration

An area plan, even one passed its notional end date, remains the statutory plan for an area until it is replace by a new one. Appointed day procedure will provide flexibility as to when the clause will be given legislative effect.

Clause 25 - Planning Appeals Commission

Sponsorship of the Planning Appeals Commission transferred from this Department to OFMDFM in June 2001. Accordingly, this clause was introduced with OFMDFM agreement.

This clause specifies, for the first time, the post of Deputy Chief Commissioner.

It also makes specific provision to allow rules of procedure to be made governing the number of Commissioners who will be required to make a decision on a planning appeal or to make a report to the Department on a Public Inquiry.

Responses

Five responses suggested retaining the corporate decision making role of the PAC.

Consideration

Changes required to increase operational efficiency of PAC. Now a matter for OFMDFM.

Clause 26 - Grants for research and bursaries

This clause extends an existing power to enable the Department (Environment and Heritage Service) to make grants for assisting establishments engaged in promoting or assisting research relating to, and education with respect to, the planning and design of the built environment in addition to the physical environment.

Clause 27 - Grants to bodies providing assistance in relation to certain development proposals

This clause provides the Department (Environment and Heritage Service) with powers to enable it to provide funding for bodies, which may include Building Preservation Trusts, in circumstances where such funding would not necessarily be confined to grant eligible work, for example, the acquisition of buildings considered to be at risk.

Clause 28 - Planning Register

In addition to those matters already listed in Article 124 (the planning register) of the Planning (NI) Order 1991, this clause requires the Department to keep registers available for public inspection detailing those notices that it issues relating to: -

tree preservation in conservation areas

breach of condition notices,

certificates of lawfulness of existing use or development

certificates of lawfulness of proposed use or development; and

building preservation notices

Clause 29 - Home Loss payments following planning blight

This clause has been included to correct an omission in the Home Loss Payments (Northern Ireland) Order 1992 that only came to light in 1997. It will allow a home loss payment to be made to owner-occupiers who have served a blight notice on the Department under the provisions of the Planning Blight Compensation (Northern Ireland) Order 1981.

To date, such payments have been made on an extra-statutory basis.

Clause 30 - Minor and consequential amendments and appeals

This clause makes provision for minor and consequential amendments to be made in Schedules 1 and 2 to the Bill.

Clause 31 - Commencement

This clause provides for certain provisions in the Bill to come into operation on such day or days as may be appointed by the Department and for transitional and saving provisions to be made.

Clause 32 - Short Title

This clause gives the short title of the Act. This is the title by which the Act will be referred to.

Schedule 1 - Minor and consequential amendments

This schedule makes minor and consequential amendments to the Planning (Northern Ireland) Order 1972 and The Planning (Northern Ireland) Order 1991, as required by the new provisions inserted by the Bill.

Schedule 2 - Repeals

This schedule details those existing Articles of both the Planning (Northern Ireland) Order 1972 and the Planning (Northern Ireland) Order 1991 which are being repealed by this Bill.

ANNEX 16

LETTER FROM:
COMMITTEE FOR THE ENVIRONMENT

9 July 2002

Department Officials gave an informative presentation on the Clauses of the above Bill to the Committee at last week's meeting. After the presentation, the Committee discussed the way forward to progress its scrutiny of the Bill.

CONSULTATION RESPONSES

At the conclusion of last week's presentation, the Committee passed 17 responses, without prejudice, that it had received as part of its own Consultation Exercise with key consultees, to the Officials who had given the presentation - I have enclosed a further response, received today, from the Woodland Trust for inclusion with the earlier responses for the Department's consideration

The Committee would like a clear response from the Department that addresses the range of issues raised by those consultees as soon as possible.

It should be noted that any further responses received by the Committee will be immediately forwarded to the Department for comment.

CONSULTATION ANALYSIS

The Committee noted that while it had now received copies of the original responses, it was still awaiting receipt of the full and detailed analysis of the outcome of the Department's Consultation Exercise.

FURTHER PAPERS

At the meeting on 27 June 2002, Officials gave a lengthy and detailed presentation on three specific issues and undertook to forward three further papers relating to the following:-

(a) increasing the level of fines within the current Bill - this paper to include a draft of the Minister's case seeking approval from the Secretary of State;

(b) creation of a new offence of commencing development before planning approval has been given - again, the paper to include a draft of the Minister's case seeking approval from the Secretary of State; and

(c) the Department's views on progressing Third Party Appeals, focusing on a potential range of acceptable appellants and the implications/practical realities of this.

The Committee's understanding was that these papers would be provided within a few weeks.

THE WAY FORWARD

The Committee views this Bill as particularly significant and important. While appreciative of the presentations to date, it has yet to consider the detail and effect of the individual Clauses along with any potential amendments arising from current discussions - this has to be done before arranging a more indepth exchange with Officials. However, this can only be achieved with the full co-operation of the Department. To this end, I would ask for the Department's response on all of the above issues as soon as possible and certainly no later than by close 2 August 2002.

This will allow the Committee's Support Services to fully examine the Department's responses and to clarify any issues, if appropriate, so that timely information can be provided to the Committee in advance of its next meeting on 5 September 2002.

If you have any queries about any aspect of this letter, please do not hesitate to contact John Simmons or me.

JIM BEATTY

ANNEX 17

LETTER FROM:
DEPARTMENT OF THE ENVIRONMENT

24 July 2002

Thank you for your letter dated 9 July 2002 on the above. The Department notes your Committee's desire to progress its work on the Planning (Amendment) Bill as quickly as possible and wishes to co-operate fully with the Committee in this respect.

As requested, I enclose for your information the Department's consideration of the various responses to the Committee's consultation exercise on the Bill (Appendix 1). Also enclosed, is a copy of the Department's consideration of the responses to its March 1999 consultation exercise (Appendix 2). These are detailed papers and officials will be happy to address any issues the Committee may wish to raise.

You will recall that at the 27 June 2002 Committee meeting, the Department gave an undertaking to provide further papers relating to: -

(a) increasing the level of fines within the Bill;

(b) creating a new offence of commencing development without planning permission; and,

(c) setting out in more detail, the Department's views on progressing third party appeals.

Unfortunately, these papers are still being finalised and it is not possible to provide the Committee with the proposed papers at this stage. I can confirm, however, that subject to Ministerial clearance, it is the Department's intention to put a Policy Memorandum to the Executive Committee meeting in September 2002, seeking approval to increase the level of fines within the Bill and to create a new offence of commencing development without planning permission. The Minister then intends to write to the Secretary of State seeking his agreement to the proposals. The Executive Policy Memorandum, which will be copied to the Environment Committee as soon as it has been agreed with the Minister, will form the basis of the case to the Secretary of State.

As regards third party appeals, it is the Department's intention to put a detailed options paper to the Committee for discussion as soon as practicable and, if possible, before the end of the summer recess. This will provide a third party appeal model for discussion with the Committee and will highlight the wide range of issues to be considered.

Finally, the Committee will wish to note the Minister's desire to attend a sitting of the Committee at an early opportunity to explain the Department's position on these various issues.

CORAL RITCHIE
Assembly Liaison Officer

ANNEX 18

Presentation From Department Officials

5 September 2002

Concerns and Suggestions by Consultees of Committee for the Environment

Introduction

Consultees generally welcomed the Bill, subject to comments set out below.

CLAUSE 1: PLANNING CONTRAVENTION NOTICES

• RSPB: reservations about 67 (c) (4)
• Woodland Trust: Article 67C - problem of developers clearing trees/woods from site prior to applying for planning permission - see specific suggested amendments.

Comment

• Both RSPB and Woodland Trust seem to have misinterpreted the purpose of Article 67C, which is simply to enable the Department to obtain information on a possible breach of planning control, prior to taking enforcement action. Article 67C is entirely optional and the Department can issue an enforcement notice without using the Article 67C process.

