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COMMITTEE FOR THE ENVIRONMENT Interim Report on the MINUTES OF PROCEEDINGS, MINUTES OF EVIDENCE, WRITTEN EVIDENCE Ordered by The
Committee for the Environment to be printed 10 October 2002 COMMITTEE FOR THE ENVIRONMENT: Powers The Committee for the Environment is a Statutory Departmental Committee established in accordance with paragraphs 8 and 9 of the Belfast Agreement, Section 29 of the NI Act 1998 and under Assembly Standing Order 46. The Committee has a scrutiny, policy development and consultation role with respect to the Minister of the Environment and has a role in the initiation of legislation. The Committee has power to:
Membership The Committee has 11 members including a Chairperson and Deputy Chairperson with a quorum of five. The membership of the Committee is as follows: Dr William McCrea (Chairperson)
1 Ms Patricia Lewsley
replaced Ms Carmel Hanna as Deputy Chairperson on 21 January 2002. TABLE OF CONTENTS Appendix 1- Minutes of Proceedings relating to the Report Appendix 2- Minutes of Evidence Appendix 3- Written evidence and other correspondence considered by the Committee LOCAL AIR QUALITY MANAGEMENT BILL - INTERIM REPORT 1. The Local Air Quality Management Bill was referred to the Committee for consideration in accordance with Assembly Standing Order 31 (1) on completion of the Second Stage on 17 June 2002. 2. The Minister of the Environment (the Minister) made the following statement under Section 9 of the Northern Ireland Act 1998: "In my view the Local Air Quality Management Bill would be within the legislative competence of the Northern Ireland Assembly." 3. The Local Air Quality Management Bill will make provision for implementing Council Directive 96/62 EC on Ambient Air Quality Assessment and Management. 4. The Bill will satisfy the Programme for Government (PfG) commitment to have in place, by May 2003, a policy and legislative framework to deliver Northern Ireland's contribution to the targets in the UK Air Quality Strategy for England, Scotland, Wales and Northern Ireland. 5. Effective transposition of the Directive and implementation of the PfG commitment, requires the establishment of a statutory scheme affecting the relevant parties. The Bill, therefore, places a range of statutory requirements on relevant authorities (to be prescribed by Regulations). These statutory requirements are dictated by the responsibilities within the various agencies' control and what is required to satisfy the Directive. 6. The stated purpose of the Bill is as follows:- (i) Implementing in Northern Ireland the requirements of the EC Directive (96/62/EC) on ambient air quality assessment and management. This will contribute to our achievement of the targets in the Air Quality Strategy for England, Scotland, Wales and Northern Ireland. (ii) Placing a statutory requirement on the Department to draw up an Air Quality Strategy for Northern Ireland (this may be a joint strategy with other Administrations). (iii) Placing a duty on District Councils to conduct reviews and assessments of local air quality. (iv) Providing powers for the declaration by District Councils of air quality management areas and the establishment of action plans, indicating the measures to be taken where there is a risk of the limit values and/or alert thresholds being exceeded. 7. Subsequent Regulations, made under the authority of the proposed Bill, will place in statute the objectives and targets contained in the Air Quality Strategy, which will reflect established EC limit values (objectives) and targets. 8. The proposals in the Bill are mainly based on those contained in Part I of the Environment Act 1995 which covers England, Scotland and Wales. In addition the Bill provides the Department with the power to fund air quality work and to recoup the cost of carrying out any air quality function on behalf of a District Council. It also ensures the public is kept informed of air quality issues such as the designation of air quality management areas. 9. The Committee Stage scrutiny of the Local Air Quality Management Bill began on 19 June 2002. In the light of the complex and technical nature of this Bill and the need for close scrutiny, together with the desire to consult widely and fully, the Committee agreed that the Committee Stage should be extended to 29 November 2002. The Committee agreed the following Motion seeking an extension to the Committee Stage of the Bill. "That , in accordance with Standing Order 31(5), the period referred to in Standing Order 31(3) be extended to 29 November 2002 in relation to the Committee Stage of the Local Air Quality Bill". The Assembly agreed this Motion on 8 June 2002. 10. The Committee had before it the Local Air Quality Management Bill (NIA 13/01) and the Explanatory and Financial Memorandum that accompanied the Bill. 11. In October 2001 the Department carried out a public consultation on the proposal to provide legislation for the management of air quality in Northern Ireland. The Department wrote to the Committee on 2 October 2001, forwarding the Consultation Paper and inviting the Committee's comments (Appendix 3 - Annex 1). The Consultation Paper can be viewed on the Department of the Environment's website: www.doeni.gov.uk. 12. On 10 January 2002 Department Officials attended the Committee's meeting and gave a presentation on the principal provisions of the proposed Bill. 13. On 18 January 2002 the Committee submitted its response to the Consultation Paper (Appendix 3 - Annex 2). The Committee generally welcomed the proposed legislation being of the opinion that the proposed legislation is long overdue and must be progressed with all speed - "for too long, Northern Ireland has had to endure episodic air quality of the lowest standards and our cities have too often held the dubious title of 'dirtiest' in the UK". The Committee commented as follows: (a) "That consideration of the Paper highlights the inequality of fuel choice/poverty throughout Northern Ireland with only a part of the population having the option of Natural Gas. The Committee recommended that this should be addressed with sensitivity in any legislation. (b) The Committee expressed disappointment that the Department was of the view that there was nothing to be learnt from the implementation of the Great Britain legislation that would give Northern Ireland a strengthened strategy. The Committee voiced concern that the objective may be to have legislation in place to avoid potential infraction proceedings rather than the most comprehensive legislation possible to address issues in Northern Ireland. (c) During the course of their presentation, Departmental Officials referred to the proposed statutory requirements on both District Councils and Public Bodies, including relevant Government Departments. For some time, the Committee has been critical of the lack of real action against those polluters within the remit of Government Departments, for example, continued pollution of our waterways from sewage discharges. The Committee waits with interest to see how the proposed legislation will address such issues in relation to air quality. (d) It is widely accepted that a primary cause of air pollution arises from airborne particulates whether locally from coal, solid smokeless fuels or vehicle emissions or frequently from long range transported pollutants from throughout Great Britain and Europe. Unfortunately, it may be the case that no matter what is done within Northern Ireland it will be of little consequence if the United Kingdom Government fails to act decisively and rather than setting interim targets, it should act positively to achieve accepted standards." 14. The Department wrote to the Committee on 30 January 2002 addressing the concerns and points raised in the Committee's response to the Consultation Paper (Appendix 3 - Annex 3). 15. On 3 April 2002 the Minister wrote to the Committee to inform Members of the outcome of the consultation exercise. A Table setting out a synopsis of the issues raised by consultees and the Department's response was attached (Appendix 3 - Annex 4). A total of 36 responses were received, all of which welcomed the proposals. The majority of the responses have been met by clarification of the proposals without the need for any change to the proposals. Of the remaining 5 issues raised, 4 were rejected on the basis that the suggestions were separate policy issues and not a matter for the legislation, and one was accepted. 16. On 8 May 2002 the Department wrote to the Committee informing them that infraction proceedings had begun for late transposition of this Directive and advising that it is imperative that the Bill reaches Second Stage before the Summer Recess and completes its passage before dissolution of the Assembly next Spring. The Department also forwarded a copy of the Policy Memorandum on the proposed Bill (Appendix 3 - Annex 5). 17. On 16 May 2002 Department Officials attended the Committee's meeting and gave a short presentation on the Policy Memorandum before answering questions from the Members. On the same date the Committee wrote to the Department with a number of outstanding questions/concerns from the meeting of 16 May 2002 (Appendix 3 - Annex 6). 18. On 22 May 2002 the Department wrote informing the Committee that the Minister had written to the Executive on 17 May seeking agreement to proceed with the introduction of the Local Air Quality Management Bill and that, subject to the Executive's agreement, the Bill was scheduled for introduction on 10 June with the Second Reading on 18 June. The Department also forwarded a copy of the draft Bill together with the Explanatory and Financial Memorandum for the information of the Committee (Appendix 3 - Annex 7). 19. At its meeting on 13 June 2002 the Committee agreed to write to a number of key interested parties about the Bill. On the same date the Committee wrote to the identified consultees inviting comments/concerns on the specific terms of the Bill (Appendix 3 - Annex 8). 20. On 13 June 2002 the Department wrote in response to the Committee's letter dated 16 May 2002 seeking clarification on a number of points (Appendix 3 - Annex 9). 21. On 18 June 2002 the Assembly agreed the Second Stage of the Bill. The Hansard record is at (Appendix 3 - Annex 10). 22. On 20 June 2002 Department Officials attended the Committee's meeting and gave a structured clause-by-clause presentation on the Bill before answering questions from the Members (Appendix 3 - Annex 11). The Committee agreed to forward to the Department all responses received from consultees from its letter of 13 June 2002. Responses from the following were copied to the Department:
23. On 1 October 2002 the Department wrote to the Committee forwarding a copy of the allocations to District Councils under the Local Air Quality Grant Scheme for 2002/03. (Appendix 3 - Annex 20). 24. On 3 October 2002 Department Officials attended the Committee's meeting and gave a structured clause-by-clause presentation on issues raised from recent consultation exercises on the proposals in the Bill. (Appendix 3 - Annex 21). Please note: the Minutes of Evidence in respect of the meeting on 3 October 2002 have not been examined by Members and Witnesses. (Appendix 2). 25. At the meeting of the Committee on 10 October 2002 it was agreed to order to print an Interim Report containing the factual evidence received to date. MINUTES OF PROCEEDINGS THURSDAY, 10 JANUARY 2002 Present: Rev Dr Wm. McCrea (Chairperson) Apologies: Ms C Hanna In Attendance: Mr J Simmons (Committee Clerk) The meeting commenced at 10.34 a.m. 5. Consultation Document on Proposals for a Local Air Quality Assessment and Management Bill in Northern Ireland Ms Helen Anderson, Ms Anne Hall, and Mr Nigel McMahon, Officials from the Department, joined the meeting at 11.42 a.m. After giving a presentation to the Committee on the above consultation paper; they answered questions from the Members. Mr McClarty rejoined the meeting at 11.48 a.m. The Chairperson thanked the Officials for their attendance and they left the meeting at 12.16 p.m. Agreed: That the Secretariat would prepare a draft response for consideration at next week's meeting. REV DR WILLIAM McCREA [Extract] THURSDAY, 16 MAY 2002 Present: Dr Wm. McCrea (Chairperson) Apologies: Mrs J Carson In Attendance: Mr J Simmons (Committee Clerk) The meeting commenced at 10.40 a.m. 5. Local Air Quality Management Bill Ms Helen Anderson and Ms Ann Hall, Departmental Officials, joined the meeting at 11.52am. They gave a presentation and answered Members' questions on the proposed Local Air Quality Management Bill. Key issues discussed included funding allocated to District Councils, Departmental action on consultation responses and limit values/standards. The Chair thanked the Officials and they left the meeting at 12.25pm. Agreed: The Committee to write to the Department on some outstanding questions and concerns with the proposed Bill. REV DR WILLIAM McCREA [Extract] THURSDAY, 13 JUNE 2002 Present: Dr Wm. McCrea (Chairperson) Apologies: Mr B Armstrong In Attendance: Mr J Simmons (Committee Clerk) The meeting commenced at 10.30 a.m. 5. Local Air Quality Management Bill The Committee considered the way forward on the Bill, which was introduced to the Assembly on 10 May 2002. Agreed: The Committee agreed to write to a number of key interested parties about the Bill. Members also agreed to consider appointing a Specialist Advisor to assist the Committee with the technical aspects/implications of the Bill. REV DR WILLIAM McCREA [Extract] THURSDAY, 20 JUNE 2002 Present: Dr Wm. McCrea (Chairperson) In Attendance: Mr J Simmons (Committee Clerk) The meeting commenced at 10.39 a.m. 3. Local Air Quality Management Bill Ms Helen Anderson and Ms Ann Hall, Departmental Officials joined the meeting at 10.40am. They gave a structured clause-by-clause presentation on the Bill and answered Members' questions. Mr Armstrong joined the meeting at 10.48am. Mr Poots left the meeting at 11.21am. Mr Poots rejoined the meeting at 11.24am. Key issues discussed included Air Quality Strategy, District Council reviews, designation of Air Quality Management Areas and the Regulations which will flow from the Bill. The Chair thanked the Officials for a very helpful presentation and they left the meeting at 11.25am. Agreed: The Committee to consider the Bill further at a future meeting. REV DR WILLIAM McCREA [Extract] THURSDAY, 3 OCTOBER 2002 Present: Dr Wm. McCrea (Chairperson) In Attendance: Mr J Simmons (Committee Clerk) The meeting commenced at 10.30am. 5. Local Air Quality Management Bill Ms Helen Anderson, Mrs Ann Hall and Mr Dan Kennedy, Departmental Officials joined the meeting at 12.05pm. They gave a structured Clause-by-Clause presentation on issues raised from recent consultation exercises on the proposals in the Bill. Mr Armstrong rejoined the meeting at 12.22pm. Mr McClarty left the meeting at 12.30pm. Mrs Carson left the meeting at 12.35pm. Key issues discussed included Designation of an Air Quality Management Zone, Action Plans, funding and powers of Authorised Officers to enter residential premises. Mr Molloy left the meeting at 12.40pm and rejoined the meeting at 12.44pm. The Deputy Chair thanked the Officials and they left the meeting at 12.42pm. Agreed: To invite Officials to the Committee meeting of 17th October 2002 to address concerns of Members. REV DR WILLIAM McCREA [Extract] THURSDAY, 10 OCTOBER 2002 Present: Dr Wm. McCrea (Chairperson) Apologies: Mr F Molloy In Attendance: Mr J Simmons (Committee Clerk) The meeting commenced at 10.30am. Local Air Quality Management Bill Members considered a draft Interim Report on the Bill containing an account of the factual evidence received to date by the Committee. Agreed: That the Interim Report on the Bill is ordered to be printed. REV DR WILLIAM McCREA [Extract] MINUTES OF EVIDENCE MINUTES OF EVIDENCE Thursday 20 June 2002 Members present: Witnesses: 1. The Chairperson: You are very welcome, Ms Anderson and Ms Hall, to the Environment Committee. 2. Ms Anderson: I apologise for the background notes being late, but as we work through them some of the detail will be ironed out. 3. The Committee is familiar with the background to the proposed Local Air Quality Management Bill. By way of recap, the Bill is required to enable implementation of an EC Directive on ambient air quality assessment and management. It will also satisfy the Programme for Government and the Investing for Health commitment to have in place, by May 2003, a policy on legislative framework to deliver Northern Ireland's contribution to the targets in the UK air quality strategy. 4. I will work through the Bill clause by clause and stop if members have any comments or questions. 5. Clause 1 states that the Bill contains provisions for implementation of the EC Directive. 6. Clause 2 requires the Department to prepare and publish a statement or strategy document setting out the air quality strategy for Northern Ireland. The strategy should contain policies for the assessment and management of air quality, which have been formulated to prevent or mitigate the effects of pollution. The strategy should also set out the European framework within which it must work and include standards and objectives for specific pollutants and a timetable for the achievement of those. It should also set out the steps and measures that Government are proposing to take. The strategy may be a joint one with other administrations or a Northern Ireland regional one. 7. In response to the consultation document, the Royal Town Planning Institute suggested that there should be joint responsibility between Departments to draw up an air quality strategy. However, responsibility has been placed on the Department of the Environment as the one best placed with regard to technical and policy expertise. It will involve other relevant Departments in the preparation of an air quality strategy. Subsection (7) requires the Department to consult relevant authorities when preparing or modifying the strategy, to include Government Departments. 8. The Chairperson: You say that the Department of the Environment should be the relevant Department, and the Royal Town Planning Institute suggested that a composite number of Departments should draw up the strategy. As the lead Department, will you take on board what the other Departments say and reflect that in the strategy? It is to be hoped that the Department of the Environment will not go off on its own and say "We hear you, but we are the final arbitrator". 9. Ms Anderson: That will not be the case, because the strategy must identify measures that Government will take. Those measures would be taken by Northern Ireland Departments as a corporate body, as opposed to just the Department of the Environment. There would be no question of the Department of the Environment overriding other Departments in that respect. 10. The Chairperson: If members want to ask a question, please do. In your summary you did not touch on the point in clause 2(1): "The Department shall as soon as possible prepare". How long is a piece of string? 11. Ms Anderson: A strategy is already in place. Northern Ireland is currently signed up to the air quality strategy for England, Scotland, Wales and Northern Ireland. 12. The Chairperson: So, how long is "as soon as possible"? 13. Ms Anderson: A decision will be made as to whether those words should be deleted from the Bill because the Department is already involved in a strategy; it is not futuristic. We signed up to a strategy in 1997 and it is reviewed continuously, so those words are somewhat misleading. 14. The Chairperson: Are you already in consultation with the other Departments? Do they know that this strategy has already been drawn up, and have they been given a copy? 15. Ms Anderson: Other Departments have been involved in the discussions on the strategy. Departments have been involved in discussions on introducing the Bill and putting the requirement for this strategy in statute. An agreement has been signed up to, but it does not have a statutory remit in Northern Ireland. 16. Mr A Doherty: The Bill has considerable implications for local authorities, and puts a certain responsibility on local authorities. Will the consultation include local authorities from the beginning? 17. Ms Anderson: The Department will engage in discussions with district councils over the summer. The Department will invite them to workshop sessions to explain the importance of the Bill and to take on board their views. There is also subordinate legislation and a set of Regulations that prescribe who the relevant authorities are. Other Departments and public bodies that we would view as stakeholders in the Bill are likely to be involved in the discussions. 18. The Chairperson: Will the Committee receive copies of any comments that district councils make? 19. Ms Anderson: When we take on board the comments from those various stakeholders, we intend to share a synopsis of the outcomes with you. 20. Clause 3 places a responsibility on a district council to carry out a review of the air quality, and the likely future air quality, within its area. Where a review has been carried out, an assessment should be made of whether the air quality standards and objectives are being achieved within a specified period. A district council will then be required to identify particular parts within its area where the standards are not likely to be achieved. 21. Mr Poots: How does that differ from the current situation in district councils? 22. Ms Anderson: District councils are engaged in a voluntary system; they conduct reviews and assessments, but there is no legal obligation on them. Clause 3 places a legal obligation on them to do what they are currently doing voluntarily. The last sentence indicates that the district council will then be required to identify particular parts, within its area, where the standards are not likely to be achieved. District councils are engaged in that part of the process, but have not yet reached the standard. 23. The Chairperson: Does each district council have the staff expertise to fulfil this Regulation? 24. Ms Anderson: As the Committee is already aware, all district councils are voluntarily engaged in undertaking these duties. In doing that, the staff have improved their skills. They have the baseline knowledge through their environmental health departments, which gives them the general expertise. That expertise has been built on, with the Department of the Environment funding training sessions and providing a freephone helpline number so that information is available to them. In addition, environmental health departments are in a grouping system, and the group officers have identified specialist pollution officers who have been assisting them. There is a good support mechanism, and to date district councils appear to be coping well. 25. The Chairperson: In clause 3, what does "shall from time to time cause a review" mean? 26. Ms Anderson: The intention is that subordinate legislation would prescribe what that relevant time would be. It could either be contained in guidance material, which would not have a statutory remit but which would simply make a recommendation about how frequently this would be, or it would be placed in the Regulations, which would specify a time period. 27. The Chairperson: We will review your answers to see if any other problems or questions need to be posed. 28. Ms Anderson: I appreciate that. It is useful for both of us to have this general overview. 29. The Chairperson: Twenty-four councils have taken up funding. Do the councils that have not taken up funding have the expertise? 30. Ms Anderson: The funding has been used mainly for capital works such as purchasing equipment. It has also been used to undertake specific studies such as fuel-use surveys. The technical know-how tends to reside with district councils, and the Department is supporting that through freephone information and in-house training. 31. The Chairperson: There must be a reason why councils have not taken up what could be regarded as important funding. If money is being used to buy equipment, surely councils would want to have it. Will you let the Committee know why two councils are not taking up the funding? 32. Ms Anderson: Yes. 33. Clause 4 refers to the designation of air quality management areas. It provides that where a district council carries out a review of air quality and finds that in a certain part of its area, air quality standards and objectives are not being met, or are unlikely to be met within the time period, it must make an Order designating that part of its area as an air quality management area. The district council is required to publish the Order. An Order may also be varied or revoked by a subsequent Order. 34. The Human Rights Commission, in reply to the consultation document, suggested that there should be more emphasis on informing the public and making information more easily available. Subsection (3) of the clause addresses the issue by requiring a district council to publish a notice of an Order and advise the public where a copy may be inspected free of charge. 35. The Chairperson: We have received a copy of the letter from the Northern Ireland Human Rights Commission. Members may wish to refer to it when considering the issue. 36. Ms Anderson: Several clauses, which we will come to as we work our way through the Bill, respond to the same concern. 37. Mr Poots: What will happen in an area that is designated? 38. Ms Anderson: Subsequent clauses indicate that the council and the relevant authorities have to develop an action plan that will detail actions that each body proposes to take to reduce pollution in that area to the acceptable standard. 