CLAUSE 2: ENFORCEMENT OF CONDITIONS

• PAC: no provision for an appeal against a breach of condition notice (HR issue)
• PAC: wording of Article 76 (A) (2) needs to reviewed/amended
• RSPB: need to closely monitor compliance to ensure, when necessary, rapid response
• RSPB: 76 (A) (12) max. Level 3 fine of £1000 not sufficient deterrent for developers - suggest £5000 max

Comment

• Bill has been HR proofed - no concern at absence of appeal against breach of condition notice.
• Department content with current wording.
• Department is committed to being more proactive on enforcement.
• Do not agree with RSPB suggestion. BOCN to be used to deal with minor breaches. If breach is serious, enforcement notice is correct mechanism to use. £1,000 is consider consistent and proportional with other levels of fines.

CLAUSE 3: INJUNCTIONS

No comments received.

CLAUSE 4: TIME LIMITS ON ENFORCEMENT ACTION

• Coleraine Borough Council: Subsection 3 should be amended to exclude immunity for significant of major breaches in planning control (between August '74 and 10 years prior to Act becoming law)
• CEF: amend 'substantially completed' or clarify to remove doubt
• Lisburn Borough Council: Article 67 (B) (1) amend 'substantially completed' to remove doubt
• Woodland Trust: Article 67 (A) - see specific suggested amendments

Comments

• No indication in consultation responses of any widespread support for Coleraine's position. No current plans to change law.
• Do not accept Lisburn or CEF comments. Provision gives statutory effect to court rulings..
• Woodland Trust want clearance of trees from a site to constitute development. This has broad implications, e.g. clearing trees from a private garden.

CLAUSE 5: ENFORCEMENT NOTICES

• Lisburn Borough Council: amend to ensure District Councils are consulted at appropriate stages when enforcement action is being taken forward.
• RSPB: reservations on 'under-enforcement' - need clear criteria set out
• CEF ans Lisburn BC: Article 68 (A) amend wording or clarify to remove doubt

Comments

• No indication in consultation responses of any widespread support for Lisburn's proposal. No current plans to change law.

Under current law, all breaches of planning control, including those which the Department would be happy to approve, must be specified in an enforcement notice. Under new law, only those breaches, which the Department wants to enforce, need be specified.

Article 68A(7) already prescribes what constitutes a replacement building.

CLAUSE 6: APPEAL AGAINST ENFORCEMENT NOTICE

Coleraine Borough Council: should be strengthened to prevent mis-use, suggesting a 'penalty' planning application fee

LINK: Stop Notices should take effect immediately

Comments

Coleraine's suggestion is a matter for subordinate rather than primary legislation. Being considered as part of review of fees.

Department needs discretion on effective date for Stop Notice to ensure that other legislation is not breached, e.g., health and safety.

CLAUSE 7: OFFENCE WHERE ENFORCEMENT NOTICE NOT COMPLIED WITH

Down District Council: Need to clarify continuing offence

Historic Building Council: Subsection (8) Courts should have powers to order reinstatement of the building

Comments

Continuing offence defined in Article 72(6), unclear what clarification is required.

Department has power under Article 77 to require reconstruction of a listed building.

CLAUSE 8: EXECUTION OF WORKS REQUIRED BY ENFORCEMENT NOTICE

Down District Council: increase of level of fines for wilful obstruction of unauthorised work in compliance with an enforcement notice

Comments

Consistent with levels of fines elsewhere in planning legislation dealing with wilful obstruction.

CLAUSE 9: STOP NOTICES

Hearth Revolving Fund/Association of Preservation Trusts: Stop Notices should have immediate effect (cf. 3 days) except where health & safety is concerned.

Historic Building Council: Subsection 7(c) Courts should have powers to order reinstatement of the building

Comments

Department needs discretion on effective date for Stop Notice to ensure that other legislation is not breached, e.g., health and safety.

Department has power under Article 77 to require reconstruction of a listed building.

CLAUSE 10: CERTIFICATE OF LAWFUL USE OR DEVELOPMENT

Down District Council: need to state level of max. fine on false or misleading statements

PAC: Article 83 F (1) should be amended to reflect that only a Commissioner should be appointed to hear such an appeal

Comments

Draft model to be presented to Committee.

Level of fine set out in Article 83D(2) i.e., statutory maximum - currently £5,000.

Will be amended as requested.

CLAUSE 11: RIGHTS OF ENTRY FOR ENFORCEMENT PURPOSES

Coleraine Borough Council: level of fines for wilful obstruction inadequate

Comments

Consistent with levels of fines elsewhere in planning legislation dealing with wilful obstruction.

CLAUSE 12: LISTED BUILDINGS

Down District Council: welcome but additional powers needed for reinstatement or equivalent construction where unauthorised demolition has occurred

Hearth Revolving Fund/Association of Preservation Trusts: Higher fines by Magistrates Court to reflect any financial benefit plus this should relate 'per property' not 'per incident'

Historic Building Council: Subsection (1) (6) (a) Fines maxi mina should be increased to £1million & courts should have powers to order reinstatement of the building

UAHS: very concerned that loss of historic buildings in conservation areas is not addressed separately in Bill & want to see a much higher max fine (at least £1 million) necessary to act as an effective deterrent to rogue developers

Comments

In addition custodial sentences can be imposed, up to 6 months an 2 years respectively.

Department already has power to take action "per property", and powers to address demolition of buildings in a conservation area and reinstatement of listed buildings.

CLAUSE 13: HAZARDOUS SUBSTANCES

Coleraine Borough Council: max level of fines should be higher on summary conviction & level of fines inadequate in general

Comment

Level of fine to be increased to £30,000.

CLAUSE 14: REPLACEMENT OF TREES

Coleraine Borough Council: concern over grounds for appeal may be misused

RSPB: reservations that not enough TPOs will be imposed - need clarity re 'specified criteria'

Comments

Do not agree with Coleraine's concern. Will be for the PAC to decide whether an appeal is valid.

Not the Department's function to protect trees. Department only has discretion to put a TPO on trees on land considered under threat of development.

CLAUSE 15: DEMOLITION

Coleraine Borough Council: concern over meaning of 'development for planning purposes' - request new Article 11 (2) (f) with new definition

Coleraine Borough Council: clause should have regard to Draft Development stage of possible areas of Townscape Character Conservation Areas

CEF: serious concern on delay if demolition is brought into definition of proposed development

CEF: subsection (1) (d) amend wording

Down District Council: welcomes demolition inclusion but wish to see direction under Article 11 (2) (F) ASAP.

Hearth Revolving Fund/Association of Preservation Trusts: exclusion in 11 (2) (f) could undermine new power if only extended to ATCs. Should be extended to all buildings recommended for listing (cf. statutory listing) under consultation with HBC & DCs. Demolition should be extended to semi-detached and terraced houses

UAHS: Demolition should be regarded as 'development' outside ATCs

UAHS: Terraced & semi-detached houses should be included in the provision

LINK: Demolitions should be extended outside ATCs to all building under consideration for listing

Comments

It is currently the Department's intention to extend this new control to buildings in ATCs, identified in a Development Plan. Should the need arise the Department will have discretion, by issuing a revised Ministerial Direction, to extend the control to other classes of buildings.

CLAUSE 16: REVERSION TO PREVIOUS LAWFUL USE

No specific comments received.

CLAUSE 17: POWER OF DEPARTMENT TO DECLINE TO DETERMINE APPLICATIONS

CEF: Repeat Applications - delete clause pending consideration of responses in Modernising Planning consultation on this subject

Housing Executive: Difficulty in supporting this in the context of mischief - making or tactical submissions

Lisburn Borough Council: Repeat Applications - delete clause pending consideration of responses in Modernising Planning consultation on this subject

Comments

Proposal contained in 1999 Consultation Paper. Inclusion in MPP unnecessary.

CLAUSE 18: ASSESSMENT OF ENVIRONMENTAL EFFECTS

No specific comments offered.

CLAUSE 19: DISMISSAL OF APPEALS IN CASES OF UNDUE DELAY

CEF: delete clause or amend with subsection to refer to granting of planning permission delays due to the Department or third parties being responsible for undue delay in the progress of an appeal.