39. Mr Poots: Will the relevant authorities include the Department of the Environment? 40. Ms Anderson: The relevant authorities will be specified by the Regulations, which will be subject to consultation. However, we propose that it would include bodies such as the Department of the Environment, the Department for Regional Development, in relation to Roads Service, and the Northern Ireland Housing Executive. The Regulations will be subject to consultation over the summer. 41. Mr M Murphy: Did the Human Rights Commission raise any queries about that? 42. Ms Anderson: The Human Rights Commission made the general point that it would like the Bill to include provision to increase public awareness to ensure that people are aware of the air quality in their area and what actions are being taken. We have included in the Bill, under various clauses and schedules, additional provisions that respond to that concern. 43. Mr Lewsley: Dunmurry had the highest level of pollution of any village in Northern Ireland, and Lisburn Borough Council put air quality controls in place. The problem is partly due to the fact that some of the area is not a smokeless zone. When you spoke about relevant bodies and action plans, what timescales are involved? Technically, the smokeless zone issue would be the responsibility of the Housing Executive. 44. Ms Anderson: You are referring to pollution being generated by domestic fires, some of which are in privately owned houses and others are in Housing Executive homes. There will be a set of Regulations made under the Bill that will identify various pollutants by name and will give a time frame within which the levels of pollution must be reduced. The statutory time frame will come from those Regulations. 45. The second part of your question relates to the Housing Executive, which has its own timetable for the fuel-switching process. The Bill works on the basis that it encourages the formation and continued operation of a partnership approach. In those circumstances, the district council would conduct its review and assessment and identify that home fire pollutants need to be reduced. The Housing Executive will then consider, with the district council, the level of reduction required and the time frame required for compliance under the Regulations, and the Housing Executive's proposals for that period. 46. That partnership approach between the Housing Executive and the district council will mean that a satisfactory resolution can be reached. Where that is not possible, the matter would be referred to the Department of the Environment for arbitration. These other Regulations are not in place yet, but a hypothetical situation might arise where the Housing Executive proposes that implementation will take longer than the district council deems acceptable. The Department of the Environment will take on board the views of the Department for Social Development, as that Department funds the Housing Executive. The two relevant Ministers will consider that matter. If resolution were not achieved between the Ministers, the matter would be passed up to the Executive for determination. The ruling line of the Executive over the debate between Ministers is not contained in the legislation per se, but that is the framework in which this would operate. 47. The Department of the Environment's intention is to draw up a draft protocol over the summer for Departments and the Executive, which would outline that arrangement and pass it round them for consideration. 48. Ms Lewsley: If the Regulation is not implemented in the required timescale, who enforces it? Is there a penalty and to whom does that penalty refer? 49. Ms Anderson: The legislation does not impose a penalty, but seeks to put the mechanism in place. The means of ensuring that actions are taken is by direction and the legislation has retained a power of direction on the part of the Department of the Environment. The Department can only direct district councils, as it would not be in a position to direct other Departments. That would have to be resolved as a simple Government matter. 50. Mr A Doherty: Is there either a maximum or, more importantly, a minimum size for a designated area? I am thinking specifically of areas in a town or where there is serious traffic congestion. I can envisage a great increase in demand for ring roads and bypasses. 51. Ms Anderson: There is no minimum size as such, but the district council and the relevant authorities would have to be confident that any area to be designated is large enough to ensure that remedial measures will reduce pollution significantly. A designed area can be just a couple of streets, it does not need to be half a district council area. 52. The Chairperson: We will carry on with the next clause. 53. Ms Anderson: Clause 5 sets out the steps the district council must take after it has made a designation Order. We have discussed some of this already. Within a 12-month period, as specified in the Regulations, a district council must supplement the information it has on the designated area by carrying out an assessment. The councils are currently doing that voluntarily. 54. The assessment of air quality should cover the present and the likely future air quality standards or objectives and whether they are being or are not likely to be achieved. The district council will then be required to prepare a report of the findings of the assessment. 55. Several respondents raised issues in relation to clause 5, such as the road transportation unit of the Department for Regional Development, which raised concerns that it would receive early warning of the need for an action plan. Clause 5, subsections (2) and (3), require district councils to send papers to relevant authorities. That will be subject to Regulation, but it is likely that that will include the Department for Regional Development. 56. Copies of specific papers, such as Orders declaring a designated area, assessment results and reports, together with paragraph 2 of schedule 1, which provides for the exchange of information between district councils and relevant authorities, would be expected to highlight early warnings of possible action required by each party. 57. Another respondent, the Northern Ireland Local Government Association, stated that it would be essential for public bodies to be required to fulfil their responsibilities for improving air quality. Subsection (4) requires relevant authorities, which may include Departments but will be determined by Regulation, to submit proposals for the action plan to district councils. 58. Subsection (8) provides the Department with the role of arbitrator, should there be a dispute between district councils and Departments as to the content of an action plan. District councils suggested the policing role in response to the consultation document. In its letter of 16 May, the Committee for the Environment referred to disagreements between district councils and Government Departments. That aspect is covered in the Department of the Environment's reply of 13 June, a copy of which is in members' information folders. Clause 5(8) specifically refers to that issue, providing that the Department of the Environment will arbitrate. However, where the arbitration involves two or more Departments, Ministers will be involved in discussions, as will, ultimately, the Executive. 59. The Chairperson: After arbitration, the Committee considered what action would be taken against a council that failed to act or a Department that failed to carry out its departmental duty. The Committee responded to that in a letter. The Department of the Environment replied that "the Department directed district councils to discharge their duty and that councils are statutorily required to comply with any direction. The Department may take the appropriate action and recoup the reasonable costs of doing so. The statute places mandatory duties on relevant authorities, which may include Northern Ireland Departments, and will be prescribed by Regulations. Where a Northern Ireland Department fails to discharge its duty, the High Court may, on the application of the relevant authority, declare unlawful the act or the omission." 60. When a Department's act or omission has been declared unlawful, is the Department required under statute to comply with the direction? The statute is definite that councils have a statutory duty to comply, but is not definite about Northern Ireland Departments. The statute states that relevant authorities "may include Northern Ireland Departments". Therefore, the Department of the Environment may take another Department to the High Court. There is an open door for Departments, but a closed door for councils. 61. Ms Anderson: You are quite right. There is a distinction in the level of compliance with the duty that is placed on various parties. Councils have a statutory duty to undertake whatever is required of them, including undertaking a duty under the Bill. Departments are Crown bodies, and the provision in the Bill is the standard clause used in legislation referring to Departments. It is assumed that Departments will realise the onus that is on them and comply with the direction, but there is no statutory requirement on them to do so. 62. The Chairperson: With the greatest respect, you have to say that smilingly. When would one have the confidence to say that a Department "will" and that a council "shall" comply? Quite often, Departments are the offending bodies, yet there is nothing definite in the legislation to do anything about that. 63. Ms Anderson: In addition to the Bill, the Air Quality Limit Value Regulations (Northern Ireland) 2002, which came before the Committee several months ago and are now law, place a statutory duty on Northern Ireland Departments to achieve the European air quality limit values for a range of pollutants. 64. The Chairperson: To reinforce what is supposed to be included in the other Bill, would it not be beneficial to apply the statutory duty in this Bill to Departments? 65. Ms Anderson: This Bill places a statutory duty on district councils to undertake their duties, be they a review, an assessment or the declaration of an area. Councils will also be required to produce actions for inclusion in the action plan in pursuit of - not in compliance with - achievement of the air quality standards. 66. There is no provision in the Bill to take action against a district council that fails to achieve the air quality standards or objectives set down in statute. There is no provision on any party - central or local government - in relation to that. However, there is an onus on the relevant authorities to undertake the duties as laid down in statute. Subsequent Regulations will specify who those bodies are but it is likely, subject to consultation, that they will include the Department of the Environment, the Department for Regional Development, the Department for Social Development and the Northern Ireland Housing Executive. It is intended that those bodies will be required by statute to do certain tasks. If they fail to fulfil their obligations, the Bill does not go so far as to declare them guilty of an offence. They will be deemed to have committed an unlawful act or omitted to do an action which they ought to have done. There will be an obligation, but not a statutory obligation, on them. 67. However, those authorities will get caught under the limit value Regulations. The Northern Ireland Departments are responsible for delivery of the European Commission limit value Regulations for pollutants. If Northern Ireland fails to achieve the European standards, the Commission will take action against the Executive in the form of fines and penalties. Therefore the Bill does not contain a statutory provision, but there is an onus on the Department to comply because another set of Regulations places the duty firmly at its feet. 68. Mr A Doherty: I made this point to the Minister in the Chamber this week when the Second Stage of the Bill was presented. A council may carry out all that is required of it in clauses 3, 4 and 5 - designate areas, prepare and put in its final action plan - but if the Department is not satisfied, it may turn the entire thing on its head. There is no provision for a council to have the right to argue its case or a right to appeal the Department's decision. If the Department is not satisfied with what the council has done, it can make a determination with which the council must comply. The Minister did not come back to me on that point, but I hope that there will be some answer to it. 69. Ms Anderson: The Department will respond to you in writing. The statute is framed as it is because of the onus that is placed on Departments under the limit value Regulations and by the European Commission. It is the responsibility of the Northern Ireland Departments, particularly the Department of the Environment, to ensure delivery of air quality improvements. Therefore the Department of the Environment and the other Departments will be held responsible by the European Commission, but the Department of the Environment is the final arbitrator. The Committee appears to be concerned about the lack of appeal and statutory duty on Departments, but the Department of the Environment will consider that. 70. Mr A Doherty: Arbitration implies give and take, but there does not seem to be any give and take in this instance. 71. Mr Armstrong: Is the Department held responsible if any one person does not comply with the Regulations? Is it correct that the onus does not fall below the top rung of the ladder? 72. Ms Anderson: With regard to the European Commission actions, yes. 73. Mr Armstrong: Therefore any financial penalty is imposed on the top rung of the ladder. 74. Ms Anderson: The only offence decided by the Bill is when an individual or body fails to allow access to premises or information. Powers of entry offences are created there. It is not an offence to fail to achieve the air quality standards. 75. Mr Armstrong: So the standards are for advice purposes? 76. Ms Anderson: The responsibility on district councils is in the operation of the mechanism - doing the reviews and assessments, declaring the area, and putting together the action plan in conjunction with other parties. The Department would have to specifically direct a district council to put in place a smoke control area. The measures that might tumble out of the Bill could be traffic reduction, which will ultimately fall to Roads Service in the Department for Regional Development, smoke control provisions, which would fall to the Housing Executive and to district councils, because district councils operate smoke control areas, the provision of grants, and so on. Really, the only measure likely to fall within the district council's gift is smoke control, and they are grant-aided by the Department of the Environment for that. 77. I appreciate that there is much to get through. We will probably be back with the Committee on several occasions. I appreciate you trying to stay with us on it. 78. The Chairperson: I would like you to keep going through this overview document. If you could continue to give us the overview, then we can ask specific questions. 79. Ms Anderson: Clause 6 refers to reserve powers that the Department has retained. This clause confers on the Department the power to exercise any of the air quality functions that should be undertaken by a district council. It also gives the power to the Department to recoup the costs of any exercise undertaken on a district council's behalf. The Department also has the power to give direction to a district council, requiring it to carry out a specific action in relation to air quality. This clause also provides the power to the Department to give direction to a district council in order to implement aspects of European Union Treaties or any international agreement relating to the quality of air. A requirement is placed on the Department to publish any directions given, and to make copies available to the public. A district council must comply with any such direction given to it. 80. The Environment Committee enquired about the role of the Department in implementing this legislation, and we have responded to you at length on that. In particular, clause 6 (1) enables the Department to recoup reasonable costs for review and assessment work carried out on behalf of a district council. Clause 6(3) allows the Department to issue directions to district councils and clause 6(6) requires the Department to publish a notice of the direction. 81. This clause also covers the query from the Committee as to what action could be taken against a district council that fails to carry out its statutory duty. In addition, the Human Rights Commission, in its reply, suggested that there should be more emphasise on informing the public and making information more readily available. Clause 6(6) requires the Department to publish any direction it has given to the district council, therefore assisting in that respect. 82. Clause 7 lists, at great length, the Regulations that the Department would be able to make under this Bill. It provides the Department with the power to make Regulations to implement the air quality strategy, and to implement UK obligations under the European Union Treaties or other international obligations, or to make more detailed provision for the assessment or management of air quality. The Committee asked what levels of fines were proposed under the Bill, and we covered this at length in our response. I would direct you to that for information. 83. Generally, the only Regulations that the Department is proposing to make under the Bill at this time are Regulations that will specify who the relevant authorities are, and Regulations that set down the limit values for the range of pollutants. These are required to make the Bill work. We have no intention to issue any other Regulations at this time. You will also see in the list that it allows us the power to make Regulations in relation to a whole host of things. 84. The Bill puts in place a framework that will require the identification of our pollution problems; for example, which pollutants are concerned and where they occur geographically. The Department will then work with various stakeholders to consider what Regulations are required to remedy these problems. Regulations will be brought forward on a need basis, and will be subject to consultation. 85. Clause 8 provides the power to a relevant authority to make recommendations to a district council in respect of any of its air quality functions. A power is also given to the Department to issue guidance to a district council or a relevant authority concerning a district council's or a relevant authority's functions under the Act. 86. The Committee raised related issues in recent correspondence and asked for a copy of the guidance. We have given you the website address for the current guidance, and we will share with you the revised guidance when it becomes available. You also sought clarification of the meaning of councils being required to "have regard to recommendations made by the Department". 87. This means that district councils will be required to take into account such recommendations, but they will not be legally obliged to adhere to them. It is standard legislative phraseology, and its interpretation does not appear to have caused significant problems. You might want to consider that response, and whether you wish to pursue that any further. 88. Clause 9 basically applies the provisions of schedule 1. We will deal with schedule 1 later, so there is nothing to look at in the clause itself. 89. We have already discussed this at some length. Clause 10 provides powers to the Department to make grants or loans - currently we are making grants - to any body or person carrying out work in relation to reviews, assessment, the drawing up of action plans, and the management of air quality. The Department will determine the amounts paid, and the terms and conditions for any payments or repayments. 90. A number of district councils, and also the Northern Ireland Local Government Association (NILGA) and the Chief Environmental Health Officers Group, are listed as having raised the issue of funding and the request for funding. We have given you a lengthy response to this, which basically says that moneys will be provided subject to budget outcomes. I anticipate that you will want to discuss this. 91. The Chairperson: The answer is certainly not a detailed one, and there are a lot of holes in it. We will certainly want to come back to this because it certainly does not satisfy anybody. 92. Ms Anderson: Clause 11 provides that an authorised person may exercise certain powers, which are specifically outlined in the legislation. In its reply to the consultation document the Human Rights Commission expressed an interest, and we have copied these to the Human Rights Commission. We are waiting for a response from them. 93. Basically, the powers of entry contained in this legislation are identical to those in a host of similar legislative instruments. If we need to, we can debate that. 94. Clause 12 deals with offences by a person who obstructs an authorised officer in the exercise of his duties. It also states that it is an offence for a person, without reasonable excuse, to fail to comply with any requirement imposed under clause 11. Clause 11 is about powers of entry and permission to take samples, and so on. The current maximum fine is £5,000, which is standard level 5 on the current standard scale. 95. Clause 13 sets out the arrangements for disclosing information obtained under the provisions of this Act. Again, they are very similar to those in other legislation. 96. Clause 14 provides for Regulations to be made to modify provisions of this Act to enable the UK to give effect to Community obligations or international agreements. 97. The Chairperson: I would not want to stop you in your flight. 98. Ms Anderson: I appreciate the time constraint we are under, and that you have other Bills. 99. Clause 15 applies, with the omission of certain words, the provisions of sections of the Interpretation Act (Northern Ireland) 1954 relating to offences by a body corporate. 100. Clause 16 provides that where an offence is due to the fault of another, that other person can be held liable. 101. We have touched on clause 17 before, and you have voiced concerns in relation to the application of the Crown. This is the standard provision in relation to that, but we note your concerns. 102. Clause 18 specifies those Regulations made under this Act which are subject to affirmative resolution, and those which are subject to negative resolution. The affirmative ones are those which put fines in place; they would be presented to a session of the Assembly. The content is in the Bill itself. It also outlines the requirements of a direction given by the Department in relation to community obligations. There are specifics in relation to that. 103. Clause 19 defines various words used in the Act. The definition of "air" came up in the Assembly at Second Reading. In case any of you are wondering, I did not dream that up. The given definition of "air" might not be the definition that the man on the street would use, but it is the definition used in the Directive. To ensure effective and clear transposition of the Directive, we are legally advised to use their definition. 104. Clause 20 gives the short title, although it is not very short. 105. Schedule 1 sets out the detailed procedural instructions relating to consultation requirements - who has to be consulted, how it must be done, the exchange of information, the joint exercise of district council functions, public access to information, and fixed penalty notices. The Committee for Nature Conservation referred to the need to ensure that there was an exchange of information between district councils and the Department. The schedule contains a paragraph relating to that exchange of information - it provides between whom that exchange must be conducted, and what it must entail. 106. In the consultation, the Transport Division of Department for Regional Development also referred to the possible need for new traffic Regulations, and that is covered. There is an amendment to their Road Traffic Regulation Order, which gives them the power to produce subordinate legislation that could limit, either in total or in part, the vehicles that could gain access to an area. That would be a potential measure where traffic was a problem. 107. The Environment Committee also referred to the need for an exchange of information, and we have provided you with a detailed response. The reply from the Human Rights' Commission suggested that there should be more information on informing the public. The part of the schedule that deals with that has been sent back to them, and we are awaiting comments from them. 108. The purpose of schedule 2 is to set out detailed procedural instructions for the use of warrants;, the obtaining of information that may be admissible in evidence; the securing of premises if you had to gain entry without the consent of the owner; and compensation - all of which relate to powers of entry. These are standard across other pieces of legislation, and we will debate those with you at greater length at some other time. 109. The last page of my summary highlights several other pertinent issues which did not really fit in under a particular clause. You will see how the queries raised by the respondents have been dealt with in the copies of our replies to them. I would also point out that I just have noticed that this is not actually the final draft. There are some other comments, and I will provide the amended version to the Committee Clerk. There is not much additional material in it, but it might just give you more clarity. There is nothing in it that would alter anything that we have discussed today. Thank you for staying with us on that gallop through the Bill. 110. The Chairperson: That was a sterling performance, so thank you very much indeed. It has been helpful, and it has been good for us to get that overview. Members and our officials can now take the Bill and go through it with more care using these notes. We will certainly want to revisit its financial aspects. I must declare an interest in that, because it deals with district councils. We will read this carefully and come back shortly. You may discuss with our officials when that might be. There is a lot here for thought and earnest consideration. Your presentation has certainly been helpful, and we deeply appreciate that. 111. That is as far as we will go today. It is more important that Members carefully read this document with the Bill. We will come back at the next session and go into more depth with any questions or queries we might have. You will also have the proper draft then. Thank you very much indeed. 112. Ms Anderson: Thank you. This has been helpful to us as well as you, undoubtedly. MINUTES OF EVIDENCE Thursday 3 October 2002 Members present: Witnesses: 113. The Deputy Chairperson: I welcome Ms Helen Anderson, Ms Ann Hall and Mr Dan Kennedy from the Department of the Environment. Members should declare any interests with regard to local government. Various members declared an interest. 114. Ms Anderson: We have already provided some notes that summarise the Bill's content and bring members up to date with what has happened over the summer. I will go over that. A table has been circulated this morning, which takes the information that was in the previous appendices 1 and 2 and sets it out in a slightly different format for easier consideration. 115. The Bill seeks to implement EC Directive 96/62 on Ambient Air Quality Assessment and Management and to satisfy the Programme for Government and 'Investing for Health' commitments that the Executive have signed up to. The content of the Bill is summarised on the handout provided; the salient points that will be discussed later are highlighted. 116. The Bill requires district councils to carry out reviews and assessments of air quality within their areas and, if air quality standards and objectives are not likely to be achieved, to designate that part of the council area as an air quality management area. 117. The Bill requires each district council to prepare a report of the findings of the air quality assessment and prepare an action plan in relation to any powers exercisable by the district council and to send that to other relevant authorities. Relevant authorities are then required to submit proposals, in relation to any powers exercised by them, for inclusion in a composite action plan. The Bill is about linking district councils with Government Departments and other relevant public bodies to sort out what activities are needed for improving air quality and to put those into an action plan. 118. The Bill also allows the Department of the Environment to act and recoup costs where a district council fails to fulfil its requirements under the Bill. It allows the Department to direct a district council to take any specific action on air quality matters, and it provides the Department with the power to issue guidance to district councils and other relevant authorities concerning their respective functions under the Bill. 119. The Bill provides the Department with the power to make grants or loans to any body or person in relation to air quality review, assessment and management. That was a discretionary power previously; it was not mandatory. The Bill details the powers of authorised persons. Other important points are listed, but they will not be important in today's discussion. I am conscious that best use should be made of the time, but I am happy to go over those points again if Committee members so wish. 120. The paperwork also contains an itinerary of the interplay between the Department and the Committee thus far. Again, I can go through that in more detail if it would be helpful. The main issues highlighted in meetings with the Committee have been concerns in relation to the continued funding for district councils to undertake their activities under the Bill, the lack of an appeal mechanism for district councils in the Bill as currently drafted, and the Crown immunity issue. The Bill, as it stands, puts in place the standard Crown immunity provision, which sets out that the Crown will not be held criminally liable but can be taken to the High Court and deemed to have acted unlawfully. A declaration can be made against the Crown. 121. We thank the Committee for forwarding copies of the comments that it received over the summer. We have taken those on board and, as we indicated we would, we have held several meetings about the Bill with the various stakeholder groups over the summer. Those have been very fruitful. Among the groups that we met were the Planning Service of the Department of the Environment, the Regional Planning and Transportation Division and the Roads Service of the Department for Regional Development, and the Housing Division of the Department for Social Development. We have also met the Northern Ireland Housing Executive and representatives from the district councils. 122. All parties received various papers, and copies of the Bill and the proposed Regulations. We then held lengthy discussions with all the stakeholders. We have offered them the opportunity to come back to us, either orally or in writing, to take up any outstanding issues. There is a table in the paperwork that details those issues, which originated from both the written and oral aspects of that exercise. 123. At the meetings, we explained to the stakeholders the contents of the Bill and the associated proposed requirements of the Relevant Authority Regulations. The Bill sets out a range of duties on district councils and relevant authorities. That is meaningless unless it is known who the relevant authorities will be. We undertook to draft Regulations on that and circulate them for discussion and comment during the summer. That was part of the stakeholder meetings. The various parties have seen those and have had an opportunity to comment. 124. The Department found that the meetings were well received and that there was general consensus in favour of the Bill proceeding. 125. The Deputy Chairperson: Could the Committee have a copy of the proposed Regulations? 126. Ms Anderson: Yes. I have an early draft, and there is also a draft consultation paper to accompany the Regulations. 127. Discussion centred on clause 4, which deals with the designation of air quality management areas; clause 5, which deals with the action planning phase; clause 10, which relates to funding; and clause 11, which relates to the powers of authorised officers. I will go through each of those in turn. 128. On clause 4, the Planning Service and Regional Planning and Transportation Division queried how we would determine what size of an area would be declared as an air quality management area. We told them that air quality management areas will vary in size depending on need. In some instances in GB, air quality management areas can be as large as a borough council area, or they can be a very small portion of road or a roundabout. It relates to the exposure of individuals to levels of pollutant that are above health-based standards. There is no set size for them, and they will be determined by the circumstances. The Planning Service and Regional Planning and Transportation Division were content with that clarification. 129. Clause 5 is the action-planning phase. Various Departments, including the Department for Regional Development, the Department of the Environment and the Department for Social Development, may have activities to perform in relation to bringing forward action plans that would identify the actions that they propose to take, and the timescales in which they propose to take them, to bring about reductions in air pollution in those air quality management areas. 130. District councils expressed concern about the possible lack of commitment from Departments and other bodies - mostly the Northern Ireland Housing Executive - and that was where the Relevant Authority Regulations came into their own. We sent those Regulations to the district councils before the meetings, and we were able to talk our way through them. The Regulations prescribe for the various Departments and the Housing Executive which clauses of the Bill they will be responsible for actioning. The Relevant Authority Regulations go through the Bill clause by clause, indicating the Departments involved. They also state whether the district councils or the Northern Ireland Housing Executive have a role to play in respect of that clause or that subsection or paragraph within that clause. All of the stakeholders were happy with that, as it clarified who was expected to do what. 131. There are a few programmes and strategy documents on the transport and planning side that already contain significant air quality commitments. In addition, all of the stakeholders at the meeting were happy to give a verbal commitment to the air quality dimension, and they saw how it sat alongside their priorities and issues. Everybody was content that the Regulations locked people in, and that the commitment would, therefore, be assured. 132. District councils had concerns about the Planning Service taking air quality into account whenever it was producing area plans and policy documents. The Planning Service emphasised that it was keen to embrace that partnership approach. It pointed out that the Relevant Authority Regulations spell out the Planning Service's role and the actions that it would have to come forward with, and that its strategy documents identify air quality as an issue that it would take on board in developing any plans. The Planning Service emphasised that air quality could be a material consideration for planning matters. When that was explained to the district councils, they were happy that through that - and particularly through the Relevant Authority Regulations - the Planning Service would be locked in. If planning issues were required, the Planning Service would have to come forward with proposals for inclusion in the action plans under the Bill, and those would also find their way into the relevant planning plans. 133. We also talked about policy guidance on the planning side, and the Planning Service agreed to make an input to the air quality technical guidance that we are formulating at the moment. The Planning Service mentioned its planning policy statement 1 (PPS1). The hope is that between the technical guidance, which the Department is working on with the Planning Service at the moment, and PPS1, there will be adequate coverage on the planning policy side with regard to air quality. That technical guidance will go out for consultation this winter. Therefore, if councils feel that enough has not been done with regard to air quality policy, they will have an opportunity to voice their concerns. 134. Councils expressed concern about leverage over bodies such as housing associations and private rented sector tenants. This concern arises from the pollution problems caused by domestic coal fires. The Housing Executive will be named as a relevant authority and, therefore, will have to act as appropriate. However, housing associations will not be named in the Relevant Authority Regulations because, legally, it would not be appropriate to do so. 135. Housing associations and private rented sector tenants are already subject to the existing smoke control and clean air legislation, so councils already have a power to enforce the controls. The Department for Social Development assured us that it has leverage over housing associations, and that, if need be, it can use that to ensure compliance. Should commitment be lacking, the Department can take action. The Department of the Environment discussed the matter fully with the councils. They were wholly content with that position and could see how the system would work in practice. 136. The Committee received a copy of a letter that the Housing Executive sent to us. The Housing Executive discussed the matter with us fully at the stakeholder meetings. It is fair to say that the Housing Executive is not reluctant to play its role with regard to the Bill. It understands the purpose of the Bill, and that it embraces the health and air quality dimensions of the executive's policy documents. Those helped to bring about the fuel switching policy that the Housing Executive operates with regard to oil and gas. From that point of view, it is wholly on board. 137. However, the Housing Executive has concerns about timetabling. Its programme for switching to the cleaner fuels will not reach completion until about 2009-10. The target date for some of the air quality requirements with regard to the two pollutants that are relevant to the Housing Executive is 2005. The Department explained to the Housing Executive that actions will be required only where there are problems. Action will not be necessary across the whole of Northern Ireland. Where there are air quality problems that are going to cause difficulties, air quality management areas will be declared. The Department is not in a position to say how many of those there will be in Northern Ireland, but it is unlikely that large parts of Northern Ireland will be declared as air quality management areas. 138. In a sense, the Housing Executive, as with all the partners, will be asked to focus its attention in the air quality management areas that are declared. Some of those may be areas where the Housing Executive has already introduced its fuel switching policy. We have been very up front with the Housing Executive. The action planning process under the Bill will cause it to examine the timetables that it has set for itself. However, the Department and the councils will discuss the matter with the Housing Executive to see whether we can accommodate the air quality management area plan needs within the executive's timetables. It may be that the Housing Executive will have to skew some of its timetables to accommodate the air quality pressures, but that will become apparent when we are further down the line. 139. The Department has been very open with the Housing Executive, and discussions are ongoing. The executive is content with the Bill. I stress - and it has been stressed to the Housing Executive - that the Bill itself does not contain the timetable in respect of air quality. It puts in place a mechanism for delivery; it identifies the players and states that action plans will be required. We will produce separate Regulations which will name the pollutants and identify the separate timeframes. Those Regulations are scheduled for winter of this year, and any concerns about them will be discussed. 140. Some of the target values for those pollutants are EC requirements, over which we have no discretion. Others are national health limits, and there may be some discretion about when they could be achieved. That is for another day; however, it may be helpful to know that some of those are EU-driven. 141. The Deputy Chairperson: It is October. Does "winter of this year" mean that the consultation will be in November or December? 142. Ms Anderson: All being well, it should be late November/early December. Supporting Regulations must be in place to allow people to understand and comment meaningfully on the Bill, and we worked on those during the summer. The Relevant Authority Regulations have been brought forward, and we aim to issue those next month. The other Regulations are not yet ironed out, but we hope that they will be ready for consultation in late November/early December. 143. Staying with clause 5, the district councils, the Roads Service, the Planning Service and Regional Planning and Transportation Division queried the timetabling for activities under the Bill. The EU-driven Air Quality Limit Value Regulations, and the Air Quality Regulations, which will set out the national requirements for the health-based pollutant levels, will define the timeframes for work to be carried out. In addition, all the internal governmental stakeholders are assisting us in drawing up a suite of technical guidance to assist all of the stakeholders with the activities required under the Bill. That is well under way and should be sent out for consultation in November/December. 144. All of that will assist in identifying and setting out the timetable, which is not covered in the Bill. The players are content to clear the Bill and will examine and comment on the timetabling separately. 145. The Roads Service expressed concern that it had not received early feedback from district councils on potential problems. The Committee may recall that almost a year ago district councils began a voluntary review and assessment process. It is still at an early stage, and there is not much to share with other stakeholders. Government stakeholders are concerned that information should be shared with them as early as possible. The district councils have assured us that as soon as there is anything to share it will be shared. 146. In addition, the relevant councils have set up a Greater Belfast Air Quality Partnership. The Roads Service and the Department of the Environment have been invited to attend as observers. When the partnership has relevant information to share with others, such as the Planning Service, the Department for Social Development or the Housing Executive, those bodies will be invited on as observers. Again, the players are content with that. 147. The Committee had raised the issue of the lack of appeal mechanisms. District councils asked us to clarify their right to appeal under the Bill, in the context of possible disagreement between themselves and a Government Department in which the Department of the Environment was left as the arbitrator. It was spelt out to councils that although the Department of the Environment would be the arbitrator in such circumstances, the matter would not be dealt with by us as individuals; it would instead be contracted to an independent consultant, skilled in that type of work, and the consultant would advise us. That is appropriate, because it boils down to action plans and technical reports. The problem pollutants will be set out, together with their levels, their likely levels in the target years, and the proportion of reduction required. 148. The sources of the pollutants would be considered, and, through that, the type of reactions required from the various stakeholders will be determined. It is appropriate that an external consultant, skilled in this type of work, should carry that out. He would simply report back to the Department of the Environment. We would then engage with the stakeholders and help them to take on board his views and concerns. When we talked through that, the councils were wholly content with that approach. They could see the rationale for having adopted that approach in the Bill. It made sense in the context in which we were operating. 149. The district councils had no concerns about the Department of the Environment having a power of direction over them. The Environment Committee raised that issue previously. I raised that with the district councils as an Environment Committee concern, but they indicated that they were content with it. We would only use that in the most extreme circumstances, and the district councils were content with that position. That is the summation of clause 5. Would anyone like to ask any questions before I move on to the funding? 150. The Deputy Chairperson: No. We can move on. 151. Ms Anderson: Clause 10 is the funding clause. Again, the Environment Committee had expressed concerns about this clause. District councils raised three particular concerns, one of which related to the grants or loans. The Bill allows for grants or loans. We currently grant money to district councils. They raised a request that that be made available to the councils at all times. The Bill provides a power for the Department of the Environment to fund work on air quality. That is a mandatory power, but it is not an obligatory power in that the Department does not have to fund. The Bill states that the Department "may" fund. 152. The Department indicated that it currently views the voluntary air quality management process as a key element in improving air quality in the short to medium term and that there is programmed funding of that until 2003-04. After that, future funding requirements will be considered by the Department. Those considerations will take into account the types and levels of funds made available to local authorities in GB, and the district council need for funding. My colleague, Dan Kennedy, could go into more detail, but most of the funding up to now has been for equipment or for particular activities. Much of that is one-off funding. 153. Once we get further down the action planning process, many of the activities required are going to relate to the creation of smoke control areas and perhaps to traffic measures. The traffic measure costs will be lifted by the Department for Regional Development's Roads Service. If district councils decide to put in place smoke control areas, a separate funding line has already been provided by the Department under the clean-air legislation for that. Therefore, the funding for that would not fall under the Bill. 154. We would be looking to fund additional areas, which would have to be based on need. District councils were content with that approach and can see that any funding will have to be on a needs basis. We do not know what those needs will be. Therefore, we will address them when we do. The review and assessment process being carried out by district councils will inform that, but not enough information is coming from that to currently allow us to identify what those needs will be. 155. The Deputy Chairperson: When will criteria be available for the councils to see if they will qualify for any available grant? 156. Ms Anderson: They are currently being grant-aided under the review and assessment process. That will continue until 2004. There is an open door on smoke control areas. The district councils can apply to the Department for funding under smoke control. There are set criteria for the available funding under that. My Colleague, Dan Kennedy, is perhaps best placed to speak about funding beyond 2004. However, it can be encapsulated by saying that when the review and assessment processes identify the sources of the pollution, and the degree of reduction required from each of the sources, we will be better informed to know what type of funding schemes might be necessary. The lack of information to enable us to identify additional funding schemes is holding us back; it is not because of any reticence on the Department's part. Dan Kennedy might want to comment at this stage. 157. Mr Kennedy: No, I think that you have covered most of the issues. 158. Mrs Nelis: Will there be established criteria for additional funding in respect of those areas with the highest rate of smoke and sulphur dioxide? I note that Strabane District Council submitted a response to the consultation which states that it had the highest levels - 32 micrograms per cubic metre - and Derry had the next highest. The Housing Executive has already stated that it is not in a position to address the changeover in the solid fuel heating system, and that means that those sulphur dioxide levels in Strabane and Derry are likely to remain. How do you think that district councils should address this issue, and what criteria will you be using for additional funding? 159. Ms Anderson: The response from Strabane District Council contained allegations about its position vis-à-vis its pollution status in the UK. The Department has already responded to the council on that allegation. We are not disputing that it would have pollution problems, but the monitoring equipment from which the figures were derived had not been in position for a sufficient period to provide a true reflection of the council's position in the pollution league. Mr Kennedy could clarify that. 160. Mr Kennedy: The monitoring site had only been operational for less than a year. When the review and assessment process is complete, it will help to give a better picture of the extent of the pollution, especially in the Strabane area, and it will also project forward to the target dates and allow a reasonable assessment. If levels were significant following that review, I would anticipate that smoke control would be a factor. The Department of the Environment already has a funding line for providing moneys for smoke control. 