CEF: amend to introduce PAC powers to award costs against any party who has acted unreasonably

Lisburn Borough Council: delete clause or amend with subsection to refer to granting planning permission delays due to the development of third parties being responsible for undue delays in the progress of an appeal

Lisburn Borough Council: amend to introduce PAC powers to award cost against any party who has acted unreasonably

PAC: what constitutes 'undue delay'

Comments

Department would welcome Committees views.

CLAUSE 20: PLANNING AGREEMENTS

Housing Executive: Why were Planning Objections not introduced (cf. Planning Agreement) with wider scope, thus placing less restrictions on their use

Lisburn Borough Council: Article 40 (A) also 40 (A) (9) needs amended to reflect consultation with District Councils

PAC: Article 40 B (5) should be amended to reflect that only a Commissioner should be appointed to hear such an appeal

RSPB: Planning obligations/agreements should be secured within a clear strategic planning framework, including developments plans

Comments

Only the unilateral aspect of planning obligations is not being introduced in NI, all other provisions being taken on board.

No indication in the consultation responses of widespread support for Lisburn's proposal. Planning Agreements are drawn up between the planning authority and the applicant/interested parties. No current plans to change the law.

PAC concerns being addressed.

RSPB - Planning decisions are made in accordance with prevailing planning policies, including development plans. Planning agreements associated with a decision reflect those policies and plans.

CLAUSE 21: ADVERTISEMENTS

Down District Council: Department should by directive widen definition of advertisements

Lisburn Borough Council: Definition of advertising needs to be widened e.g. advertising on trailers should require planning consent (if in regular location)

Comments

Department is conducting a review of enforcing advertising controls. Possibly a matter for the next planning Bill.

CLAUSE 22: BUILDING PRESERVATION NOTICES

Down District Council: welcomes but Notice should come into force as soon as its is served on owner or occupier of building - threshold on such notices should be as wide as possible

Hearth Revolving Fund/Association of Preservation Trusts: BPMs - can these not be invoked on a precautionary basis?

Comments

BPN will become effective as soon as it is served - see article 42A(3)(a).

Can be invoked on a precautionary basis but Department will be liable for compensation if notice is not confirmed within 6 months.

CLAUSE 23: TREES

CEF: consultation with builders (and developers) is necessary

RSPB: reservations that not enough TPOs will be imposed - need clarity re 'specified criteria'

UAHS: Trees within the curtilage of listed buildings should automatically be protected by TPO's (as being proposed for conservation areas)

Woodland Trust: Article 65B: concern that with woodland there is no absolute requirement to replant the cleared area & land may be unprotected from development - see 3 specific suggested amendments

Woodland Trust: Article 66B: concern that large compensation payments to those refused planning consent due to TPO remains a disincentive to protect trees and woodland by TPOs - see specific suggested amendment

Comments

Land owners and those with an interest in land will be consulted prior to putting a TPO on trees.

Currently nothing to prevent Dept from putting a TPO on trees within the curtilage of a listed building. Not possible to give automatic protection to trees within the curtilage of a listed building due to legal difficulty in defining what curtilage is.

Not the Department's function to protect trees. Department only has discretion to put a TPO on trees on land considered under threat of development.

CLAUSE 24: STATUS OF DEVELOPMENT PLANS

Coleraine Borough Council: concern that certain Area Plans are outdated

CEF: delete clause pending consideration (as in clause 17) - unworkable until complete up-to-date development plan coverage

Lisburn Borough Council: delete clause pending consideration (as in Clause 17) - unworkable until completely up-to-date development plan coverage

RSPB: reservations that development plan policies do not clearly focus on Biodiversity Action Plan targets and deliver sustainable development

Comments

Provision to be given effect by appointed day procedure - currently being given further consideration by the Department.

CLAUSE 25: PLANNING APPEALS COMMISSION

PAC: Issue of delegation by Chief Commissioner of decision-making on appeals to individual Commissioners (resourcing implications)

Comments

Planning decisions made by minimum of 3 senior planners. Minister opposed to giving power to determine appeals to individual commissioners.

CLAUSE 26: GRANTS FOR RESEARCH AND BURSARIES

No specific comments received.

CLAUSE 27: GRANTS TO BODIES PROVIDING ASSISTANCE IN RELATION TO CERTAIN DEVELOPMENT PROPOSALS

Coleraine Borough Council: should contain egs of bodies

Coleraine Borough Council: should be extended to include grants to Planning Aid & others

Comments

This is a discretionary power. Each case to be determined on its merits.

CLAUSE 28: PLANNING REGISTER

No specific comments received.

CLAUSE 29: HOME LOSS PAYMENTS FOLLOWING PLANNING BLIGHT

No specific comments received.

CLAUSE 30: MINOR AND CONSEQUENTIAL AMENDMENTS AND REPEALS

No specific comments received.

CLAUSE 31: COMMENCEMENT

No specific comments received.

CLAUSE 32: SHORT TITLE

No specific comments received.

SCHEDULE 1 PARA 5

PAC: Suggestion that Article 32 (b) be amended to refer to 'Article 21,22 &25-28A'

Comments

Will be introduced as an amendment to the Bill.

OTHER CONCERNS/SUGGESTIONS:

THIRD PARTY APPEALS

Coleraine Borough Council: seriously consider Third Party Appeals

CEF: Believes that full consultation is necessary with all social partners before any introduction of Third Party Appeals - could cause further delays and backlog

Hearth Revolving Fund/Association of Preservation Trusts: Support introduction of powers for such appeals - required under Human Rights legislation

LINK: urge consideration

PAC: receiving legal advice that third party appeals may be required under Human Rights Act 1998

UAHS: strongly believe that such appeals should be included in the Bill

Comments

Draft paper on TPA model to be submitted to the Committee.

UNAUTHORISED DEVELOPMENT

Coleraine Borough Council: Introduce 'Penalty fee' for Unauthorised Development

RSPB: Introduce provisions in the Bill for a new offence of Commencing Development without Planning permission

Comments

Penalty fee is a matter for subordinate rather than primary legislation. Being look at as part of MPP.

New offence to be introduced as an amendment to the Bill.

ENFORCEMENT TEAMS

Coleraine Borough Council: Dedicated experienced Enforcement Teams

Comments

Department already has dedicated enforcement teams, the staffing levels of which are kept under review. Dept committed to being more proactive on enforcement.

ADDITIONAL STAFF

Historic Building Council: Need additional staff in Planning Service & EHS to administer new provisions

Comments

Additional staff being recruited.

NOTICES REQUIRING PLANNING APPLICATION

PAC: Article 23 & 24 of 1991 Planning Order - concern & opportunity in the Bill to tidy up anomaly

Comments

Awaiting outcome of court proceedings (judicial review).

SUSTAINABLE DEVELOPMENT

RSPB: Introduce provisions in the Bill for a clear statutory purpose for planning

Comments

Unclear what is meant by "clear statutory purpose for planning".

CROWN IMMUNITY

RSPB: Introduce provisions in the Bill to remove Crown Immunity (as with the commitment in the 'Modernising Planning Processes')

Comments

Being looked at as part of MPP.

BELFAST CITY COUNCIL AWAITING RESPONSE

ANNEX 19

LETTER FROM:
THE DEPARTMENT OF THE ENVIRONMENT

11 September 2002

You will be aware, that our Minister, Mr Dermot Nesbitt, will be appearing before the Committee on Thursday 12 September 2002.

As agreed with Jackie Lambe earlier this week, I enclose a copy of the paper on Third Party Planning Appeals, which has been prepared for discussion with the Committee. I also a copy of the draft Policy Memorandum on increasing the maximum level of fines that can be imposed in a Magistrates' Court and making it an offence to commence development without planning permission.

CORAL RITCHIE (MRS)
Assembly Liaison Officer

THIRD PARTY PLANNING APPEALS -
PAPER PREPARED FOR DISCUSSION WITH ENVIRONMENT COMMITTEE

- SEPTEMBER 2002

BACKGROUND

1. The Committee will be aware, from earlier discussions with officials, and from the policy paper presented in June 2002, of the wide range of issues which the Minister considers should be subject to public consultation prior to any decision being taken on the introduction of a third party right of appeal in planning matters.