161. Ms Anderson: The only action that district councils will be able to take under the Bill relates to the imposition of smoke control areas. The clean-air legislation currently allows councils to declare those smoke control areas, and the Department has substantial amounts of money available to provide funding to them. The Housing Executive will have to put forward its case for funding. We have told it that if there were air quality pressures, we would be prepared to support it on the internal papers that would work their way through the Department for Social Development. However, it would not be a case of the Department of the Environment funding the Housing Executive: that would be a massive policy departure. However, funding lines already exist for district councils. Where air quality management areas are declared, action plans will identify the actions to be taken by the various parties, and the availability of funds to undertake those actions will be crucial. 162. Mrs Nelis: Is air quality control a cross-cutting issue? 163. Ms Anderson: It certainly is a cross-cutting issue. 164. Mrs Nelis: That should impact on the funding arrangements. 165. Ms Anderson: It ought to, but you will appreciate that it is not really for me to comment on another Department's funding arrangements. 166. The Deputy Chairperson: Dunmurry, in my constituency, was rated two years ago as being the village with the highest pollution, and the council had to take action. The area contained an estate that was not a smokeless zone, and the council is working with the Housing Executive to try to eradicate that in the next few years. It cannot be done all at once. The Housing Executive will fund the change from coal to other fuels. 167. Ms Anderson: District councils and the Housing Executive already work in partnership in relation to smoke control areas. Where air quality monitoring areas are declared, those councils that have not turned their attention to smoke control in the past might have to. Some councils, such as Belfast, have adopted it in full, and other councils have not, but it may be appropriate for them to do. The Bill is going to focus their attention on that. 168. Clause 11 relates to the powers of authorised officers to enter residential premises, and a couple of issues were raised about that. The Northern Ireland Human Rights Commission has told the Environment Committee that it would like to see provision in the Bill, or at least an indication of the Department's intention, to establish a code of practice for the exercise of this power. The Bill allows authorised officers to enter residential premises, having given seven days' notice with the resident's consent, or having given seven days' notice with a warrant from a Justice of the Peace. 169. That is similar to the provisions in other legislation. We discussed that with district councils at the stakeholder meetings because any additional code of practice would impact on them. They said that they already deal with a wide range of legislation. The Police and Criminal Evidence (Northern Ireland) Order 1989, the codes of practice under it and the Cabinet Office's enforcement concordat provide them with guidelines in and around this area. They felt that that might be enough to satisfy the Human Rights Commission. We have considered the Police and Criminal Evidence (Northern Ireland) Order 1989, the codes of practice under it and the enforcement concordat, and we have extracted what appeared to be the relevant material from those. We intend to liaise directly with the Human Rights Commission and see if that would be sufficient to satisfy it. If the Committee is content, we will adopt that direct approach, and we will report back to you. 170. The Deputy Chairperson: Yes. We are content. 171. Ms Anderson: We hope to make contact with the Human Rights Commission next week with a view to exchanging papers and arranging an early meeting to try to resolve its concerns. We have liaised with it previously on the Bill. It did not raise the issue at that time, otherwise we would perhaps have been further on, but we hope to resolve the issue soon. 172. One of the district councils stated that the seven days' prior notice of entry to residential premises seemed excessive. However, that is the provision in the equivalent GB legislation, and it is equivalent to provision in other pieces of Northern Ireland environmental legislation. On that basis, we would be content to stand with it. The Environment Committee did not raise the issue previously. We explained that at the stakeholder meetings, and the district councils indicated contentment with that on that basis. 173. The last issue, which is the extension of the gas distribution system throughout Northern Ireland, has also been raised by the Environment Committee. It does not really fit in under any of the clauses in the Bill. 174. The Department appreciates fully that the availability of natural gas in Northern Ireland has an impact on air quality. Having said that, fuel distribution is a separate policy issue to that under the Bill. The Bill just seeks to put in place a mechanism to require air quality in Northern Ireland to be looked at and actioned where it is bad. When the air pollution problems that are identified under the Bill cannot be reduced adequately using available measures, which will include fuel types, the matter will be for collective consideration by our Department and other Departments or agencies. 175. We have explained that to the Environment Committee previously. We went into that in some detail at the various stakeholder meetings. The district councils and others indicated that they were content with that; they appreciated that it was not an issue for the Bill. It is perhaps a general issue of concern, but it is not an issue for the Bill. We are content to leave it on that basis. 176. I have gone quickly through that because I wanted to give you a flavour of what has been involved and the issues that we have been able to satisfy the various stakeholders on. That may leave you in a better position to identify what you wish to take forward with us. 177. Mr Armstrong: Is there anything in the Bill relating to industrial pollution or waste pollution? 178. Ms Anderson: Those sorts of pollution will be dealt with under the pollution prevention and control regime. Generally, pollution from industry affects the air quality in the immediate surrounding area. However, industrial pollution will be dealt with under the appropriate legislation, and neither the Bill nor the mechanisms under it will be used to effect improvements in sectors where more appropriate legislation already exists. 179. The Deputy Chairperson: If the Committee is content, I would like to thank Ms Anderson and her team for all the work that they did during the summer. We appreciate the very concise document given to the Committee this morning. 180. Mrs Nelis: Will there be any right to compensation for those who have been affected by air pollution? 181. Ms Anderson: No. 182. Mrs Nelis: Will that be dealt with in separate legislation? 183. Ms Anderson: The Department has no intention of developing legislation to deal with cases where the health of individuals has been affected. I will seek legal advice on that matter before reporting back to the Committee, if members are content. 184. The Deputy Chairperson: OK. Thank you. WRITTEN EVIDENCE AND CORRESPONDENCE Annex 1 Letter dated 2 October 2002 from the Department of the Environment Annex 2 Letter dated 18 January 2002 from the Committee for the Environment Annex 3 Letter dated 30 January 2002 from the Department of the Environment Annex 4 Letter dated 3 April 2002 from the Minister of the Environment including Synopsis of issues raised during consultation process Annex 5 Letter dated 8 May 2002 from the Department of the Environment including Policy Memorandum Annex 6 Letter dated 16 May 2002 from the Committee for the Environment Annex 7 Letter dated 22 May 2002 from the Department of the Environment including Draft Bill Annex 8 Letter dated 13 June 2002 from the Committee for the Environment Annex 9 Letter dated 13 June 2002 from the Department of the Environment Annex 10 Draft Bill Second Stage Reading dated 18 June 2002 Annex 11 Presentation dated 20 June 2002 by the Department of the Environment Annex 12 Letter dated 17 June 2002 from Northern Ireland Human Rights Commission Annex 13 Letter dated 26 June 2002 from Newry and Mourne District Council Annex 14 Letter dated 1 July 2002 from Strabane District Council Annex 15 Letter dated 2 July 2002 from Council for nature Conservation and the Countryside Annex 16 Letter dated 3 July 2002 from Lisburn Borough Council Annex 17 Letter dated 2 August 2002 from Ballymena Borough Council Annex 18 Letter dated 5 August 2002 from Ards Borough Council Annex 19 Letter dated 12 September 2002 from the Housing Executive Annex 20 Letter dated 1 October 2002 from the Department of the Environment Annex 21 Presentation dated 3 October 2002 by the Department of the Environment ANNEX 1 LETTER FROM: 2 October 2001 A CONSULTATION DOCUMENT ON A PROPOSED LOCAL AIR QUALITY MANAGEMENT BILL I enclose 17 copies of a Consultation Paper which sets out the Department's proposals for a Bill aimed at providing the legal framework, policies and mechanisms for the assessment and management of ambient air quality in Northern Ireland. The proposed Bill is entitled the Local Air Quality Management Bill. A copy of the press release, which will accompany the publication of the Consultation Paper, is also enclosed. The consultation document seeks views on a proposed Bill, which is intended to provide a mechanism enabling air quality to be managed in Northern Ireland. The proposed Bill also seeks to satisfy the Programme for Government (PfG) commitment to have in place by May 2003, a policy and legislative framework to deliver Northern Ireland's contribution to the targets I the Air Quality Strategy for England, Scotland, Wales and Northern Ireland. The introduction of the proposed Bill will also transpose Article 3 of the EC Directive on Ambient Air Quality Assessment and Management (EC96/62), which was to have been transposed by May 1998. In view of this Northern Ireland is placed in a potential infraction situation and there is therefore an urgency in transposing this legislation. In addition, there are a number of other pressures for this legislation to be brought forward as soon as possible. These include the PfG commitment which sets a very stringent timeframe within which the legal mechanism should be in place in Northern Ireland; District Councils have emphasised the need for the legislation and have already voluntarily engaged in the process required by the proposed legislation. The Department has already established a scheme to provide funding to District Councils to assist with the implementation of the proposed legislation. There is also the important issue, to be taken into account, that public health may currently be adversely affected in those pollution hotspots which the legislation is designed to tackle. In view of these pressures, the Executive Committee has agreed that this Consultation Paper should issue for an 8-week consultation period. Accordingly, the Consultation Document is being published now with Friday, 30 November 2001, closing date for comments. I would welcome the Committee's comments on the proposals and would be happy to arrange a presentation by officials if the Committee would find it helpful. LESLEY ROONEY ANNEX 2 LETTER FROM: 18 January 2002 Following the presentation from Officials of the Department at this week's meeting, the Committee has considered its response to the above Consultation Document. The Committee believes that the proposed legislation is long overdue and must be progressed with all speed. For too long, Northern Ireland has had to endure episodic air quality of the lowest standards and our cities have too often held the dubious title of "dirtiest" in the UK. Anything that brings about improvements must be welcomed. While the Committee welcomes the fact that so many of the District Councils have been willing to take this forward, the issue of financing the legal requirements is a matter for concern. It is appreciated that a grant scheme is being funded with over £3m over 3 years but the Committee would not support an increase in local rates to pay for the Councils to carry out an imposed statutory responsibility. As you know, an overriding principle throughout all recent anti-pollution legislation is that of "the polluter pays" and perhaps more needs to made of this. While the Department has stated that no equality issues are presented by the proposed legislation, the Committee would contend that consideration of the Document highlights the inequality of fuel choice/poverty throughout Northern Ireland with only a part of the population having the option of Natural Gas. This needs to be addressed with sensitivity in any legislation. While the Committee would welcome any legislation that is at least as effective as the earlier GB legislation, it is disappointing that the Department feels at this stage that there is nothing to be learnt from the implementation of the GB legislation that would give Northern Ireland a strengthened strategy. In this context, it appears that the objective may be to have legislation in place to avoid potential infraction proceedings rather than the most comprehensive legislation possible to address issues in Northern Ireland. During the presentation, the Officials referred to the proposed statutory requirements on both District Councils and Public Bodies - including relevant Government Departments. For some time, the Committee has been critical of the lack of real action against those polluters within the remit of Government Departments, for example, continued pollution of our waterways from sewage discharges, The Committee looks forward as to how the proposed legislation will address such issues in relation to air quality. Finally, it is widely accepted that a primary cause of air pollution arises from airborne particulates whether locally from coal, solid smokeless fuels or vehicle emissions or frequently from long range transported pollutants from throughout GB and Europe. Unfortunately, it may be the case that no matter what is done within Northern Ireland will be of little consequence if the UK Government fails to act decisively and rather than setting interim targets, it should act positively to achieve accepted standards. I hope you find this helpful. The Committee would like to be informed of the outcome of the consultation exercise and how the Department intends to proceed. JIM BEATTY ANNEX 3 LETTER FROM: 30 January 2002 I would like to thank the Committee for it's prompt response following the official presentation in relation to the above-mentioned Consultation Document. The Department notes that the Committee accepts the proposed legislation is long overdue and must be progressed with all speed. As indicated by officials during the presentation, NI currently faces potential infraction proceedings regarding non-transposition of the EC Directive relating to Air Quality Assessment and Management. The PfG also commits the Executive to making this legislation by May 2003. In order to meet the May 2003 deadline it is imperative that a Bill is introduced in the Assembly in early June. The Department will be doing everything it can to meet that target. With respect to Consultation Document and presentation, the specific concerns and points raised by the Committee are addressed below. 1. The Committee has stated that it could not support an increase in local rates to pay for the Councils to carry out an imposed statutory responsibility. The Committee has acknowledged the current Local Air Quality Management Scheme of grant-aid to District Councils, which operates on an extra-statutory basis. It is proposed that the Bill will contain a power enabling the Department to fund work in relation to air quality assessment and management which will plan future payments on a statutory basis. The Department notes the Committee's concerns and will be bidding in future Budget rounds for funding for District Councils in relation to local air quality activities. The outcome of these bids will be a matter for decision by the Executive Committee, subject to approval of the Budget by the Assembly. 2. The next point raised concerned inequality of fuel choice with only part of the population having the option of Natural Gas. Whilst Natural Gas is /will be available only in certain parts of Northern Ireland, other fuel types are widely available such as, LPG, oil, and smokeless solid fuel. In the event that the Air Quality management process identifies areas in which air pollution cannot be adequately reduced using available measures (including fuel types), the matter will be for collective consideration by the Department and other relevant Departments and agencies. 3. The Committee expressed the view that there would seem to be more emphasis on avoiding infraction proceedings rather than producing more comprehensive legislation which would address issues in Northern Ireland. The Committee can be assured that the proposed legislation is intended to include and improve on the GB legislation by incorporating a number of stronger powers, such as placing a statutory requirement on both District Councils and Public Bodies (which will include relevant Government Departments) to ensure necessary air quality improvements in Northern Ireland are achieved. During evidence, officials indicated that the proposed legislation will allow for NI either to continue to participate in a UK Air Quality Strategy or to produce a tailored NI Strategy. The appropriateness, and content, of any NI Strategy will be informed by the air quality review and assessment process under the proposed legislation. 4. The Committee also expressed concerns in relation to the lack of real action against those polluters within the remit of Government Departments. Cross-departmental commitment to secure the necessary improvements in air quality for both environmental and health reasons already exists. This is evident in the number of central government key strategies which have acknowledged the importance of the air quality dimension. In addition to this, the proposed legislation places a statutory duty on Government Departments to comply with the Air Quality EC Directive in relation to activities within their control. At a practical level, should any Department fail to fulfil its statutory duty in relation to measures within their control, the matter would fall to be resolved bilaterally between Ministers, or through the Executive Committee. 5. The final point raised by the Committee referred to airborne pollution and long range pollutants from throughout GB and Europe. The consultation paper on proposed new Air Quality Strategy objectives, published in September 2001, proposed to strengthen the objectives for particles by supplementing the present objectives with new objectives. The present objectives of a 24-hour mean of 50 µg/m3 (micrograms per cubic metre) not to be exceeded more than 35 times per year and an annual mean of 40µg/m3, both to be achieved by the end of 2004, are based on the limit values in the first EC Air Quality Daughter Directive. The proposed new objectives of a 24-hour mean of 50µg/m3 not to be exceeded more than 7 times per year and an annual mean of 20µg/m3, both to be achieved by the end of 2010, take account of emission reductions that will be delivered across Europe through the National Emission Ceilings Directive and the existence of the indicative EU Stage 2 limit values for particles contained in the first EC Air Quality Daughter Directive. It is now thought that emissions in mainland Europe may contribute up to about 15% of total annual average PM10 concentrations in the UK. Whilst in years when easterly winds are more frequent, emissions from mainland Europe can account for a much higher proportion, particularly in south and east England, Northern Ireland's geographical location relative to mainland Europe, means that significantly fewer episodes arise from the long range transport of particles. The framework for Local Air Quality Management as proposed in the LAQM consultation paper, will allow district councils to consider the policy measures which will provide the most cost effective means of reducing particle concentrations, in particular at local hot spots. 6. In conclusion, the Department notes that the Committee would like to be informed of the outcome of the consultation exercise and how the Department intends to proceed. EILEEN DOWD ANNEX 4 LETTER FROM: 3 April 2002 LOCAL AIR QUALITY ASSESSMENT AND MANAGEMENT IN NORTHERN IRELAND In its response to the Department in respect of the above-mentioned Consultation Document, the Committee indicated that it would like to be kept informed of the outcome of the consultation exercise and how the Department intends to proceed. The Department issued the consultation paper on 5 October 2001 setting out its proposals for legislation to transpose the requirements of Article 3 of the EC Ambient Air Quality Assessment and Management Directive (96/62/EC). The closing date for comments was 30 November. A total of 36 responses was received all of which welcomed the proposals. The Department has considered the responses and decided that, of the 34 issues raised:
The enclosed Table (Annex A) provides a synopsis of the issues raised and the Department's response. As already noted by the Committee, the proposed legislation is long overdue and must be progressed with all speed. As indicated by officials during the presentation on the proposed Bill, NI currently faces potential infraction proceedings regarding non-transposition of the EC Directive relating to Air Quality Assessment and Management. And, at a local level, the PfG commits the Executive to making this legislation by May 2003. In order to meet the May 2003 deadline it is imperative that a Bill is introduced in the Assembly as soon as possible. The Minister will therefore write forthwith to colleagues seeking approval to the Policy memorandum prior to submission to the Executive for formal approval to proceed with the Bill. In line with your request to be kept informed of how the Department intends to proceed, a copy of the Policy Memorandum will also be forwarded to the Committee for information at the same time as it goes to the Executive. EVELYN HOY ANNEX A COMMENTS ON LOCAL AIR QUALITY MANAGEMENT BILL
COMMENTS ON LOCAL AIR QUALITY MANAGEMENT BILL
COMMENTS ON LOCAL AIR QUALITY MANAGEMENT BILL
COMMENTS ON LOCAL AIR QUALITY MANAGEMENT BILL
COMMENTS ON LOCAL AIR QUALITY MANAGEMENT BILL
COMMENTS ON LOCAL AIR QUALITY MANAGEMENT BILL
COMMENTS ON LOCAL AIR QUALITY MANAGEMENT BILL
COMMENTS ON LOCAL AIR QUALITY MANAGEMENT BILL
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COMMENTS ON LOCAL AIR QUALITY MANAGEMENT BILL
ANNEX 5 LETTER FROM: 8 May 2002 The proposed Local Air Quality Management Bill ('the Bill') will transpose the requirements of Article 3 of the EC Ambient Air Quality Assessment and Management Directive (96/62/EC) and satisfy the PfG commitment to introduce a system for air quality management by May 2003 to enable delivery of the UK Air Quality Strategy objectives. As infraction proceedings have begun for late transposition of this Directive it is imperative that the Bill reaches second stage before the Summer recess and completes its passage before dissolution of the Assembly next Spring. The policy has been finalised, taking account of the consultation responses, and the Department is now ready to seek the Executive's approval to proceed with the Bill. In line with suggestions outlined in a letter to the Committee dated 20 March and as discussed during a presentation by officials on 21 March, a copy of the Policy Memorandum is being sent to the Committee at the same time as the Executive, for information. A copy of the Consultation responses and the Department's line was previously sent to the Committee on 3 April 2002. EILEEN DOWD LOCAL AIR QUALITY MANAGEMENT BILL POLICY MEMORANDUM INTRODUCTION 1. This Policy Memorandum outlines the background to the need for the Bill and the policy objectives that it aims to address. It discusses the consultative process undertaken, the cost implications of the Bill and its impact on equality of opportunity, human rights issues and targeting social need. It also addresses North/South relations and EU issues. BACKGROUND AND POLICY OBJECTIVES 2. The purpose of this Bill is to put in place a policy and legislative framework to deliver Northern Ireland's contribution to objectives and targets for improving air quality, contained in the Air Quality Strategy for England, Scotland, Wales and Northern Ireland (the Air Quality Strategy). One of the main objectives contained in the Northern Ireland Executive's Programme for Government is to work for a healthier people by focusing (in addition to other means) on ensuring that the environment supports healthy living for all people. One of the key mechanisms identified for achieving this objective is to put in place a policy and legislative framework to deliver Northern Ireland's obligations under the Air Quality Strategy. 3. The Bill will also satisfy the EC Ambient Air Quality Assessment and Management Directive (96/62/EC) (the Directive) which the Air Quality Strategy translates into a national strategy for the United Kingdom (UK). The requirements of the Directive were to have been transposed into legislation by May 1998. However, due to a lack of resources under Direct Rule, there has been a delay in enacting the transposing legislation in Northern Ireland. Resources have now been allocated and the Department is progressing the proposed Bill as quickly as possible. 4. As infraction proceedings have begun in relation to this legislation it is imperative that the Bill reaches second stage in the Assembly before the Summer recess. Subject to timing and approval by the Assembly, it is anticipated that the legislation will become fully operative by Summer 2003. 5. The Bill will place a range of statutory requirements on both District Councils and Public Bodies (which will include relevant Government Departments). These statutory requirements (summarised Appendix 1) are dictated by responsibilities within the various agencies' control and what is required to satisfy the Directive, as well as the obligations contained in the Air Quality Strategy. Acknowledgement of the air quality dimension within a number of the Executive's key strategies (for example, Developing a Regional Transport Strategy; Shaping our Future, the Regional Development Strategy for NI 2025; and the Investing for Health Strategy) illustrates that cross-departmental commitment exists to secure the necessary improvements in air quality for both environmental and health reasons (air pollution can exacerbate respiratory and heart conditions). 6. While there is a wide range of pollution sources in Northern Ireland, those mainly affected by the proposed legislation are likely to be domestic heating systems and road transport. District Councils have powers relating to the use of private domestic heating fuel and the regulation of small industrial processes. However, air quality issues resulting from public housing, transport, major industry or planning also touch on the responsibilities of the Department of Enterprise, Trade and Investment, the Department for Social Development, the Department for Regional Development, and the Department of the Environment. 7. The main elements of the proposed Bill will be to place a duty on District Councils to assess air quality within their area and, where pollutant levels exceed /or are likely to exceed the set standards, to declare Air Quality Management Areas. In such areas District Councils, in conjunction with relevant public bodies (including Departments) will be required to produce Action Plans detailing the actions, according to their respective remits, that each propose to take to reduce the pollution levels. In advance of the proposed Local Air Quality Management Bill, all 26 District Councils have voluntarily engaged in the air quality review and assessment activities that will be required by the proposed legislation, in order to make progress in delivering the obligations placed by the Directive and the Air Quality Strategy. KEY FEATURES 8 The proposed legislation seeks to establish an effective local air quality management system for Northern Ireland. This aim will be achieved by:
9. Subsequent Regulations, made under the authority of the proposed Bill, will place in statute the objectives and targets contained in the Air Quality Strategy, which will reflect established EC limit values (objectives) and targets. 10. The proposals in the Bill are mainly based on those contained in Part IV of the Environment Act 1995 (GB). An overview of the proposed provisions is set out in Appendix 1 this annex. CONSULTATION 11. The Department carried out a public consultation in late 2001 on these proposals. There was also full consultation with the Environment Committee. A total of 36 responses were received, all of which welcomed the proposals. The majority of the responses can be met by clarification of the proposals without the need for any change to the proposals. Of the remaining 5 issues raised, it is proposed that 4 will be rejected on the grounds that they are not a matter for the legislation and one will be accepted. FINANCIAL EFFECTS OF THE BILL 12. A number of financial implications could arise in relation to the implementation of the proposed policy - mainly in the areas of smoke control, transportation, and assistance to District Councils in connection with the review and assessment process. Costs cannot be quantified at this time, and are unlikely to be able to be estimated before completion of the review and assessment process being undertaken by the District Councils (scheduled for completion by December 2003). 13. A regulatory impact assessment is not required as the proposed legislation merely puts in place a mechanism for the delivery of air quality management, in itself it does not require specific actions on the part of industry. It is envisaged that under normal circumstances, current/ proposed industrial pollution legislation would adequately control industrial pollution. Any additional costs arising under proposed industrial pollution legislation will be addressed under the Regulatory Impact Assessment for that legislation. 14. With regard to District Councils, the Department (in advance of the proposed legislation) recently introduced a grants scheme to assist District Councils in reviewing and assessing local air quality to identify likely problem areas and necessary remedial measures. The package offers grants totalling approximately £1M a year for the next 3 years (subject to annual Budget outcomes) to support councils in this important work. As this is secured funding, the monies (including inflationary increases) will continue in future years. However, any additional funding required by the District Councils would have to fall on the district rate unless the Executive decided to offer additional support. 15. Regarding Departments or their Sponsored Bodies, the proposed policy could have some cost implications and this possibility has been drawn to the attention of the relevant Departments. Given the inescapable nature of the Directive's obligations it will be for each Department to find any costs, either from successful bids in the Budget rounds or from reprioritisation of expenditure plans. The DFP Minister has confirmed that he is content that the policy may proceed on this basis, and the relevant Departments, who were consulted, have acquiesced in this approach. REGULATORY IMPACT ASSESSMENT 16. The DETI Minister has confirmed exemption for a Regulatory Appraisal on the basis that the proposed legislation merely seeks to put in place a mechanism for delivery as opposed to specifying specific measures to be implemented. EFFECTS ON EQUAL OPPORTUNITIES 17. No evidence of adverse or differential impact in relation to any of the groups mentioned in section 75 of the Northern Ireland Act 1998 has been identified. HUMAN RIGHTS 18. The legislation will impact upon human rights in a number of ways i.e.: - (a) by providing to enforcing authorities powers for entry, inspection, taking of measurements and samples, and obtaining relevant information; (b) by requiring district councils and relevant public bodies to provide each other with certain information. 19. The Department has concluded, however, that the inclusion of such provisions does not infringe the Convention on Human Rights because the fundamental objective of the legislation is to protect the environment as a whole for the benefit of all the citizens of Northern Ireland. 20. The Department consulted the Commission for Human Rights who are content with the proposals. IMPACT ON TARGETING SOCIAL NEED (TSN) 21. Research undertaken on behalf of the Department has indicated that it is likely that policies to reduce air pollution concentrations in areas where they are highest could impact marginally more beneficially in the more deprived communities. Therefore, it is likely that the outcomes associated with the proposed legislation will result in a marginally positive TSN effect. EC IMPLICATIONS 22. This legislation will transpose Article 3 of the EC Air Quality Assessment and Management Directive (EC/96/62), which was to have been transposed by 21 May 1998. VOLUNTARY/COMMUNITY SECTOR IMPLICATIONS 23. The Bill is not considered to have any direct implications for the voluntary / community sector. Impact on Relations, Co-operation or Common Action on a North / South or East / West Basis 24. The EC Directive applies to all Member States. England, Scotland, Wales and the Republic of Ireland have all transposed the relevant articles of the Directive. 25. The Air Quality Strategy applies to England, Scotland, Wales and Northern Ireland. GB already has in force, equivalent legislation to that proposed for Northern Ireland. CREATION OF OFFENCES 26. The Bill will make provision for new offences, the creation of which is a reserved matter. The consent of the Secretary of State under section 10(3) (b) of the Northern Ireland Act 1998 will be required and initial contact has been made with NIO in this regard. APPENDIX 1 TO POLICY MEMORANDUM PROPOSED LOCAL AIR QUALITY MANAGEMENT BILL SUMMARY OF PROVISIONS Duties Placed Upon the Department of the Environment (the Department) The Bill will place a statutory requirement upon the Department to:
Duties Placed Upon District Councils
Provisions relating to the Role of District Councils.
Duties placed upon public bodies, including relevant Government Departments
and
General and Supplementary Provisions The Bill will also contain powers and provisions:
ANNEX 6 LETTER FROM: 16 May 2002 Helen Anderson and Ann Hall gave an informative presentation to Committee today on the proposals for the above Bill. At the end of their session, it was agreed that the Committee would write with a number of outstanding questions/ concerns. The questions are:- (a) In a comment on one of the responses to the Consultation Document, the Department has stated that 'Councils and Departments will be required to provide each other with information and to provide proposals in respect of each of their activities in pursuit of achieving air quality standards. District Councils will be required to have regard to recommendations made by Departments.' How will the exchange of information between Councils and Departments operate in practice and what if there is disagreement between a Council(s) and Department(s)? What exactly is meant by 'Councils will be required to have regard to recommendations made by the Departments'? What will be the role of the Department of the Environment in implementation of this legislation? (b) The proposed Bill will enable the making of regulations to impose fines on a person/organisation who contravenes or fails to comply with any prescribed provision of the Regulations. What levels of fines are proposed? What are the levels of fines in GB? What action can/will be taken against a Council or Department who fails to carry out their statutory duty? (c) The Policy Memorandum highlights some instances of possible impact on human rights, for example, by providing authorities with the power of entry to land to obtain relevant information. When this was questioned within the Consultation Exercise, the Department stated that it had to clarify the proposed powers of entry and seek the Commission for Human Rights' comments. Has clarification of these proposed rights been obtained and has the Commission been subsequently consulted? Did the Commission raise any queries? (d) Financial implications were discussed at some length, especially the ongoing funding for District Councils, and during the presentation the Officials referred to secured funding from DFP that 'will continue for future years'. Can you provide the Committee with confirmation for this ongoing, secured funding from DFP? While there may be high set-up capital costs for Councils, it is understood that it is likely that ongoing costs may be lower. Does the Department have any figures to estimate the ongoing costs? If a serious unforeseen pollution incident occurs for which funding was not requested at the beginning of the year, will the Department fund the Council's costs in dealing with this incident or the cost of implementing measures within an Action Zone? (e) During the presentation the Officials referred to updated GB guidance being made available to Councils. Can you provide the Committee with a copy of this guidance? (f) There was a lengthy discussion on the outcome of the Consultation Exercise and how the Department has dealt with the comments made by the 34 consultees who responded - the Committee noted the summary of the Department's standard response to 29 of these comments was that they 'will be met through clarification of the proposals.' Can you provide the Committee with a full copy of all responses and any associated key correspondence clarifying the concerns or the Department's response to the concerns raised? How exactly will the consultees' comments be 'met through clarification of the proposals', eg, how does the Department know that its clarification is sufficient to deal with the issue raised? (g) To date, the Committee has been considering a copy of the draft Policy Memorandum. Has this been agreed by the Executive? If not, when is this expected? When can the Committee expect to receive a copy of the E & FM and the Bill? You will appreciate the Committee is content to co-operate with the Department in progressing this, and other legislation, as suggested by your Minister in his letter of 20 March 2002 to Dr McCrea, subject to being satisfied with the specific terms of the Bill. Consequently, it is likely that it may not always be possible to give as much notice as normal when requesting Officials to attend Committee meetings. This also applies to replies to letters etc in that the sooner replies are received, the sooner the Committee will be able to progress the matter. I look forward to a response as soon as possible. JIM BEATTY ANNEX 7 LETTER FROM: 22 May 2002 LOCAL AIR QUALITY MANAGEMENT BILL Following a presentation by officials on the Policy Memorandum on 16 May, the Committee has requested clarification on a number of points. A reply to these will issue shortly. The purpose of this letter is to let you know that Mr Nesbitt wrote to the Executive on 17 May seeking agreement to proceed with introduction of the Local Air Quality Management Bill. Subject to the Executive's agreement, the Bill is scheduled for introduction on 10 June with second reading on 18 June. These dates may, however, be subject to change. I enclose for the information of the Committee a copy of the draft Bill together with the Explanatory and Financial Memorandum. The proposed Bill will satisfy the PfG commitment to introduce in Northern Ireland a policy and legislative framework to deliver Northern Ireland's contribution to objectives and targets for improving air quality contained in the Air Quality Strategy for England, Scotland, Wales and Northern Ireland. The requirements of the Directive were to be transposed into legislation by May 1998. Infraction proceedings have begun in relation to this legislation and it is vital that the Bill is introduced before the Summer recess so that it can complete its passage through the Assembly and receive Royal Assent by March 2003. The Committee will, of course, be consulted fully on any subsequent draft regulations. I trust that this information will be of help to the Committee. JENNIFER McCAY
LOCAL AIR QUALITY MANAGEMENT BILL [13/05/02 10:04:52] CONTENTS Air quality
General Schedules: Schedule 1 Air quality: Supplemental provisions [s501] Schedule 2 Supplemental provisions with respect to powers of entry [s502] A B I L L TO Make provision for implementing Council Directive 96/62 EC and for otherwise preventing and controlling air pollution; and for connected purposes. BE IT ENACTED by being passed by the Northern Ireland Assembly and assented to by Her Majesty as follows: Implementation of Directive [j79A] 1. This Act contains provision for the purposes of implementing Council Directive 96/62 EC on air quality assessment and management. 2.— (1) The Department shall as soon as possible prepare and publish a statement (in this Act referred to as "the strategy") containing policies with respect to the assessment or management of the quality of air. (2) Without prejudice to anything contained in this section, the Department may, in the exercise of its functions under this section, co-operate with the Secretary of State in the exercise of his functions under section 80 of the Environment Act 1995 (c. 25). (3) The strategy may also contain policies for implementing— (a) obligations of the United Kingdom under the Community Treaties, or (b) international agreements to which the United Kingdom is for the time being a party, so far as relating to the quality of air. (4) The strategy shall consist of— (a) a statement which relates to the whole of Northern Ireland; or (b) part of a joint statement, made with the Secretary of State, which— (i) relates to the whole or part of the United Kingdom; and (ii) includes any strategy made by the Secretary of State under section 80 of the Environment Act 1995 (c. 25). (5) The Department— (a) shall keep under review its policies with respect to the quality of air; and (b) may from time to time modify the strategy. (6) Without prejudice to the generality of what may be included in the strategy, the strategy shall include statements with respect to— (a) standards relating to the quality of air; (b) objectives for the restriction of the levels at which particular substances are present in the air; and (c) measures which are to be taken by relevant authorities and other persons for the purpose of achieving those objectives. (7) In preparing the strategy or any modification of it, the Department shall consult— (a) relevant authorities; (b) such bodies or persons appearing to it to be representative of the interests of industry as it may consider appropriate; and (c) such other bodies or persons as it may consider appropriate. (8) Before publishing the strategy or any modification of it, the Department shall— (a) publish a draft of the proposed strategy or modification, together with notice of a date before which, and an address at which, representations may be made to it concerning the draft so published; and (b) take into account any such representations which are duly made and not withdrawn. District council reviews [j82] 3.— (1) Each district council shall from time to time cause a review to be conducted of the quality for the time being, and the likely future quality within the relevant period, of air within the council's district. (2) Where a district council causes a review under subsection (1) to be conducted, it shall also cause an assessment to be made of whether air quality standards and objectives are being achieved, or are likely to be achieved within the relevant period, within the council's district. (3) If, on an assessment under subsection (2), it appears that any air quality standards or objectives are not being achieved, or are not likely within the relevant period to be achieved, within the district council's district, the council shall identify any parts of its district in which it appears that those standards or objectives are not likely to be achieved within the relevant period. Designation of air quality management areas [j83] 4.— (1) Where, as a result of an air quality review, it appears that any air quality standards or objectives are not being achieved, or are not likely within the relevant period to be achieved, within the district of a district council, the council shall by order designate as an air quality management area (in this Act referred to as a "designated area") all or any part of its district in which it appears that those standards or objectives are not being achieved, or are not likely to be achieved within the relevant period. (2) An order under this section shall identify the designated area and shall be in such form as may be prescribed. (3) A district council shall after making an order under this section cause to be published in the Belfast Gazette and once at least in each of two successive weeks in more than one newspaper circulating in the district to which the order relates a notice— (a) stating that the order has been made, and its general effect; and (b) specifying a place in the district of the council where a copy of the order and of any map or plan referred to therein may be inspected by any person free of charge at all reasonable times. (4) An order under this section may, as a result of a subsequent air quality review,— (a) be varied by a subsequent order; or (b) be revoked by such an order, if it appears on that subsequent air quality review that the air quality standards and objectives are being achieved, and are likely throughout the relevant period to be achieved, within the designated area, and subsections (2) and (3) also apply to an order made under paragraph (a) or (b). Further provisions in relation to designated areas [j84] 5.— (1) Where an order under section 4 comes into operation, the district council which made the order shall, for the purpose of supplementing such information as it has in relation to the designated area in question, cause an assessment to be made of— (a) the quality for the time being, and the likely future quality within the relevant period, of air within the designated area to which the order relates; and (b) the respects (if any) in which it appears that air quality standards or objectives are not being achieved, or are not likely within the relevant period to be achieved, within that designated area. (2) A district council which is required by subsection (1) to cause an assessment to be made shall also— (a) prepare, before the expiration of the period of twelve months beginning with the coming into operation of the order mentioned in that subsection, a report of the results of that assessment; and (b) prepare, in accordance with the following provisions, a written plan (in this Act referred to as an "action plan") for the exercise by the council, in pursuit of the achievement of air quality standards and objectives in the designated area, of any powers exercisable by the council. (3) A district council shall, before finally determining the content of the action plan, send to the Department and each relevant authority— (a) a copy of any order (together with any map or plan referred to therein) made by it under section 4; (b) a copy of the results of the assessment mentioned in subsection (1); (c) a copy of the report mentioned in subsection (2)(a); and (d) a copy of the proposed action plan. (4) Where a relevant authority has received the proposed action plan under subsection (3), it shall, within the relevant period, submit to the district council— (a) proposals for the exercise (so far as relating to the designated area) by the authority, in order to comply with or in pursuit of the achievement of air quality standards and objectives, of any powers exercisable by the authority; and (b) a statement of the time by which it proposes to implement each of the proposals. (5) Subject to subsection (8), an action plan shall, in addition to the measures proposed by the district council under subsection (2)(b), also include a statement of— (a) the proposals submitted pursuant to subsection (4)(a); (b) the times set out in the statement submitted pursuant to subsection (4)(b); (c) the time by which the district council in question proposes to implement each of the measures proposed by it comprised in the plan. (6) Subject to subsection (7), a district council may from time to time revise an action plan. (7) Before a district council revises an action plan under subsection (6), it shall provide the Department and each relevant authority with a copy of the proposed revision, and subsections (4) and (5) shall apply to a revision of the action plan as they apply to the making of the action plan. (8) Where a relevant authority disagrees with a district council about the contents of a proposed action plan or revision of an action plan— (a) either of them may refer the matter to the Department; (b) on any such reference the Department may confirm the council's proposed action plan or revision of the action plan, with or without modifications (whether or not proposed by the authority) or reject it and, if it rejects it, it may also exercise any of its powers under section 6; and (c) the council shall not finally determine the content of the action plan, or the revision of the action plan, except in accordance with the Department's decision on the reference or in pursuance of directions under section 6. (9) When the content of the action plan or the revision of the action plan is finally determined, the district council shall send a copy of the action plan or revision of the action plan to the Department and each relevant authority. 6.