2. At the presentation on 27 June 2002 the Committee asked the Department to prepare a third party appeal model, which could form a basis for discussion - this is considered later in this paper. The paper firstly summarises and records the consideration to date of this important topic.

PREVIOUS CONSIDERATION

3. The issue of third party appeals was the subject of previous consideration by the former Northern Ireland Assembly in 1983, the Northern Ireland Affairs Committee in 1996, and by a Departmental Working Group in 1999. In addition, in September 2000, the Department provided part funding for a research project by Queens University Belfast (QUB) to examine the possible implications for the planning system in Northern Ireland of introducing third party appeals. The Department commissioned further research by QUB in 2002 to examine third party appeal systems within the European Union.

4. The 1983 and 1996 considerations concluded that third party appeals would add delay and uncertainty to the planning process, would have resource implications and should not be introduced. The Departmental Working Group reached a similar conclusion.

5. The research carried out by QUB in 2000/2001 made no firm recommendations but suggested that any decision to introduce third party rights should be part of a wider fundamental review of the planning system. This is important and sets the context for the model and the related considerations outlined later.

6. The 2002 research project is particularly relevant to drawing up a possible model for third party appeals. The research demonstrated that while third party appeals are operating in a number of European Countries, there is a wide variety in the forms of appeal. For ease of reference the Committee is reminded that this variety stems from a number of factors, e.g.: -

• Time Limits. The time limits for making an appeal can range greatly;
• The body to which an appeal can be made. The body can be the authority that made the decision or a higher body.

• Rules of Standing. Appeals may be open to anyone or may be subject to a test of standing. There are a number of tests that can be applied and these include:

• Type of Decision. Appeals may be available on the basis of planning permissions, or a legally binding plan that allocates development rights. Appeals may be based on the decision-making procedure, or the substantive basis of the decision. Appeals can be made against any decision issued by the Planning Authority or may be restricted to certain decisions only. The restrictions include: -

7. A summary of this research, prepared for the Environment Committee in June 2002, highlighted the various differences in the appeal systems operated throughout the European Union jurisdictions. The research demonstrated the wide range of issues to be considered and the variety of possible options and highlighted the difficulty in devising a "model" third party appeal system.

BENEFITS/COSTS OF THIRD PARTY APPEALS

8. Previous presentations to the Committee have considered the many benefits/disadvantages of a third party right of appeal and these are considered briefly below. It is important that any "model" scheme should maximise the benefits and limit the disadvantages in terms of delay, uncertainty, and costs, etc.

9. The perceived benefits of third party appeals include: -

• Equity, i.e. addressing the perception that the current position is inequitable - disappointed applicants may appeal to the Planning Appeals Commission (PAC) but third party objectors cannot;
• An alternative means of challenging planning decisions for parties who feel that the Department has not properly considered their views; and
• Encouraging developers to engage with third party objectors to produce a more balanced and acceptable development proposal.
• Enhanced confidence in the planning process as a result of increased transparency

10. The likely disadvantages include: -

• Resource implications - additional professional and administrative resources to manage the increased workload for both the Planning Service and the PAC. OFMDFM now has responsibility for the PAC and it's resourcing, and would have a strong interest in any proposal to introduce a third party appeal system and any likely funding implications for the PAC. The Department will have to give careful consideration to all of the resource implications of introducing third party planning appeals. Currently, no provision exists for the recruitment, employment, training or housing of the necessary additional resources. A detailed bid will be required to obtain these resources and, to support such a bid, the Department would need to be absolutely clear about the proposed scope of a third party appeal system and the related resource implications.
• Reduced confidence in the planning process as a result of increased delay and uncertainty;
• The likely economic impact within Northern Ireland which may result from the greater uncertainty within the planning process. The possible impact of third party appeals on the pace of development could cause concern to the business/development sector. Indeed a prolonged planning process caused by third party appeals could result in delays and costs to developers which might be perceived by developers as introducing a new element of uncertainty which could adversely affect investment in property development, particularly in our towns and city centres.

CURRENT PROCEDURES

11. Whilst the Committee is already aware of the current procedures available to third party objectors, these form an important part of the planning process and will inform consideration of any third party appeal model. Brief details are included below: -

• the neighbour notification scheme
• public advertisement of applications;
• third parties can make representations or submit objections at any stage in the process prior to the issue of the final decision;
• third parties can lobby Councillors to object on their behalf at District Council consultation stage
• Councils can refer a planning application to the Planning Service Management Board for re-consideration. This process allows third party oral and written representations;
• planning applications are available on a Public Register including the actual plans, retail and traffic impacts and environmental statements, where required;
• open file policy - the application file is available, including consultation replies, representations and the Development Control officer's report (subject to the actual stage the application has reached, i.e. whether pre or post consultation with Council;
• Council planning schedule publicly available;
• planning clinics are held in certain towns when planning applications are available for inspection;
• reasons for any decision are provided to all interested parties;
• when a third party is unhappy with a planning decision on a point of law, he/she may apply to the Courts for Judicial Review;
• when a third party is unhappy with the way in which the Planning Service has handled a planning application, he/she may refer the matter to the Parliamentary Commissioner for Administration.
• there is an independent, internal, complaints procedure
• the Department may designate major development proposals as Article 31 and call for a public inquiry.
• at Development Plan stage, interested groups and individuals have the opportunity to make representations in relation to draft development plans and attend public inquiries;

12. Some of these procedures have been introduced only recently, as a result of a review by Planning Service of the current arrangements within the context of the Human Rights Act. This has resulted in even greater levels of transparency within the planning process, creating further opportunities for third parties to access the planning system and make representations. Within GB no planning authority offers such a range of open and transparent measures.

13. It is worth noting that in other EU jurisdictions where third party appeal systems are available, there are significantly reduced levels of public participation and consultation in the pre-decision process. There may be a need to review current Northern Ireland arrangements in the context of any third party appeal system being introduced.

Possible Model for Third Party Planning Appeals

14. The QUB research highlighted the importance of having clearly agreed policy objectives to set the framework for a third party appeal system. The model below has been prepared on the basis of the following set of policy objectives, which are presented for discussion. The Committee's views on these policy objectives would be welcomed.

Policy Objectives

• To ensure equity - i.e. to allow third parties the same opportunity as that afforded to applicants to challenge planning decisions.
• To provide greater confidence in the planning system
• To minimise any additional delay/uncertainty etc.
• To ensure that any third party planning appeal system meets the requirements of Human Rights legislation.

15. The model considers issues such as the appeal body, who should be able to appeal, the decisions to be appealed, fees, appeal periods and other issues. The Department believes that, until full public consultation has been carried out, it is impossible to be definitive about these aspects of any third party appeal system. The suggestions outlined below are, therefore, only the Department's preliminary views. Where necessary, the paper poses questions for discussion.

The Appeal Body

16. In relation to the person/body that should hear third party planning appeals, a number of options have been identified, i.e. appeals to -

• The Minister; or
• Planning Appeals Commission; or
• A new Environmental Court

It is suggested that, if third party appeals were to be introduced, the appeal body should be the Planning Appeals Commission. The Commission has been operating as an independent appellate body in Northern Ireland since its establishment in 1973. It decides first party planning appeals against departmental decisions and hears and reports on Public Inquiries in relation to other planning matters.

Who May Appeal?

17. Given the first policy objective - to ensure equity - the Committee is asked to consider whether any proposed model should be as unrestricted as possible. This would involve making the right of appeal available to all, i.e. individuals, environmental groups, residents groups, District Councils, etc. Alternative approaches have been considered. These would involve limiting access to specific groups e.g.

• neighbours only
• individuals who can demonstrate sufficient interest
• environmental groups
• residents groups
• District Councils
• or any combination of the above

However, given the policy objectives of ensuring equity and natural justice, it may be difficult to limit or restrict the model in this way.