— (1) The Department may conduct or make, or cause to be conducted or made— (a) a review of the quality for the time being, and the likely future quality within the relevant period, of air within the district of any district council; (b) an assessment of whether air quality standards and objectives are being achieved, or are likely to be achieved within the relevant period, within the district of a district council; (c) an identification of any parts of the district of a district council in which it appears that those standards or objectives are not likely to be achieved within the relevant period; or (d) an assessment of the respects (if any) in which it appears that air quality standards or objectives are not being achieved, or are not likely within the relevant period to be achieved, within the district of a district council or within a designated area. (2) Where the Department exercises any of its powers under subsection (1) in respect of the district of any district council, it may recover the reasonable expenses incurred by it in the exercise of such powers from that council. (3) If it appears to the Department— (a) that air quality standards or objectives are not being achieved, or are not likely within the relevant period to be achieved, within the district of a district council; (b) that a district council has failed to discharge any duty imposed on it under this Act; (c) that the actions, or proposed actions, of a district council in purported compliance with the provisions of this Act are inappropriate in all the circumstances of the case; or (d) that developments in science or technology, or material changes in circumstances, have rendered inappropriate the actions or proposed actions of a district council in pursuance of this Act, the Department may give directions to the district council requiring it to take such steps as may be specified in the directions. (4) Without prejudice to the generality of subsection (3), directions under that subsection may, in particular, require a district council— (a) to cause an air quality review to be conducted under section 3 in accordance with the directions; (b) to cause an air quality review under section 3 to be conducted afresh, whether in whole or in part, or to be so conducted with such differences as may be specified or described in the directions; (c) to make an order under section 4 designating as an air quality management area an area specified in, or determined in accordance with, the directions; (d) to revoke, or modify in accordance with the directions, any order under that section; (e) to prepare in accordance with the directions an action plan for a designated area; (f) to modify, in accordance with the directions, any action plan prepared by the council; or (g) to implement, in accordance with the directions, any measures in an action plan. (5) The Department shall also have power to give directions to district councils requiring them to take such steps specified in the directions as the Department considers appropriate for the implementation of— (a) any obligations of the United Kingdom under the Community Treaties, or (b) any international agreement to which the United Kingdom is for the time being a party, so far as relating to the quality of air. (6) The Department shall after giving any direction under this section cause to be published in the Belfast Gazette and once at least in each of two successive weeks in more than one newspaper circulating in the district to which the direction relates a notice— (a) stating that the direction has been given and its general effect; and (b) specifying a place in the district of the council where a copy of the direction may be inspected by any person free of charge at all reasonable times. (7) A district council shall comply with any direction given to it under this Act. 7.— (1) Regulations may make provision— (a) for, or in connection with, implementing the strategy; or (b) for, or in connection with implementing— (i) obligations of the United Kingdom under the Community Treaties; or (ii) any international agreement to which the United Kingdom is for the time being a party, so far as relating to the quality of air; or (c) otherwise with respect to the assessment or management of the quality of air. (2) Without prejudice to the generality of subsection (1), regulations under that subsection may make provision— (a) prescribing standards relating to the quality of air; (b) prescribing objectives for the restriction of the levels at which particular substances are present in the air; (c) conferring or imposing functions on prescribed competent authorities; (d) for or in connection with— (i) authorising prescribed competent authorities (whether by agreements or otherwise) to exercise any functions of the Department on its behalf; (ii) directing that functions of the Department shall be exercisable concurrently with prescribed competent authorities; or (iii) transferring functions of the Department to prescribed competent authorities; (e) prohibiting or restricting, or for or in connection with prohibiting or restricting,— (i) the carrying on of prescribed activities, or (ii) the access of prescribed vehicles or mobile equipment to prescribed areas, whether generally or in prescribed circumstances; (f) for or in connection with the designation of air quality management areas by orders made by district councils in such cases or circumstances not falling within section 4 as may be prescribed; (g) for the application, with or without modifications, of any provisions of this Act in relation to areas designated by virtue of paragraph (f) or in relation to orders made by virtue of that paragraph; (h) with respect to— (i) air quality reviews; (ii) assessments under this Act; (iii) orders designating air quality management areas; or (iv) action plans; (j) prescribing measures which are to be adopted by prescribed competent authorities (whether in action plans or otherwise) or other persons in order to comply with, or in pursuance of the achievement of, air quality standards or objectives; (k) for or in connection with the communication to the public of information relating to quality for the time being, or likely future quality, of the air; (l) for or in connection with the obtaining by prescribed competent authorities from any person of information which is reasonably necessary for the discharge of functions conferred or imposed on them under this Act; (m) for or in connection with the recovery by a district council from prescribed persons in prescribed circumstances, and in such manner as may be prescribed, of costs incurred by the council in discharging functions conferred or imposed on the council under this Act; (n) for a person who contravenes any prescribed provision of the regulations to be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale or such lower level on that scale as may be prescribed in relation to the offence; (o) for or in connection with arrangements under which a person may discharge any liability to conviction for a prescribed offence by payment of a penalty of a prescribed amount; (p) for or in connection with appeals against determinations or decisions made, notices given or served, or other things done under the regulations. (3) Without prejudice to the generality of paragraph (h) of subsection (2), the provision that may be made by virtue of that paragraph includes provision for or in connection with any of the following, that is to say— (a) the scope or form of a review or assessment; (b) the scope, content or form of an action plan; (c) the time at which, period within which, or manner in which a review or assessment is to be carried out or an action plan is to be prepared; (d) the methods to be employed— (i) in carrying out reviews or assessments; or (ii) in monitoring the effectiveness of action plans; (e) the factors to be taken into account in preparing action plans; (f) the actions which must be taken by prescribed competent authorities or other persons in consequence of reviews, assessments or action plans; (g) requirements for consultation; (h) the treatment of representations or objections duly made; (j) the publication of, or the making available to the public of, or of copies of,— (i) the results, or reports of the results, of reviews or assessments; or (ii) orders or action plans; (k) requirements for— (i) copies of any such reports, orders or action plans, or (ii) prescribed information, in such form as may be prescribed, relating to reviews or assessments, to be sent to the Department. (4) In determining— (a) any appeal against, or reference or review of, a decision of a district council under regulations, or (b) any application transmitted from a district council under any such regulations, the body or person making the determination shall be bound by any direction given by the Department to the district council to the same extent as the council. (5) The provisions of any regulations may include— (a) provision for anything that may be prescribed by the regulations to be determined under the regulations and for anything falling to be so determined to be determined by such persons, in accordance with such procedure and by reference to such matters, and to the opinion of such persons, as may be prescribed; and (b) such supplemental, consequential, incidental, transitional or saving provisions (including provisions amending, repealing or revoking statutory provisions) as the Department considers appropriate. (6) Before making any regulations, the Department shall consult— (a) such competent authorities as the Department considers appropriate; (b) such bodies or persons appearing to it to be representative of the interests of industry as it may consider appropriate; and (c) such other bodies or persons as it may consider appropriate. Recommendations and guidance [j88] 8.— (1) A relevant authority may make recommendations to a district council with respect to the carrying out of— (a) any particular air quality review, (b) any particular assessment under section 3 or 5, or (c) the preparation of any particular action plan or revision of an action plan, and the district council shall take into account any such recommendations. (2) The Department may issue guidance to a district council or relevant authority with respect to, or in connection with, the exercise of the council's or the authority's functions under this Act. (3) A district council or relevant authority, in carrying out any of its functions under this Act, shall have regard to any guidance issued by the Department under this Act. Supplemental provisions and miscellaneous amendments [j90] 9. Schedule 1 shall have effect. 10.— (1) The Department may make grants or loans to any body or person for the purposes of or in connection with— (a) carrying out an air quality review; (b) carrying out an assessment under section 3 or 5; (c) preparing and implementing an action plan; and (d) the assessment or management of the quality of air. (2) Grants or loans made by the Department under this section— (a) shall be of such amounts; and (b) shall be made on such terms and conditions (including in the case of grants, conditions as to repayment), as may be determined by the Department. Powers of enforcing authorities and persons authorised by them [j108] 11.— (1) An authorised person may, on production (if so required) of his authority, exercise any of the powers specified in subsection (2) for the purpose of— (a) determining whether any provision of the pollution control statutory provisions is being, or has been, complied with; (b) discharging one or more of the functions conferred or imposed on an enforcing authority by or under the pollution control statutory provisions; or (c) determining whether and, if so, how such a function should be discharged. (2) The powers of an authorised person are— (a) to enter at any reasonable time any premises which he has reason to believe it is necessary for him to enter; (b) on entering any premises by virtue of paragraph (a), to take with him— (i) any other person duly authorised by the enforcing authority and, if the authorised person has reasonable cause to apprehend any serious obstruction in the execution of his duty, a constable; and (ii) any equipment or materials required for any purpose for which the power of entry is being exercised; (c) to make such examination and investigation as may in any circumstances be necessary; (d) as regards any premises which he has power to enter, to direct that those premises or any part of them, or anything in them, shall be left undisturbed (whether generally or in particular respects) for so long as is reasonably necessary for the purpose of any examination or investigation under paragraph (c); (e) to take such measurements and photographs and make such recordings as he considers necessary for the purpose of any examination or investigation under paragraph (c); (f) to take samples, or cause samples to be taken, of any articles or substances found in or on any premises which he has power to enter, and of the air, in, on, or in the vicinity of, the premises; (g) to require any person whom he has reasonable cause to believe to be able to give any information relevant to any examination or investigation under paragraph (c) to answer (in the absence of persons other than a person nominated by that person to be present and any persons whom the authorised person may allow to be present) such questions as the authorised person thinks fit to ask and to sign a declaration of the truth of his answers; (h) to require the production of, or where the information is recorded in computerised form, the furnishing of extracts from, any records— (i) which are required to be kept under the pollution control statutory provisions, or (ii) which it is necessary for him to see for the purposes of an examination or investigation under paragraph (c), and to inspect and take copies of, or of any entry in, the records; (j) to require any person to afford him such facilities and assistance with respect to any matters or things within that person's control or in relation to which that person has responsibilities as are necessary to enable the authorised person to exercise any of the powers conferred on him by this section; (k) any other power for a purpose mentioned in subsection (1) which is conferred by regulations. (3) The powers which under subsections (1) and (2) are conferred in relation to any premises for the purpose of enabling an enforcing authority to determine whether any provision of the pollution control statutory provisions is being, or has been, complied with shall include power, in order to obtain the information on which that determination may be made, to install, keep or maintain monitoring and other apparatus there. (4) In any case where it is proposed to enter any premises used for residential purposes, or to take heavy equipment on to any premises which are to be entered, any entry by virtue of this section shall only be effected— (a) after the expiration of at least seven days' notice of the proposed entry given to a person who appears to the authorised person in question to be in occupation of the premises in question, and (b) either— (i) with the consent of a person who is in occupation of those premises; or (ii) under the authority of a warrant by virtue of Schedule 2. (5) Where an authorised person proposes to enter any premises and— (a) entry has been refused and he apprehends on reasonable grounds that the use of force may be necessary to effect entry, or (b) he apprehends on reasonable grounds that entry is likely to be refused and that the use of force may be necessary to effect entry, any entry on to those premises by virtue of this section shall only be effected under the authority of a warrant by virtue of Schedule 2. (6) Regulations may make provision as to the procedure to be followed in connection with the taking of, and the dealing with, samples under subsection (2)(f). (7) No answer given by a person in pursuance of a requirement imposed under subsection (2)(g) shall be admissible in evidence against that person in any proceedings. (8) Nothing in this section shall be taken to compel the production by any person of a document of which he would on grounds of legal professional privilege be entitled to withhold production on an order for discovery in an action in the High Court. (9) Schedule 2 shall have effect with respect to the powers of entry and related powers which are conferred by this section. (10) In this section and Schedule 2— "authorised person" means a person who is authorised in writing by an enforcing authority for the purposes of this section; "enforcing authority" means— (a) the Department; or (b) a district council; "mobile plant" means plant which is designed to move or to be moved whether on roads or otherwise; "premises" includes any land, vehicle, vessel or mobile plant. (11) Nothing in section 98 of the Local Government Act (Northern Ireland) 1972 (c. 9) shall apply to functions conferred on a district council under this Act. 12.— (1) It is an offence for a person intentionally to obstruct an authorised person in the exercise of his powers or duties. (2) It is an offence for a person, without reasonable excuse,— (a) to fail to comply with any requirement imposed under section 11; (b) to fail or refuse to provide facilities or assistance or any information or to permit any inspection reasonably required by an authorised person in the discharge of his functions under that section; or (c) to prevent any other person from appearing before an authorised person, or answering any question to which an authorised person may require an answer under that section. (3) It is an offence for a person falsely to pretend to be an authorised person. (4) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale. (5) In this section— "authorised person" has the same meaning as in section 11; "powers or duties" includes powers or duties exercisable by virtue of a warrant under Schedule 2. Disclosure of information [j113] 13.— (1) Notwithstanding any prohibition or restriction imposed by or under any statutory provision or rule of law, information of any description may be disclosed— (a) by the Department to any relevant authority; or (b) by any relevant authority to the Department or to any other relevant authority, for the purpose of facilitating the carrying out by the Department or by any relevant authority of any of its functions under this Act; and no person shall be subject to any civil or criminal liability in consequence of any disclosure made by virtue of this subsection. (2) Nothing in this section shall authorise the disclosure of information, disclosure of which would, in the opinion of the Secretary of State, be contrary to the interests of national security. (3) No information disclosed to any person under this section shall be disclosed by that person to any other person otherwise than in accordance with the provisions of this section, or any other statutory provision which authorises or requires the disclosure, if that information is information— (a) which relates to a trade secret of any person or which otherwise is or might be commercially confidential in relation to any person; or (b) whose disclosure otherwise than under this section would, in the opinion of the Secretary of State, be contrary to the interests of national security. (4) Any authorisation by or under this section of the disclosure of information by or to any person shall be taken to authorise the disclosure of that information by or, as the case may be, to any officer of his who is authorised by him to make the disclosure or, as the case may be, to receive the information. (5) Information is for the purposes of this section commercially confidential in relation to any person if its disclosure would prejudice to an unreasonable degree the commercial interest of that person. Power to give effect to Community and other international obligations, etc. [j88A] 14.— (1) Regulations may provide that the provisions of this Act shall have effect with such modifications as may be prescribed for the purpose of enabling Her Majesty's Government in the United Kingdom— (a) to give effect to any obligations of the United Kingdom under the Community Treaties or exercise any related right; or (b) to give effect to any obligation or exercise any related right under any international agreement to which the United Kingdom is for the time being a party. (2) In this section "related right", in relation to an obligation, includes any derogation or other right to make more onerous provisions available in respect of that obligation. Offences by bodies corporate [j88B] 15. For the purposes of this Act section 20(2) of the Interpretation Act (Northern Ireland) 1954 (c. 33) applies with the omission of the words "the liability of whose members is limited" and where the affairs of a body corporate are managed by its members, applies in relation to the acts or defaults of a member in connection with his functions of management as if he were a director of the body corporate. Offences under this Act due to fault of others [j88C] 16. Where the commission by any person of an offence under this Act is due to the act or default of some other person, that other person may be charged with and convicted of the offence by virtue of this section whether or not proceedings for the offence are taken against the first-mentioned person. 17.— (1) Subject to the provisions of this section, the provisions of this Act and of regulations and orders made under it shall bind the Crown to the full extent authorised or permitted by the constitutional laws of Northern Ireland. (2) No contravention by the Crown of any provision of this Act or of any regulations or order made under it shall make the Crown criminally liable; but the High Court may, on the application of a relevant authority, declare unlawful any act or omission of the Crown which constitutes such a contravention. (3) Notwithstanding anything in subsection (2), the provisions of this Act and of regulations and orders made under it shall apply to persons in the public service of the Crown as they apply to other persons. (4) If the Secretary of State certifies that it appears to him, as respects any Crown premises and any power of entry exercisable in relation to them specified in the certificate that it is requisite or expedient that, in the interests of national security, the powers should not be exercisable in relation to those premises, those powers shall not be exercisable in relation to those premises; and in this subsection "Crown premises" means premises held or used by or on behalf of the Crown. (5) Any reference to the Crown in this section includes the Crown in right of Her Majesty's Government in the United Kingdom. Regulations and directions [j122] 18.— (1) No regulations to which this subsection applies shall be made unless a draft of the regulations has been laid before, and approved by a resolution of, the Assembly. (2) Subsection (1) applies to— (a) regulations under this Act containing any provision which creates an offence or increases a penalty for an existing offence; (b) regulations under this Act containing any provision which amends or repeals any Northern Ireland legislation. (3) Other regulations under this Act shall be subject to negative resolution. (4) Any direction given under this Act shall be in writing and may be varied or revoked by subsequent directions. (5) Subsections (6) and (7) apply to any direction given to any body or person under any provision of this Act being a direction to any extent so given for the purpose of implementing any obligations of the United Kingdom under the Community Treaties. (6) A direction to which this subsection applies shall not be varied or revoked unless, notwithstanding the variation or revocation, the obligations mentioned in subsection (5), as they have effect for the time being, continue to be implemented, whether by directions or any other instrument or by any statutory provision. (7) Any variation or revocation of a direction to which this subsection applies shall be published in such manner as the Department considers appropriate for the purpose of bringing the matters to which it relates to the attention of persons likely to be affected by them; and— (a) copies of the variation or revocation shall be made available to the public; and (b) notice of the variation or revocation, and of where a copy of the variation or revocation may be obtained, shall be given in the Belfast Gazette. 19.— (1) In this Act— "action plan" shall be construed in accordance with section 5(2)(b); "air" means ambient air; "air quality objectives" means objectives prescribed by virtue of section 7(2)(b); "air quality review" means a review under section 3 or 6; "air quality standards" means standards prescribed by virtue of section 7(2)(a); "ambient air" means outdoor air in the troposphere, excluding work places; "competent authority" means a Northern Ireland department, a district council or any other public body; "the Department" means the Department of the Environment; "designated area" has the meaning given by section 4(1); "modifications" includes additions, alterations and omissions; "notice" means notice in writing; "pollution control statutory provisions" means— (a) this Act and any regulations made under it; and (b) regulations made under section 2(2) of the European Communities Act 1972 (c. 68) to the extent that the regulations relate to air pollution; "prescribed" means prescribed by regulations; "public body" means a body established or constituted by or under a statutory provision; "regulations" means regulations made by the Department; "relevant authority" in the case of any provision of this Act, means such competent authority as may be prescribed for the purposes of that provision; "the relevant period" in the case of any provision of this Act, means such period as may be prescribed for the purposes of that provision; "statutory provision" has the meaning assigned to it by section 1(f) of the Interpretation Act (Northern Ireland) 1954 (c. 33); "the strategy" has the meaning given by section 2(1). (2) Any reference in this Act to it appearing that any air quality standards or objectives are not likely within the relevant period to be achieved includes a reference to it appearing that those standards or objectives are likely within that period not to be achieved. 20. This Act may be cited as the Local Air Quality Management Act (Northern Ireland) 2002. SCHEDULES SCHEDULE 1 AIR QUALITY: SUPPLEMENTAL PROVISIONS [S501] Consultation requirements 1.— (1) A district council in carrying out its functions in relation to— (a) any air quality review, (b) any assessment under section 3 or 5, or (c) the preparation of an action plan or any revision of an action plan, shall consult such other persons as fall within sub-paragraph (2). (2) Those persons are— (a) the Department; (b) each district council whose district is contiguous to the council's district; (c) such competent authorities exercising functions in, or in the vicinity of, the council's district as the council may consider appropriate; (d) such bodies or persons appearing to the council to be representative of persons with business interests in the district to which the review or action plan in question relates as the council may consider appropriate; (e) such other bodies or persons as the council may consider appropriate. Exchange of information 2.— (1) A relevant authority shall provide a district council with all such information as is reasonably requested by the council for purposes connected with the carrying out of its functions under this Act. (2) A district council shall provide a relevant authority with all such information as is reasonably requested by the authority for purposes connected with the carrying out of any of its functions relating to the assessment or management of the quality of air. (3) Information provided to a district council or relevant authority under sub-paragraph (1) or (2) shall be provided in such form and in such manner and at such times as the council or, as the case may be, the authority may reasonably require. (4) A relevant authority or district council which provides information under sub-paragraph (1) or (2) shall be entitled to recover the reasonable cost of doing so from the council or authority which requested the information. (5) The information which a relevant authority or a district council may be required to provide under this paragraph shall include information which, although it is not in the possession of the authority or the council, is information which it is reasonable to require the authority or the council to obtain. Joint exercise of district council functions 3.— (1) The Department may give directions to any two or more district councils requiring them to discharge functions under this Act jointly in accordance with the directions. (2) Where two or more district councils have jointly discharged functions under this Act, the Department may give them directions requiring them to revoke, or modify in accordance with the directions, the arrangements which they have made. Public access to information about air quality 4.— (1) Each district council shall— (a) secure that there is available at all reasonable times for inspection by the public free of charge a copy of each of the documents specified in sub-paragraph (2); and (b) afford to members of the public facilities for obtaining copies of those documents on payment of a reasonable charge. (2) The documents mentioned in sub-paragraph (1)(a) are— (a) a report of the results of any air quality review which the council has caused to be conducted; (b) a report of the results of any assessment which the council has caused to be made under section 3 or 5; (c) any order (together with any map or plan referred to therein) made by the council under section 4; (d) any action plan prepared by the council; (e) any proposals or statements submitted to the council pursuant to subsection (4)(a) or (b) of section 5; (f) any directions given to the council under this Act. Fixed penalty offences 5.— (1) Without prejudice to the generality of paragraph (o) of subsection (2) of section 7, regulations may, in particular, make provision— (a) for the qualifications, appointment or authorisation of persons who are to issue fixed penalty notices; (b) for the offences in connection with which, the cases or circumstances in which, the time or period at or within which, or the manner in which fixed penalty notices may be issued; (c) prohibiting the institution, before the expiration of the period for paying the fixed penalty, of proceedings against a person for an offence in connection with which a fixed penalty notice has been issued; (d) prohibiting the conviction of a person for an offence in connection with which a fixed penalty notice has been issued if the fixed penalty is paid before the expiration of the period for paying it; (e) entitling, in prescribed cases, a person to whom a fixed penalty notice is issued to give, within a prescribed period, notice requesting a hearing in respect of the offence to which the fixed penalty notice relates; (f) for the amount of the fixed penalty to be increased by a prescribed amount in any case where the person liable to pay the fixed penalty fails to pay it before the expiration of the period for paying it, without having given notice requesting a hearing in respect of the offence to which the fixed penalty notice relates; (g) for or in connection with the recovery of an unpaid fixed penalty as a fine or as a civil debt or as if it were a sum payable under a county court order; (h) for or in connection with enforcement in respect of an unpaid fixed penalty by prescribed persons; (j) for a fixed penalty notice, and any prescribed proceedings or other prescribed steps taken by reference to the notice, to be rendered void in prescribed cases where a person makes a prescribed statutory declaration, and for the consequences of any notice, proceedings or other steps being so rendered void (including extension of any time limit for instituting criminal proceedings); (k) for or in connection with the extension, in prescribed cases or circumstances, by a prescribed person of the period for paying a fixed penalty; (l) for or in connection with the withdrawal, in prescribed circumstances, of a fixed penalty notice, including— (i) repayment of any amount paid by way of fixed penalty in pursuance of a fixed penalty notice which is withdrawn; and (ii) prohibition of the institution or continuation of proceedings for the offence in connection with which the withdrawn notice was issued; (m) for or in connection with the disposition of sums received by way of fixed penalty; (n) for a certificate purporting to be signed by or on behalf of a prescribed person and stating either— (i) that payment of a fixed penalty was, or (as the case may be) was not, received on or before a date specified in the certificate, or (ii) that an envelope containing an amount sent by post in payment of a fixed penalty was marked as posted on a date specified in the certificate, to be received as evidence of the matters so stated and to be treated, without further proof, as being so signed unless the contrary is shown; (o) requiring a fixed penalty notice to give such reasonable particulars of the circumstances alleged to constitute the fixed penalty offence to which the notice relates as are necessary for giving reasonable information of the offence and to state— (i) the monetary amount of the fixed penalty which may be paid; (ii) the person to whom, and the address at which, the fixed penalty may be paid and any correspondence relating to the fixed penalty notice may be sent; (iii) the method or methods by which payment of the fixed penalty may be made; (iv) the period for paying the fixed penalty; (v) the consequences of the fixed penalty not being paid before the expiration of that period; (p) similar to any provision made by Article 84 of the Road Traffic Offenders (Northern Ireland) Order 1996 (NI 10) (statements by constables in fixed penalty cases); (q) for presuming, in any proceedings, that any document of a prescribed description purporting to have been signed by a person to whom a fixed penalty notice has been issued has been signed by that person; (r) requiring or authorising a fixed penalty notice to contain prescribed information relating to, or for the purpose of facilitating, the administration of the fixed penalty system; (s) with respect to the giving of fixed penalty notices, including, in particular, provision with respect to— (i) the methods by which, (ii) the officers, servants or agents by, to or on whom, and (iii) the places at which, fixed penalty notices may be given by, or served on behalf of, a prescribed person; (t) prescribing the method or methods by which fixed penalties may be paid; (u) for or with respect to the issue of prescribed documents to persons to whom fixed penalty notices are or have been given; (v) for a fixed penalty notice to be treated for prescribed purposes as if it were a complaint or summons or any other document of a prescribed description. (2) The provision that may be made by regulations prescribing fixed penalty offences includes provision for an offence to be a fixed penalty offence— (a) only if it is committed in such circumstances or manner as may be prescribed; or (b) except if it is committed in such circumstances or manner as may be prescribed. (3) Regulations may make provision for such exceptions, limitations and conditions as the Department considers necessary or expedient. (4) In this paragraph— "fixed penalty" means a penalty of such amount as may be prescribed (whether by being specified in, or made calculable under, regulations); "fixed penalty notice" means a notice offering a person an opportunity to discharge any liability to conviction for a fixed penalty offence by payment of a penalty of a prescribed amount; "fixed penalty offence" means, subject to sub-paragraph (2), any offence under the pollution control statutory provisions which is for the time being prescribed as a fixed penalty offence; "the fixed penalty system" means the system implementing regulations; "the period for payment", in relation to any fixed penalty, means such period as may be prescribed for the purpose; "regulations" means regulations under paragraph (o) of subsection (2) of section 7. Traffic regulation orders 6. In Article 4 of the Road Traffic Regulation (Northern Ireland) Order 1997 (NI 2) (traffic regulation orders), at the end of paragraph (1) there shall be added "or (g) for any of the purposes specified in paragraphs (a) to (c) of subsection (1) of section 7 of the Local Air Quality Management Act (Northern Ireland) 2002.". Industrial pollution 7. In Article 7 of the Industrial Pollution Control (Northern Ireland) Order 1997 (NI 18) (conditions of authorisations), at the end of paragraph (12) (definition of "the relevant statutory provisions") there shall be added "and (f) section 7 of the Local Air Quality Management Act (Northern Ireland) 2002.". SCHEDULE 2 SUPPLEMENTAL PROVISIONS WITH RESPECT TO POWERS OF ENTRY [S502] Interpretation 1. In this Schedule "relevant power" means a power conferred by section 11, including a power exercisable by virtue of a warrant under this Schedule. Issue of warrants 2.— (1) If it is shown to the satisfaction of a justice of the peace on complaint on oath— (a) that there are reasonable grounds for the exercise in relation to any premises of a relevant power; and (b) that one or more of the conditions specified in sub-paragraph (2) is fulfilled in relation to those premises, the justice may by warrant authorise an authorised person to exercise the power in relation to those premises, in accordance with the warrant and, if need be, by force. (2) The conditions mentioned in sub-paragraph (1)(b) are— (a) that the exercise of the power in relation to the premises has been refused; (b) that such a refusal is reasonably apprehended; (c) that the premises are unoccupied; (d) that the occupier is temporarily absent from the premises and the case is one of urgency; or (e) that an application for admission to the premises would defeat the object of the proposed entry. (3) In a case where subsection (4) of section 11 applies, a justice of the peace shall not issue a warrant under this Schedule by virtue only of being satisfied that the exercise of a power in relation to any premises has been refused, or that a refusal is reasonably apprehended, unless he is also satisfied that the notice required by that subsection has been given and that the period of that notice has expired. (4) Every warrant under this Schedule shall continue in force until the purposes for which the warrant was issued have been fulfilled. Information obtained to be admissible in evidence 3.— (1) Subject to section 11(7), information obtained in consequence of the exercise of a relevant power, with or without the consent of any person, shall be admissible in evidence against that or any other person. (2) Without prejudice to the generality of sub-paragraph (1), information obtained by means of monitoring or other apparatus installed on any premises in the exercise of a relevant power, with or without the consent of any person in occupation of the premises, shall be admissible in evidence in any proceedings against that or any other person. Duty to secure premises 4. An authorised person who, in the exercise of a relevant power enters on any premises which are unoccupied or whose occupier is temporarily absent shall leave the premises as effectually secured against trespassers as he found them. Compensation 5.— (1) Where an authorised person exercises any power conferred by section 11(2)(a) or (b) or (3), the enforcing authority under whose authorisation he acts shall make full compensation to any person who has sustained loss or damage by reason of— (a) the exercise by the authorised person of that power; or (b) the performance of, or failure of the authorised person to perform, the duty imposed by paragraph 4. (2) Compensation shall not be payable by virtue of sub-paragraph (1) in respect of any loss or damage if the loss or damage— (a) is attributable to the default of the person who sustained it; or (b) is loss or damage in respect of which compensation is payable under any other provision of the pollution control statutory provisions. (3) Any dispute as to a person's entitlement to compensation under this paragraph, or as to the amount of any such compensation, shall be referred to and determined by the Lands Tribunal; and Articles 4 and 5 of the Land Compensation (Northern Ireland) Order 1982 (NI 9) shall apply to such determination. LOCAL AIR QUALITY MANAGEMENT BILL ________________ EXPLANATORY AND FINANCIAL MEMORANDUM INTRODUCTION 1. This Explanatory and Financial Memorandum relates to the Local Air Quality Management Bill. It has been prepared by the Department of the Environment in order to assist the reader of the Bill and has not been endorsed by the Assembly. All references throughout this Explanatory and Financial Memorandum, to the Department should be read as the Department of the Environment. 2. The Memorandum needs to be read in conjunction with the Bill. It does not, and is not meant to be a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given. BACKGROUND AND POLICY OBJECTIVES 3. The Local Air Quality Management Bill will make provision for implementing Council Directive 96/62 EC on Ambient Air Quality Assessment and Management. The proposed Bill will also satisfy the Programme for Government (PfG) commitment to have in place, by May 2003, a policy and legislative framework to deliver Northern Ireland's contribution to the targets in the UK Air Quality Strategy for England, Scotland, Wales and Northern Ireland. 4. Effective transposition of the Directive, and implementation of the PfG commitment, requires the establishment of a statutory scheme affecting the relevant parties. The proposed Bill, therefore, places a range of statutory requirements on relevant authorities (to be prescribed by regulations). These statutory requirements are dictated by the responsibilities within the various agencies' control and what is required to satisfy the Directive. 5. The Minister has approved the Policy Proposals in relation to the Bill.
Key Features 6. The proposed legislation seeks to establish an effective local air quality management system for Northern Ireland. This aim will be achieved by:
7. Subsequent Regulations, made under the authority of the proposed Bill, will place in statute the objectives and targets contained in the Air Quality Strategy, which will reflect established EC limit values (objectives) and targets. 8. The proposals in the Bill are mainly based on those contained in Part IV of the Environment Act 1995 (GB). In addition the Bill provides the Department with the power to fund air quality work and to recoup the cost of carrying out any air quality function on behalf of a District Council. It also ensures the public are kept informed of air quality issues such as the designation of air quality management areas. CONSULTATION 9. In October 2001 the Department carried out a public consultation on the proposal to provide legislation for the management of air quality in Northern Ireland and in January 2002 officials made a presentation to the Environment Committee setting out the proposals for the Bill. 10. As a result of the consultation exercise a total of 36 responses were received, all of which welcomed the proposals. The majority of the responses have been met by clarification of the proposals without the need for any change to the proposals. Of the remaining 5 issues raised, 4 were rejected on the grounds that they were not a matter for the legislation and one was accepted. OPTIONS CONSIDERED 11. Initially, three options were considered for transposing the requirements of the ambient air quality assessment and management Directive in Northern Ireland. The first was a "do nothing" option. However this was discounted on the grounds that transposition of Directives into law by Member States is mandatory. 12. The second option considered was to transpose by regulations made under the European Communities Act 1972. While this would be possible solely in respect of transposing the Directive on ambient air quality assessment and management it would not provide a legislative framework to deliver Northern Ireland's contribution to the targets in the Air Quality Strategy for England, Scotland, Wales and Northern Ireland. 13. The third option considered was to transpose through a combination of primary and subordinate legislation. 14. This option had the advantage of providing for a combined transposition of the EC Directive and the creation of a legislative framework to deliver Northern Ireland's contribution to the targets in the Air Quality Strategy for England, Scotland, Wales and Northern Ireland. In addition this option had the advantage of enabling the primary legislation to provide powers for other relevant Directives to be transposed by way of regulations without the need for further primary legislation. 15. In view of these advantages, the Department proposes to proceed with the third option. OVERVIEW 16. The Bill has 20 clauses and 2 schedules. COMMENTARY ON CLAUSES Clause 1: Implementation of Directive This clause states that the Bill contains provisions for implementing the Council Directive 96/62 EC on ambient air quality assessment and management in Northern Ireland. Clause 2 : Air Quality Strategy This clause imposes on the Department the obligation to prepare and publish a statement or strategy document setting out the air quality strategy for Northern Ireland. The strategy should contain policies for the assessment and management of air quality, which have been formulated to prevent or mitigate the effects of pollution. The strategy should also set out the European framework within which the strategy must work and include standards and objectives for specific pollutants and a timetable for their achievements. It should also set out the steps/measures, which the Government is proposing to take. The Strategy may be a joint strategy with other Administrations or a Northern Ireland regional one. Subsection (1) requires the Department to prepare and publish a strategy setting out the policies for the assessment and management of air quality in Northern Ireland. Subsection (2) provides that the Department may co-operate with the Secretary of State in exercise of his functions in relation to the air quality strategy. Subsection (3) the strategy may contain policies for implementing UK obligations under the Community Treaties or other international agreements in relation to air quality. Subsection (4) requires that the Strategy consists of :
Subsection (5) states that the Department will keep air quality policies under review and may from time to time modify the strategy. Subsection (6) provides that the strategy shall include statements relating to air quality standards and objectives for the levels of specific pollutants in the air. It should also contain measures needed to be taken by relevant authorities and other persons in order to achieve the objectives set for levels of pollutants in the air. Subsection (7) requires the Department to consult specific people before preparing or modifying the strategy, i.e., relevant authorities, those who represent the interests of industry, and appropriate other bodies or persons. Subsection (8) requires the Department, before publishing a strategy or modifying it, to publish a draft of the strategy or modification of the strategy and a notice stating where representations may be made. It is also required to take into account any representations made. Clause 3 : District Council reviews This clause places a responsibility on a District Council to carry out a review of the air quality, and the likely future quality of air, within its area. Where a review has been carried out an assessment should be made of whether the air quality standards and objectives are being achieved, within a specified period. The District Council will then be required to identify particular parts, within its area, where the standards are not likely to be achieved. Subsection (1) requires each District Council periodically to review the quality of air and the likely future quality, within a specified period. Subsection (2) places a further duty on each District Council, following a review to carry out an assessment of whether the air quality standards and objectives are being achieved, or likely to be achieved, within a specified period. Subsection (3) following action required in subsection (2) a District Council, must identify the particular parts of its area, if any, where those standards or objectives are not likely to be achieved. Clause 4 : Designation of air quality management areas This clause provides that where a District Council carries out a review of its air quality, and finds that in a certain part of its area air quality standards and objectives are not being met, or are unlikely to be met within the time period, it must make an order designating that part of its area as an air quality management area. The District Council is required to publish the order. An order may also be varied or revoked by a further order. Subsection (1) requires a District Council, which identifies air quality standards, or objectives are not being achieved or are not likely to be achieved, to make an order designating that part of its council area as an air quality management area. Subsection (2) specifies that the order will identify the area designated. The format of an order may be prescribed. Subsection (3) requires a District Council to publish, at specific times, a notice of the order in the Belfast Gazette and in more than one newspaper circulating in the district. The notice must state that the order has been made, and advise the public where a copy of the order and map or plan may be inspected free of charge. Subsection (4) states that as a result of a subsequent review the order may be varied or revoked by a further order. Clause 5: Further provisions relating to designated areas This clause sets out the steps a District Council must take after it has made a designation order. Within a specified period of making the designation order, a District Council must supplement the information it has on the designated area by carrying out an assessment. The assessment of the air quality should cover the present and likely future air quality standards or objectives and whether they are being or are not likely to be achieved. The District Council will then prepare a report of the findings of the assessment. Subsection (1) requires a District Council, to supplement the information held in relation to the designated area by drawing up an assessment. The assessment should contain information about the designated area such as, the present air quality and the likely future air quality within a specified period. It should also set out the ways in which the air quality standards are not being achieved or are not likely to be achieved, within the specified period. Subsection (2) A District Council, which has to carry out, an assessment at subsection (1) is also required to: -