If any proposed third party appeal system were to be unrestricted this would have implications for: -

• resources, and
• delay, and
• uncertainty within the planning process

There should therefore be some mechanism to prevent frivolous appeals and to prevent appeals placing an unreasonable burden on the planning system.

For example:

(a) appeals could be restricted to those who made previous written submissions at planning application stage

(b) there should be an appeal fee - this is considered later in the paper

(c) the appeal body should have discretion to dismiss vexatious or frivolous appeals

In addition, Environment Committee members have suggested that -

(a) appeals could be restricted to those cases where a majority of Councillors within a Council has opposed the Department's proposed decision

(b) appeals could be restricted to decisions which depart from a Development Plan

However, if any proposed system was to be as unrestricted as possible, to ensure equity and natural justice, further consideration will have to be given to whether or not these further restrictions should be applied.

18. A number of questions are posed for discussion: -

(i) Should the right of appeal be available to all third parties?

(ii) If not, what restrictions should be applied?

(iii) If restricted to only those planning permissions not supported by the District Council, might individuals argue that their right to appeal is being unfairly linked to District Council agreement? Would this raise Human Rights issues? Could a system linked to District Council support lead to future difficulties, if, following the Review of Public Administration, responsibility for planning decisions is transferred to District Councils? Councils could not perform both roles?

(iv) Could the right of appeal be further restricted to individuals who can demonstrate direct interest/impact? How would this be tested?

Decisions to be Subject to Third Party Appeal

19. The right of appeal most frequently used by applicants against planning decisions is that contained within Article 32 of the Planning (Northern Ireland) Order 1991 which states that where an application is made to the Department: -

• for planning permission to develop land; or
• for any consent, agreement or approval of the Department required by a condition imposed on a grant of planning permission; or
• for any approval of the Department required under a development order

then if that permission, consent, agreement or approval is refused or is granted subject to conditions, the applicant may by notice in writing under this Article appeal to the Planning Appeals Commission.

20. In addition to the above, there are also specific rights of appeal for first parties under other Articles of the 1991 Order. These include appeals against: -

• A notice requiring a planning application (Article 24 (4))
• Non-determination appeals (Article 33)
• Determination whether planning permission is required (Article 41)
• Refusal or conditional grant of listed building consent (Article 45(6) and Schedule 1)
• Determination that listed building consent is required (Article 48(2) and Schedule 1)
• Refusal of consent to demolish buildings in conservation areas and determinations that such consent is required (Article 51(5) and Schedule 1)
• Hazardous substances consents (Article 57(1) and (7))
• Refusal of consent for the cutting down, topping, lopping, or wilful destruction of protected trees (Article 65(1) and the Schedule to the Planning (Tree Preservation Order) Regulations 1973).
• Notice requiring applications for consent to display advertisements (Article 67 and Regulation 12 of the Planning (Control of Advertisements) Regulations (NI) 1992)
• Refusal or conditional grant of consent for the display of advertisements (Article 67 and Regulation 12 of the Planning (Control of Advertisements) Regulations (NI) 1992)
• Enforcement notices and associated deemed planning applications (Article 69)
• Listed building enforcement notices (Article 78)
• Notices of urgent works to preserve buildings (Article 80(8))
• Enforcement of duties relating to the replacement of protected trees (Article 82(4))
• Special enforcement notices relating to Crown Land (Article 116(6))

21. The Planning (Amendment) Bill will introduce further rights of appeal in relation to Planning Agreements and Certificates of Lawful Use or Development.

22. In addition, there are 19 separate provisions in the Planning (Northern Ireland) Order 1991 covering matters on which the Planning Appeals Commission can hear representations and then report it's findings, and recommendations, to the Department. Examples include hearings relating to Notices of Opinion on major Article 31 planning applications, or a Notice revoking planning permission. These provisions are commonly known as the 'Hear and Report' functions of the Planning Appeals Commission, as the Commission hears the representations, reports the evidence and makes a recommendation to the Department, but the final decision remains with the Department.

23. Before any model for third party appeals can be fully developed, it is necessary to consider which of these various decisions/processes should be subject to third party appeal.

24. Article 32 of the Planning (Northern Ireland) Order 1991 provides for appeals against decisions on, amongst other things, applications for approval of both householder development and reserved matters proposals. Currently these matters are exempt from publication. Householder development is exempted under the Planning Applications (Exemption from Publication) Order (Northern Ireland) 1999. Reserved matters applications are exempted because the outline application has already been advertised and the principle of development on the site has therefore been established. Reserved matters applications deal with the details of the proposed development, which are not required at outline application stage.

25. If these decisions were to be open to a third party right of appeal, then it would be necessary to ensure that anyone who might have an interest is made aware of the application. This would require legislative change including the repeal of the Planning Applications (Exemption from Publication) Order (Northern Ireland) 1999. Given the nature of such applications it is likely that a high number of appeals could be generated, including vexatious appeals, neighbour against neighbour appeals, and possibly duplicate appeals for reserved matters, where the outline permission may have already been the subject of appeal. Advertisement of such applications could double Planning Service's advertising costs, which totalled £549k in the 2001/2002 financial year.

26. It is suggested, however, given the policy objectives set out in paragraph 14, that in addition to full planning applications, reserved matters and householder development applications might also be included in any new third party right of appeal.

27. It is also suggested, given the likelihood of third party interest in applications for listed building consent, applications for consent to demolish buildings in a Conservation Area, TPO consents, Advertisement Consents, Hazardous Substances Consents, Article 41 and Article 48 determinations, that there may be a case for such applications to be included in any third party right of appeal system. However, this would create a very wide-ranging third party appeal system and would have significant implications for the efficiency of the planning process in terms of delay and uncertainty, as well as resource implications. The Department would welcome the Committee's comments on the merits of extending third party appeal rights to these additional decision processes.

28. The Department cannot foresee circumstances in which a third party might wish to exercise a right of appeal in the following processes: -

• a notice requiring a planning application
• non-determination appeals
• notice requiring applications for consent to display advertisements
• enforcement notices and associated deemed applications
• listed building enforcement notices
• notices of urgent works to preserve buildings
• enforcement of duties relating to the replacement of protected trees
• special enforcement notices relating to Crown Land

It should be noted, however, that interested third parties are able, in any case, to attend and make representations at any appeal hearing relating to these matters. The Committee's views on the need for a third party right of appeal in these various processes would also be helpful.

29. This leaves a range of application processes where third party rights could be extended and where further consideration is needed. These include: -

Article 31 Notices of Opinion on major planning applications; and

Article 56 Notices of Opinion relating to major hazardous substances applications.

In both of the above cases, where a Notice of Opinion to refuse has been issued, the applicant can request a hearing before the Planning Appeals Commission and the Department is required to take into account the report of the Commission, before reaching its final decision on the application. To ensure equity, it is suggested that the right to appear before the Planning Appeals Commission might be extended to third parties in respect of Articles 31 and 56 applications, where Notices of Opinion to approve have issued.

30. In relation to the other 'Hear and Report' functions of the Commission, referred to in Paragraph 21, the Department cannot foresee circumstances, other than those referred to in paragraph 29 above, in which a third party might wish to exercise a right to appear before the Planning Appeals Commission.

Issues for Discussion

31. The Department believes that the merits and implications of introducing third party rights of appeal in all of the various decisions and processes require further detailed consideration. The Committee will note the wide range of potential options highlighted and the Department's comments relating to which decisions might be included in the third party appeal model..

32. The Department believes that further consideration is needed before any conclusions are reached on how extensive any new third party right of appeal should be. The following issues are included for discussion -

• The potential implications for added delay/uncertainty within the planning process
• The possibility of large numbers of appeals from neighbours against householder development applications
• The additional time taken to process such applications
• The possible merits of limiting any right of appeal to specific application types

FEES

33. Legislative responsibility for the setting of appeal fees rests with the Office of the First Minister and Deputy First Minister and it will be necessary to consult that office on the issue of fees for third party appeals.

34. Given the policy objectives listed in paragraph 14, it is suggested that, if third parties are to be given the same right of appeal as that available to first parties, then it would seem to be equitable that the third party appeal fee should be the same as that for first party appellants, currently £126. This fee essentially recovers the cost of advertising an appeal. The following points, however, are included for discussion: -

• Would it be appropriate to include an additional element in the appeal fee to reflect more fully the cost to both the Department and the PAC of considering the application?
• The ROI experience suggests that the average delay from a third party right of appeal is 11.4 months. A higher level of fee for third party appeals might be an option to be considered as a deterrent to frivolous or vexatious appeals. However, if this was done, it could also act as a deterrent to genuine objectors.

35. The Committee's views are sought on the following questions: -

• Should the appeal fee for third party appeals be the same as that for first party appeals?
• Should the fee be set at a higher level as a deterrent to vexatious/frivolous appeals and to recover more fully the resource costs?
• Would a higher level of fee act as a deterrent to genuine objectors?

APPEAL PERIOD FOR THIRD PARTY APPEALS

36. The Department's consultation paper, Modernising Planning Processes, was designed to initiate discussion on a range of ideas and options for improving the operation of planning processes in Northern Ireland. Section 4.99, dealing with the appeal period for first party appeals, recognises that both local communities and developers need greater certainty about whether an appeal will be made when a planning application has been refused or approved with conditions. The paper indicates that it is the Department's view that the current appeal period for an applicant, i.e. 6 months, is too long and that it proposes to reduce this period to 3 months.

37. Responses to the consultation paper are currently being analysed, but initial findings indicate that views are divided on this issue. The business sector favouring the retention of the 6-month time limit and others, including District Councils, residents associations, environmental groups, etc. generally agreeing that the time limit should be reduced.

38. The introduction of third party appeal rights will reduce certainty for developers who have received a planning approval. It is suggested that the appeal period for third parties should reflect the possibility of development opportunities being lost as a result of the introduction of this further stage in the planning application process. It may be necessary, if third party appeals were to be introduced, to reduce the appeal period further for all appeals, to minimise the period of uncertainty during which an appeal might be made.

39. The Committee's views are sought on the following questions: -

• Should the appeal period for first and third party appeals be the same?
• If yes, should this be the reduced period of 3 months?
• In the interest of guarding inward investment opportunities for Northern Ireland, should the period for third party appeals be shorter?

OTHER ISSUES

40. This section reflects wider issues relating to the planning process and poses a number of questions about the merits of wider changes which may be necessary to enable the planning system to operate as efficiently as possible. This reflects the recommendations of the QUB research papers that the introduction of third party appeals should be part of a wider fundamental review to "retune" the planning system to the existence of these new rights. It is suggested that further consideration of the following issues is needed: -

• the neighbour notification

• District Council consultation;

• Review of Public Administration - Given the possibility that at least some planning functions could be returned to local government, is it premature at this time, to introduce third party appeals in advance of the Review recommendations - in particular, the desirability of transferring a body of planning decisions from locally accountable politicians to the Planning Appeals Commission?

REGULATORY IMPACT ASSESSMENT

41. It is clear that no matter what form of third party appeal might be introduced, this would have resource implications for both the Planning Appeals Commission and the Planning Service and would create additional workload pressures and costs for the Northern Ireland budget (Roads Service, Water Service, Environment and Heritage Service, as well as Planning Service and the Planning Appeals Commission). It would also impose additional costs on the wider Northern Ireland economy, particularly for those proposing development (both the development industry and private individuals) which would become subject to third party appeal. Those costs would be both direct (dealing with appeals, legal costs etc) and indirect (the opportunity cost of delay, and financing costs arising from delay). The agreement of the Department of Finance and Personnel and the Executive Committee would therefore have to be sought before legislative change introducing such a measure could be considered. This suggests the need for a detailed Regulatory Impact Assessment of the resource and wider economic implications and this should be considered as a vital part of the process.

PUBLIC CONSULTATION

42. The Department and the Minister strongly believe that full public consultation is needed to expose all of the issues raised and to seek the views of all of those with an interest in planning in Northern Ireland. The Committee is aware of the ongoing consultation process relating to the Department's Modernising Planning Processes (MPP) paper. Responses to the consultation paper are currently being analysed and the Committee will wish to be aware that initial findings indicate that views are divided on the issue of third party planning appeals. On the one hand, community interests and individuals are overwhelmingly in favour, while on the other, business and commercial interests are practically unanimous in their opposition to the introduction of third party planning appeals. While customer views are clearly diverse, there is a clear consensus amongst all consultees that further consultation must be undertaken before a third party appeal model is introduced.

SUMMARY

43. This paper demonstrates the wide range of issues involved in preparing a "model" for a third party planning appeal system. The Committee will have noted the range of alternatives highlighted, particularly relating to the possible scope of the model, and the Committee's comments on these issues would be helpful.

44. Finally, the Minister and the Department look forward to discussions with the Committee on this paper.

DRAFT

PLANNING (AMENDMENT) BILL 2002

POLICY MEMORANDUM ON INCREASING THE MAXIMUM LEVEL OF FINE IN A MAGISTRATES' COURT FOR BREACHES OF PLANNING CONTROL AND MAKING IT AN OFFENCE TO COMMENCE DEVELOPMENT WITHOUT PLANNING PERMISSION

Introduction

1. This Policy Memorandum outlines the background to the Department's proposals to introduce amendments to the Planning (Amendment) Bill to increase the maximum level of fine that can be imposed in a magistrates' court for breaches of planning control from £20,000, the level currently proposed in the Bill, to £30,000, and to make it an offence to commence development without planning permission. It discusses the cost implications of the proposed amendments and their impact on equality of opportunity and human rights issues. It also addresses North/South relations and EU issues.

Background and Policy Objectives

2. During discussions with the Environment Committee about the Planning (Amendment) Bill, the Committee expressed concern about the apparent disregard by some developers for the requirement to obtain planning permission prior to commencing development. The commencement of unauthorised development is a cause of great concern to the general public and the Committee's view clearly is that the deterrent value of making such development a criminal offence is the best way of dealing with the matter.

NI Position

3. In Northern Ireland the powers available to the Department to deal with breaches of planning control, including development started without planning permission, are set out in two different provisions in the Planning (Northern Ireland) Order 1991. These are: -

• Article 23, which provides the Department with powers to require the submission of a planning application for development carried out without the grant of planning permission; and,
• Article 68, which provides the Department with powers to issue an Enforcement Notice requiring a breach of planning control to be remedied.

Current Difficulties

4. The Department has experienced difficulties in recent years in pursuing enforcement action as vigorously as it would like. However, the Department is committed to being much more pro-active in pursuing breaches of planning control and to ensuring quicker and more effective enforcement action. This is to be accommodated, in part, by the introduction of the Planning (Amendment) Bill.

5. The Department has indicated to the Environment Committee that the new powers and higher penalties within the Bill, together with it's commitment to pursue enforcement more vigorously, will enable quicker and more effective enforcement action to be taken in relation to all breaches of planning control. However, to reflect the Committee's concern that the proposed £20,000 maximum level of fine that can be imposed in a magistrates' court for breaches of planning control does not go far enough, the Department proposes increasing this further to £30,000 to reflect inflation since the amount was first set in England, Scotland and Wales in 1991. This will add to the deterrent value of the provisions in the Bill.

6. The Committee has, however, continued to express concern that not enough is being done and that commencing development without planning permission should become an offence. The Committee has argued that this would create a very strong deterrent against unauthorised development.

GB Position

7. Over the years, the Westminster Government has continually resisted repeated attempts to make breaches of planning control a criminal offence on the grounds that it was unnecessary, and that existing enforcement procedures provided a more pragmatic approach to dealing with breaches of planning control.

8. In its consideration of the Planning and Compensation Bill, on which the current Northern Ireland Planning (Amendment) Bill is largely based, the Government resisted several amendments, moved at different parliamentary stages, aimed at making breaches of planning control criminal offences.

ROI Position

9. Under Section 151 of the Republic of Ireland's Planning and Development Act 2000, it is an offence to commence development without first having obtained planning permission. Provision also exists, however, for normal enforcement action to be taken using enforcement procedures similar to those that exist in Northern Ireland. Discussions with officials in the Republic have indicated that prosecutions in the Courts can be difficult because the Courts prefer to see the normal enforcement process exhausted. The provisions that allow a case to be taken direct to the Courts are, however, used and prosecutions are achieved providing a strong deterrent

QUB Research.

10. In April 2002, the Department commissioned research by Queens University, Belfast to: -

• Identify planning enforcement systems operating in other jurisdictions of the European Union;
• Establish the mechanisms available to deal with breaches of planning control within those systems; and,
• Evaluate the effectiveness of such mechanisms and, where possible, focus specifically on their deterrent value and the merits of punitive measures.

11. This research has now been completed, and consideration of the findings indicates that there is merit in making it an offence to start development without planning permission. The research suggests that where it is transparent to the developer that the consequences of unauthorised development will be severe, planning enforcement is more effective. The Planning Service believes that such a provision would greatly assist its ability to respond effectively to unauthorised development. The research also confirms that in most of continental Europe, it is an offence to start development without the necessary permissions.

Options Considered

12. The proposed amendments are being drawn up in response to an Environment Committee request that the maximum level of fine that can be imposed in a magistrates' court for breaches of planning control be increased beyond that proposed in the current Bill, and that provisions be introduced to make it an offence to commence development without planning permission. These proposals meet that request.

Consultations

13. The proposals are being introduced as an amendment to the Bill in response to a direct request from the Environment Committee. Accordingly, no public consultation exercise has been carried out. The proposals are, however, closely linked to the main aims of the Bill, which are to enhance and strengthen the Department's enforcement powers. In addition, the Department's original consultation on the Bill's proposals in 1999, indicated some support both for increased levels of fines and tougher penalties for development commenced without planning permission. The recent public consultation exercise on Modernising Planning Processes has also indicated some support for making it an offence to commence development without planning permission.

14. The Department has consulted with the Northern Ireland Court Service on the proposed amendments. The Court Service has indicated that it is content with the proposals.

Conclusions

15. It is proposed: -

• to increase the £20,000 maximum level of fine (currently proposed in the Bill) that can be imposed in a magistrates' court for breaches of planning control, to £30,000; and
• to make it an offence to commence development without planning permission. It is proposed that the level of fine that can be imposed on conviction shall be the same as that for breaching an enforcement notice, i.e., up to £30,000 on summary conviction in a magistrates' court, and unlimited on conviction on indictment in a Crown Court. The Department will have discretion as to whether to pursue a case directly in the Court or by means of an enforcement notice. A Planning Policy Statement will be prepared, and issued for public consultation, which will set out the Department's revised policy approach on enforcement.

Financial Effects of the Proposal

16. While the precise resource implications are difficult to quantify, the Department believes that the ability to take a breach of planning control direct to the Courts, without having to go through the current lengthy, cumbersome and complex enforcement process, will reduce the administrative burden on those cases that are subsequently subject to Court proceedings. By acting as a powerful deterrent to unauthorised development, the need for enforcement proceedings may be lessened. No additional resource implications are anticipated.

Regulatory Impact Assessment

17. A Regulatory Impact Assessment is not considered necessary.

Equal Opportunities

18. An Equality Impact Assessment was not considered necessary as screening was carried out (see Annex attached to this memorandum). The screening analysis in Section 2.0 of the attached document shows that the proposals contained in these amendments raise no implications for equality of opportunity or community relations.

Human Rights Issues

19. The proposed amendments are considered to be fully compatible with Human Rights legislation and we will seek legal confirmation of this prior to submitting draft clauses to the Assembly.

Impact on new Targeting Social Need

20. The proposed amendments will have no impact on new targeting social need.

Impact on Relations, Co-operation or Common Action on a North/South or East/West basis

21. It is unlikely that the proposed amendments will have any impact on relations, co-operation or common action on a North/South or East/West basis.

EU Implications

22. The proposed amendments have no EU implications.

Creation of Offences

23. As the proposed amendments will make provision for a new offence and set a higher maximum level of fine for non-compliance with an enforcement notice, the Secretary of State's consent under section 10(3)(b) of the Northern Ireland Act 1998 will be required. The Minister has already had informal discussions with the Secretary of State and it is anticipated that a formal case will be presented to the Secretary of State as soon as possible after Executive Committee agreement has been secured.

ANNEX

NORTHERN IRELAND ACT 1998 (SECTION 75)
STATUTORY EQUALITY OBLIGATIONS

SCREENING FOR EQUALITY IMPACT ASSESSMENT

1.0 General Details

1.1 Title of policy/policy document/Regulations and date to be introduced

The Planning (Amendment) Order 2002. It is anticipated that the Order will receive Royal Assent in April 2003 and come into operation in July 2003.

1.2 Brief summary of the Policy and background to the Order

This Order is being introduced to meet the request of the Northern Ireland Affairs Committee that the Department replicate the new provisions introduced in GB by the Planning and Compensation Act 1991. The purpose of these provisions is to streamline and strengthen existing planning enforcement powers and give primacy to development plans in the determination of planning applications.

1.3 Aims of the policy/policy document/Regulations

These new enforcement measures will make it easier for the Department to take action against unauthorised development and, with certain modifications, will also apply to Listed Buildings, buildings in Conservation Areas and Hazardous Substances.

To provide improved control over development, primacy is being given to development plans in the determination of planning applications. In addition, measures are included to broaden the scope of Planning Agreements and to bring demolition within the meaning of development.

New and enhanced powers to afford greater protection to trees, including new enforcement powers enabling the Department to deal more effectively with breaches of Tree Preservation Orders, are also included

The final aim includes measures to provide greater flexibility for the Planning Appeals Commission. These measures are the combination of the Planning and Water Appeals Commissions, the new Commission being given the authority to make decisions on a collective rather than a corporate basis and individual Commissioners being authorised, in certain cases, to report their findings on hearings directly to the Department.

2.0 Screening Analysis

Screening aims to identify those proposals, which are likely to have the greatest impact on equality of opportunity and community relations. This is assessed against the nine categories listed below:

(1) Persons of different religious beliefs

(2) Persons of different political opinions

(3) Persons of different racial groups

(4) Persons of different ages

(5) Persons of different marital status

(6) Persons of different sexual orientation

(7) Men and Women generally

(8) Persons with a disability and persons without

(9) Persons with dependants and persons without

2.1 Is there any evidence of higher or lower participation or uptake by different groups within any of the nine categories?

There is no evidence that there would be a higher or lower participation or uptake by different groups within any of the 9 categories.

3.0 Impact Assessment Decision

The amendment of the legislation to streamline and strengthen existing planning enforcement powers and to give primacy to development plans in the determination of planning applications is not considered likely to have significant implications for equality of opportunity or community relations.

Do you consider, taking account of the Screening Analysis in Section 2.0 that this policy/policy document needs to be submitted to a full equality impact assessment?

3.1 Reason for Decision

As a result of the screening analysis in Section 2.0 it is considered that there are no equality of opportunity or community relations implications as a result of the changes to the legislation.

ANNEX 20

LETTER FROM:
THE MINSITER
DEPARTMENT OF THE ENVIRONMENT

2 October 2002

You will recall that during the presentation to the Environment Committee on 5 September 2002, the Committee raised a number of issues with officials on clauses 1-9 in the Planning (Amendment) Bill.

As some of these issues raised policy matters, officials undertook to consider them further and consult me with recommendations. I am now writing to you to advise the Committee of the outcome of my deliberations on these issues.

Clause 1 - Planning Contravention Notice;

Clause 2 - Breach of Condition Notice; and

Clause 8 - Execution of works Requires by an Enforcement Notice.

I understand that the Committee had the same concern in respect of all three of the above clauses, namely, that the proposed level of fine ("not exceeding Level 3 (currently £1,000) on the standard scale") would not act as a sufficient deterrent. The Committee was of the view, and this was also the view of a significant number of consultees, that a figure of £5,000 (the statutory maximum) would be more appropriate.

I empathise with the Committee's view on this, and intend putting proposals to the Executive Committee and the Secretary of State shortly, proposing an increase in the maximum fine that a Magistrate's Court can impose on conviction from the current Level 3 (£1,000) maximum to the statutory maximum (£5,000).

For the purposes of consistency, I also intend putting to the Executive Committee and the Secretary of State, proposals to increase to the statutory maximum, the level of fine available to the court for an offence under Article 22(6) of the Planning (NI) Order 1991, in respect of a person who deliberately falsifies information on a land ownership certificate that accompanies a planning application and, Article 66(2), in respect of a person who contravenes a Tree Preservation Order otherwise than in a way likely to destroy a tree. Currently, under the Planning (NI) Order 1991, the maximum level of fine available to the court for an offence under both articles is Level 3 (£1,000).

Clause 9 - Stop Notices

I am advised that the Committee expressed concern that the minimum three-day period between a Stop Notice being served and it coming into operation would continue to be the norm, except where the Department considered there were special reasons for specifying a shorter period. The Committee's view was that a Stop Notice should always have immediate effect unless there were specific reasons, ie, health and safety, why it should not have immediate effect.

While I have some empathy with the Committee's view on this, it might be helpful if I explain the background to the stop notice procedure and the context within which such notices are used. The minimum three-day period between a stop notice being served and it coming into operation has been a feature of the stop notice procedure since its introduction in England and Wales in the Town and Country Planning Act 1968. Stop notices were introduced in Northern Ireland in the Planning (NI) Order 1972. A stop notice is in effect, a power made available to local planning authorities, which is similar, but less onerous than a court's power of injunction to stop an unauthorised activity. When originally introduced, the purpose of the minimum three-day period was to allow a reasonable period of time within which to comply with the measures required by the stop notice and to prevent it from having an immediately catastrophic effect on a company, which may be brought to a standstill if a stop notice prohibits some vital activity (eg delivery of essential raw materials) on the premises, and takes immediate effect.

In addition, because an appeal to the Planning Appeals Commission effectively suspends an enforcement notice until the appeal is determined or the notice is withdrawn, the stop notice provisions enable the Department to deal effectively with the interim situation. The stop notice provisions enable the Department to serve a stop notice prohibiting the carrying out on the enforcement notice land, any activity which is within the breach of control alleged within the enforcement notice. The stop notice may require any such activity to cease until the date when the compliance period specified in the enforcement notice expires.

The power to specify a period of less than three days was introduced in GB by the Planning and Compensation Act 1991. This was to enable local planning authorities to deal more effectively with some especially damaging activities (eg large-scale waste-tipping or the extraction of sand or gravel in environmentally sensitive areas), where three days was considered to be too long a period. Clause 9 of the Bill will introduce this power into Northern Ireland's planning law and will allow the Department to give a stop notice immediate effect in circumstances where it is considered that an activity should be stopped immediately.

I would point out, however, that for very serious breaches of planning control, the Department will, of course, also have available the new power being introduced by Clause 3 of the Bill, to apply to the court for an injunction to restrain any actual or apprehended breach of planning control The stop notice provisions under Clause 9 give the Department a further means of halting unauthorised development. The powers used by the Department will be determined on a case by case basis.

Clause 9, therefore, already goes a long way towards meeting the Committee's concern, in that, the Department will be able to specify a period of less than three days between a notice being served and it coming into operation, where it considers it appropriate (eg in the case of development likely to cause serious harm or damage). However, because a stop notice can have immediately serious consequences, it will be necessary to carry out a cost/benefit assessment to examine the foreseeable costs to the company, operator or landowner against whose activities the stop notice is directed, and the benefit to amenity in the vicinity of the site, which is likely to result. In addition, the Department will have to carry out an assessment of the risk of having to pay compensation for any financial loss which the recipient of the stop notice may incur, should an appeal against the associated enforcement notice be successful.

In these circumstances, and given the new powers of injunction under Clause 3, I am not persuaded that an amendment to the stop notice provisions in the Planning (NI) Order 1991, beyond that being proposed in Clause 9 is required. I do propose, however, that the precise circumstances as to when the Department is likely to specify a date shorter than the three-day period will be spelt out clearly in the revised Planning Policy Statement (PPS) on enforcement, which will be drawn up on the new enforcement provisions in the Bill. The Committee would, of course, be consulted on the draft PSS, and would have an opportunity to contribute to it.

Finally, the Committee should also note the significant new powers being made available to the Department to deal effectively with offences involving non-compliance with a stop notice. These new provisions will significantly strengthen the Department's ability to deal with this type of offence.

Protection of Trees

I understand that the Committee again raised its concern at the common practice of developers' clearing a site of trees in advance of development. In particular, before the Department has had an opportunity to consider placing a Tree Preservation Order on the land. The Committee feels that more needs to be done to protect trees.

Again, I empathise with the Committee's view on this and indeed I share the Committee's concerns. However, the Department's policy on the protection of trees has always been one based on selective designation, rather than a blanket safeguarding system. The Committee is aware of the operational and practical difficulties of blanket protection and has suggested that linking site clearance of trees with a development proposal, so that planning permission would be required for the removal of the trees, might be a possible solution. Such a change to the statutory definition of development would be fundamental to the whole development control process and its implications on provisions elsewhere in planning law would have to be very carefully assessed. In addition, the Department believes that the impact of such a provision would be of limited, if any practical effect, as a developer or landowner could simply remove the trees from a site before a development proposal was submitted or even contemplated.

Nevertheless, I share the Committee's concerns and have asked officials to engage further with the Departmental Solicitor to consider how additional protection for trees might be achieved.

Imposition of Custodial Sentences for all Breaches of Planning Control

Finally, I am advised that the Committee has suggested that the new custodial sentences being made available to the court for dealing with breaches of listed building consent should also be made available to the courts for dealing with all other breaches of planning control.

The Department's primary objective with the Bill was to give effect to the enforcement provisions introduced by the Planning and Compensation Act 1991 in England, Scotland and Wales. However, I believe that the extension of the new custodial sentences would add to the range of punitive powers available to the courts for dealing with all breaches of planning control. The 1999 consultation exercise, together with the Committee's own consultation exercise, indicated strong support for the penalties available to the court for dealing with breaches of planning control to be as punitive as possible. The proposal sits neatly with the new offence of commencing development without planning permission and will send a clear message to those who flagrantly and frequently breach planning controls that the Department is serious in what it proposes.

Accordingly, I intend putting proposals to the Executive Committee and the Secretary of State, for approval, recommending that the new custodial sentences being made available to the court for dealing with breaches of listed building consent should also be made available to the courts for dealing with all other breaches of planning control.

Subject to Executive Committee and Secretary of State's approval, officials will present the revised/new clauses to the Committee for consideration as soon, as is practicable.

DERMOT NESBITT MLA
Minister of the Environment

Statutory Instrument 1991 No. 1220 (N.I. 11)
The Planning (Northern Ireland) Order 1991 - continued
- - continued

Special procedure for major planning applications

31.-

(2) For the purpose of considering representations made in respect of an application to which this Article applies, the Department may cause a public local inquiry to be held by the planning appeals commission.

(3) Where a public local inquiry is not held under paragraph (2), the Department shall, before determining the application, serve a notice on the applicant certain persons as specified in subsection (3)a indicating the decision which it proposes to make on the application; and if within such period as may be specified in that behalf in the notice (not being less than 28 days from the date of service thereof) the applicant any such person so requests in writing, the Department shall afford to him an opportunity of appearing before and being heard by the planning appeals commission.

(a) Persons referred to in paragraph (1) above are -

1. the applicant;
2. any persons who have lodged a formal objection to the planning application in writing to the planning authority for the area in which the land to which the application relates is situated; or
3. other persons at the discretion of the Department.