Subsection (3) requires a District Council before finalising the content of the action plan to send to the Department and each relevant authority, copies of specific papers such as any order, (together with any map), made by the council, the results of any assessment, the report of the assessment, together with the proposed action plan. Subsection (4) requires a relevant authority when it receives an action plan, as at subsection (3), to submit to a District Council its proposals relating to its functions, in order to achieve air quality standards and objectives. These should also include the times for implementing each proposal. Subsection (5) sets out, in addition to subsection (2), the contents of an action plan which should contain proposals as in subsection (4) and the times in which a District Council's proposal will be implemented. Subsection (6) states that a District Council may revise an action plan, subject to subsection (7). Subsection (7) requires a District Council, before revising an action plan, to provide the Department and each relevant authority with a copy of the proposed revision. Subsection (4) and (5) will apply to any proposed revision of an action plan. Subsection (8) in the event of a disagreement between relevant authorities and a District Council, as to the content of a proposed or revised action plan the matter may be referred, by either party, to the Department. A District Council may not finally determine the content of an action plan accept in accordance with the Department's decision. Clause 6 : Reserve powers This clause confers on the Department the power to exercise any of the air quality functions, which should be undertaken by a District Council. It also gives the power to the Department to recoup the costs of any such exercise undertaken on a District Council's behalf. The Department has also a power to give direction to a District Council requiring it to carry out a specific action in relation to air quality. This clause also provides the power to the Department to give direction to a District Council in order to implement aspects of Community Treaties, or any international agreement relating to the quality of air. There is a requirement placed on the Department to publish any directions given, and to make copies available to the public. A District Council must comply with any such direction given to it. Subsection (1) provides for the Department to carry out any of the air quality functions, which should be carried out by a District Council. Subsection (2) provides the Department with the power to recoup the reasonable expenses of carrying out any of the functions under subsection (1). Subsection (3) provides the Department with the power to give directions to a District Council. Subsection (4) sets out specific actions relating to a District Council's air quality functions, which may be specified in directions given by the Department. Subsection (5) also provides the Department with the power to give directions to District Councils in relation to implementing UK obligations under the Community Treaties and international agreements related to air quality matters. Subsection (6) requires the Department to publish any directions made under this legislation and to state where a copy may be inspected by the public, free of charge. Subsection (7) requires a District Council to comply with any direction given to it under this Act. Clause 7 : Regulations This clause provides the Department with the power to make regulations to implement the air quality strategy, and to implement UK obligations under the Community Treaties or other international obligations, or to make more detailed provision for the assessment or management of air quality. Subsection (1) states that regulations may be made to implement the strategy, European obligations under the Community Treaties, or international agreements in relation to air quality, and for the assessment and management of air quality. Subsection (2) specifies that regulations may be provided for: -
Subsection (3) provides the power in relation to subsection (2) to make additional regulations for example, the format, scope, content, methods - etc., of reviews, assessments, and action plans. In addition regulations may also be made for the publication and making available to the public, copies of documents, requirements for consultations and for copies of specified documents to be sent to the Department. Subsection (4) provides that in determining appeals the body or person shall be bound to any direction given to a District Council. Subsection (5) states that regulations may be made for determining or setting out procedures. They may also be made to cover amendments, incidental, supplemental, etc., including, amending, repealing, or revoking statutory provisions considered appropriate by the Department. Subsection (6) requires the Department to consult specified people before making any regulations i.e. competent authorities, bodies or persons representing the interests of industry, and any other appropriate body or person. Clause 8 : Recommendations and guidance This clause provides the power to a relevant authority to make recommendations to a District Council in relation to any of its air quality functions. There is also a power given to the Department to issue guidance to a District Council or a relevant authority concerning a District Council's or a relevant authority's functions under this Act. Subsection (1) provides for recommendations to be made to a District Council by a relevant authority in connection with a review, an assessment or an action plan. The District Council must take the recommendation into account. Subsection (2) enables the Department to issue guidance to District Councils or relevant authorities in relation to their functions. Subsection (3) states that a District Council or relevant authority must have regard to any guidance issued by the Department. Clause 9: Supplemental provisions and miscellaneous amendments This clause applies the provisions of Schedule 1. Clause 10: Financial assistance This clause provides the power to the Department to make grants or loans to any body or person carrying out work in relation to reviews, assessments, the drawing up of action plans, and the management of air quality. The Department will determine the amounts paid, and the terms and conditions for any payments, or repayments. Subsection (1) provides for the Department to pay grants or loans for the purposes of specified work in relation to air quality. Subsection (2) states that the Department shall determine the amounts to be paid and the terms and conditions applying to the payments and repayments. Clause 11: Power of enforcing authorities and persons authorised by them This clause provides that an authorised person may exercise certain powers, which are specifically outlined in the legislation. Subsections (1)-(3) specify and define the powers of an authorised officer. Subsection (4) states that an authorised officer must give 7 days notice, and obtain permission or a warrant before entering residential premises. Subsection (5) states that an authorised person, who wishes to enter any premises, and where entry has been or is likely to be refused, must obtain a warrant. Subsection (6) provides for the making of regulations for procedures to be followed when taking samples. Subsection (7) provides that an individual's responses to questions under subsection (2) cannot be used as evidence against that individual. Subsection (8) provides that a person may withhold production of a document on the grounds of legal professional privilege. Subsection (9) gives effect to schedule 2. Subsection (10) provides the meaning of specific words used in this section and schedule 2. Subsection (11) disapplies section 98 of the Local Government Act (NI) 1972 (c.9) relating to District Councils' 'power to enter on land'. Clause 12: Offences This clause deals with offences by a person who obstructs an authorised person in the exercise of his duties. It also states that it is an offence for a person without reasonable excuse to fail to comply with any requirement imposed under section 11. Subsection (1) states that it is an offence to prevent an authorised person from carrying out his duties. Subsection (2) states that it is an offence to fail to comply with the requirements of section 11, or to refuse to provide facilities or information, or to prevent any other person from assisting an authorised person. Subsection (3) states that it is an offence for someone to pretend to be an authorised person. Subsection (4) specifies that a person guilty of an offence shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale. Subsection (5) defines the meaning of 'authorised person' and 'powers or duties'. Clause 13: Disclosure of information Sets out the arrangements for disclosing information obtained under the provisions of this Act. Subsection (1) allows for information to be exchanged between the Department and a relevant authority for the purposes of carrying out any of their functions. Subsection (2) provides that information shall not be given out if the Secretary of State decides that it is against the interests of national security. Subsection (3) provides that information obtained under this section cannot be passed on to another person if the information relates to a trade secret or is commercially confidential or is, in the Secretary of States opinion, contrary to the interests of national security. Subsection (4) authorises the disclosure of information to an authorised officer or to someone authorised by that officer to secure the information. Subsection (5) defines 'commercially confidential' information. Clause 14: Power to give effect to Community and other international obligations, etc. This clause provides for regulations to be made to modify provisions of this Act to enable the UK to give effect to any Community obligations or any international agreements. Clause 15: Offences by bodies corporate This clause applies, with the omission of certain words, the provisions of section 20(2) of the Interpretation Act (Northern Ireland) 1954 (c.33) relating to offences by a body corporate. Clause 16: Offences under this Act due to fault of others This clause states that were a person commits an offence and it is due to the action of another person, that other person may be charged and convicted of an offence regardless of whether proceedings are taken against the first person. Clause 17: Application to Crown This clause sets out the rights and obligations of the Crown including Crown premises, in relation to the provision of this Act. Clause 18: Regulations and directions This clause specifies those regulations, made under this Act, which are subject to affirmative resolution and those, which are subject to negative resolution, by the Assembly. It also outlines the requirements of a direction given by the Department. Subsection (1), (2) and (3) apply affirmative or negative resolution to specified regulations made under this Act. Subsection (4) states that any direction given under this Act must be in writing and may be amended or revoked by a subsequent direction. Subsection (5)-(7) provide for directions made under any provision of this Act to fulfil the purposes of implementing UK obligations under Community Treaties. They also specify that the Department must arrange for the appropriate publication of any variation or revocation of a direction and make copies available to the public. Clause 19: Interpretation This clause defines the meaning of specific words used in this Act. Clause 20: Short title This clause gives the title of the Act. The proposed legislation will be known as the Local Air Quality Management Act (Northern Ireland) 2002. Schedule 1: Air Quality: Supplemental Provisions The purpose of this Schedule is to set out detailed procedural instructions relating to consultation requirements, exchange of information, joint exercise of District Council functions, public access to information, and fixed penalty offences. Schedule 2: Supplemental provisions with respect to Powers of Entry The purpose of this Schedule is to set out detailed procedural instructions for the issue of warrants, obtaining information which may be admissible evidence, securing premises and compensation; all of which relate to powers of entry. FINANCIAL EFFECTS OF THE BILL 17. A number of financial implications could arise in relation to the implementation of the policy - mainly in the area of smoke control, transportation, and assistance to District Councils in connection with the review and assessment process. Costs cannot be quantified at this time, and are unlikely to be able to be estimated before completion of the review and assessment process being undertaken by the District Councils (scheduled for completion by December 2003). 18. A regulatory impact assessment is not required as the proposed legislation merely puts in place a mechanism for the delivery of air quality management, which in itself it does not require specific actions on the part of business. It is envisaged that under normal circumstances, current/proposed industrial pollution legislation would adequately control industrial pollution. Any additional costs arising under proposed industrial pollution legislation will be addressed under the Regulatory Impact Assessment for that legislation. 19. With regard to District Councils, the Department (in advance of the legislation) introduced a grants scheme to assist District Councils in reviewing and assessing local air quality to identify likely problem areas and necessary remedial measures. The package offers grants totalling £1M a year to support councils in this important work. EFFECTS ON EQUAL OPPORTUNITY 20. No evidence of adverse or differential impact in relation to any of the groups mentioned in section 75 of the Northern Ireland Act 1998 has been identified. HUMAN RIGHTS ISSUES 21 .The Bill is considered to be compatible with Human Rights obligations. EQUALITY IMPACT ASSESSMENT 22. Research undertaken on behalf of the Department has indicated that it is likely that policies to reduce air pollution concentrations in areas where they are highest could impact marginally more beneficially in the more deprived communities. Therefore, it is likely that the outcomes associated with the proposed legislation will result in a marginally positive Targeting Social Need (TSN) effect. SUMMARY OF THE REGULATORY APPRAISAL 23. The Bill has no implications in terms of cost to business, therefore a full Regulatory Impact Assessment is not considered necessary. SECRETARY OF STATE'S CONSENT 24. The Secretary of State has consented under section 10(3)(b) of the Northern Ireland Act 1998 to the Assembly considering this Bill. LEGISLATIVE COMPETENCE 25. The Minister for Environment has made the following statement under section 9 of the Northern Ireland Act 1998: "In my view the Local Air Quality Management Bill would be within the legislative competence of the Northern Ireland Assembly." ANNEX 8 LETTER FROM: 13 June 2002 26 District Councils Other Northern Ireland Environment Link The Local Air Quality Management 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 ANNEX 9 LETTER FROM: 13 June 2002 Following a presentation by officials on the Policy Memorandum on 16 May, the Committee requested clarification on a number of points. I would apologise for the delay in responding, but officials were absorbed in finalising preparations for introduction of the Bill in the Assembly. Responses to the points raised by the Committee are detailed below: (a) Exchange of information and regard to recommendations (i) The Committee asked how the exchange of information between Councils and Departments would operate in practice and what would happen where there was disagreement between a Council(s) and Department(s). In respect of the exchange of information, a communication flow already exists to support the voluntary review and assessment activities presently being undertaken. This will provide a firm foundation for continued direct exchange between these parties. The Bill places a statutory duty on District Councils and relevant authorities (which will be prescribed in forthcoming Regulations) to meet reasonable requests for information to assist in carrying out functions under the Bill. Relevant authorities may include NI departments and other public bodies and will be specified in Regulations that should be available for consultation in September. Obviously it is hoped that disagreements will be few, and that in the main these will be resolved by the respective parties. But, where disagreement arises between a Council and relevant authority about the contents of a proposed action plan, or revision of an action plan, the Bill provides that either party may refer the matter to the Department. In such circumstances, the action plan contents can only be finalised in accordance with the Department's decision. Any dispute which cannot be resolved bilaterally between Departments may be referred to the Executive for determination. (ii) The Committee sought clarification as to the meaning of Councils being required to 'have regard to' recommendations made by the Departments. In the proposed legislation District Councils will be required to have regard to recommendations made by 'relevant authorities'. Relevant authorities may include NI departments and public bodies and are to be specified in Regulation. The phrase 'have regard to' means that the Council will have to take into account the recommendations made by the prescribed relevant authorities. Case law indicates that the phrase means that the matter or matters in question (in this case recommendations made by the prescribed relevant authorities in relation to any particular air quality review, assessment or preparation or revision of an action plan) are to be considered and given such weight as the case suggests is suitable. However, the District Councils are not obliged to take them on board in the execution of any of these duties. Case law further indicates that these words are intended to be a guide for the body taking the decision, not a fetter. The phrase is often used in legislation and its interpretation does not appear to have caused significant problems. (iii) The Committee inquired as to the role of the Department in implementation of this legislation. Under the proposed legislation the Department will have a number of responsibilities. These are listed below:
The Department has also retained reserve powers to:
(b) Regulations under the proposed Bill (i) The Committee asked about the levels of fines proposed. Regulations made under the Bill may provide for any person contravening the provisions of the Regulations to be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale (currently £5000) or such lower level on that scale as may be prescribed in relation to the offence. No such Regulations are proposed in NI at present, however, if they were to be considered, due account would be taken of the level of fines in relation to similar offences elsewhere in the UK. (ii) The Committee inquired as to the levels of fines in GB. The Road Traffic (Vehicle Emissions) (Fixed Penalty) Regulations 1997 empower participating authorities in England, Scotland and Wales to issue fixed penalty notices to users of vehicles within their areas whose vehicles fail an emissions test or do not switch off the engine of a stationary vehicle. A penalty of £60 applies in relation to the former and a £20 penalty in respect of the latter offence. Both England and Scotland have consulted on proposed Regulations to replace these Regulations. The proposed Regulations alter the penalty applying to the failure of an emissions test to a maximum of £60 (allowing for a reduction to £30 or waiving of the penalty in certain circumstances). The proposed Regulations retain the £20 penalty in respect of an idling engine. (iii) The Committee queried what action could/would be taken against a Council or Department which fails to carry out their statutory duty. A number of actions can be taken against a Council which fails to carry out its statutory duty:-
The statute places mandatory duties on relevant authorities (which may include NI departments and will be prescribed by Regulations). Where a NI department fails to discharge its duty, the High Court may, on the application of a relevant authority (to be prescribed by Regulations), declare unlawful the act or omission. (c) Human Rights issues The Committee queried whether clarification of the proposed human rights has been obtained and the Human Rights Commission subsequently consulted. The proposed powers of entry have been set out in the Bill. These have been communicated to the Human Rights Commission along with an indication that the Department is content to receive further comments. A response is awaited. (d) Financial Implications (i) The Committee requested confirmation for the ongoing, secured funding referred to by the attending Officials. The Department has already provided a funding package offering grants totalling approximately £1M a year over a 3-year period (2001/02, 2002/03 and 2003/04) to support District Councils in this important work. It is expected that this funding will be available beyond the 3 years mentioned. Of course; while provision of the £1m is included in the Department's indicative baseline for 2003/4, both this and future years' allocations will be subject to future Budget outcomes. (ii) The Committee asked whether the Department had any figures to estimate ongoing costs to Councils. The Department does not have any indication of ongoing costs likely to be incurred by Councils. However, at a recent evaluation seminar on the first round of the local air quality management process organised by DEFRA, ongoing costs were not seen as an issue. (iii) The Committee queried whether the Department would fund the Council's costs in dealing with a serious unforeseen pollution incident or the costs of implementing measures within an Action Zone. The objective of the current local air quality grant scheme is to assist appropriate expenditure by district councils which is necessary to enable the councils to obtain the data required for review and assessment of local air quality, having regard to the guidance issued by the Department for that purpose. The methodologies used in the guidance are based upon the most up-to-date understanding of pollutant sources and methods of predicting future pollutant concentrations. Unforeseen pollution incidents are rare and not easily quantifiable and as such are not considered in the guidance for the purpose of review and assessment. Similarly such incidents would not be expected to form the basis of a Council's bid for grant when considering actions that may form part of an Air Quality Action Plan drawn up as part of the Council's duties under the Bill. (e) Guidance The Committee requested a copy of the updated GB guidance. The review of the guidance is at a very early stage, and not yet available for dissemination. A copy of the draft guidance will be sent to the Committee as soon as possible (consultation is scheduled for this winter). The updating is being co-ordinated by DEFRA with input from the devolved administrations, and the Department is ensuring that where appropriate the Northern Ireland position is reflected. Copies of current GB guidance (LAQM G1 to G4 (00) and LAQM TG1 to TG4 (00) ) used by Councils can be accessed at (LAQM Reports). (f) Consultation Exercise (i) As requested by the Committee a full copy of all Consultation responses and any associated key correspondence clarifying the concerns or the Department's response to the concerns raised is enclosed. (ii) The Committee asked how exactly the consultees' comments would be 'met through clarification of the proposals'. This was intended to convey that by clarifying the intention of the legislation, the points raised by these respondents should be met. The majority of respondents made clearly stated points/questions and in these cases the Department is satisfied that its response will have met these. Moreover, there will be opportunities to address any continuing areas of concern during the various stages of the Bill's passage. Dialogue with key stakeholders will be continuing, in relation to both the Bill and the Regulations prescribing 'relevant authorities'. (g) Policy Memorandum (i) The Committee asked whether the Executive had agreed the draft Policy Memorandum. The Executive agreed to introduction of the Bill at its meeting on 29 May. (ii) The Committee inquired as to when they might expect to receive a copy of the EFM and the Bill. Draft copies were sent to the Committee on 22 May. Following introduction of the Bill on 10 June, the Committee should have received final copies direct from the Assembly Offices. I trust that this information will be of help to the Committee. JENNIFER McCAY ANNEX 10 LOCAL AIR QUALITY MANAGEMENT BILL: SECOND STAGE The Minister of the Environment (Mr Nesbitt): I beg to move That the Second Stage of the Local Air Quality Management Bill (NIA 13/01) be agreed. 10.45 am The purpose of the Bill is to transpose the EC Directive on ambient air quality assessment and management. In addition, the proposed Bill will satisfy the commitments in the Executive's Programme for Government and 'Investing for Health'. It is to be in place by May 2003. The Bill also aims to deliver Northern Ireland's contribution to the targets in the air quality strategy for England, Scotland, Wales and Northern Ireland. That requires the establishment of a statutory scheme affecting the relevant parties. The Bill, therefore, places a range of statutory requirements on district councils and relevant authorities that will be prescribed by forthcoming Regulations. Those statutory requirements are dictated by the responsibilities in the control of the various agencies and by what is required to satisfy the Directive and deliver compliance with the air quality strategy objectives. The Bill requires that the Department draw up, on its own or in conjunction with other United Kingdom Administrations, an air quality strategy. It places a duty on district councils to conduct reviews and assessments of local air quality - a process that all 26 district councils are already voluntarily engaged in. The Bill provides for the declaration by district councils of air quality management areas and the establishment of action plans indicating the measures to be taken where there is a risk of air quality standards or objectives being exceeded. The Bill also requires relevant authorities to provide information and produce proposals to secure necessary improvements in air quality relating to the activities under their control. It will allow the Department of the Environment to provide financial assistance for air quality review assessment or management activities. Research has shown that poor air quality can exacerbate respiratory and heart conditions. For that reason, the production of the Bill is one of the Executive's 'Investing for Health' targets, and recent research, which included Belfast, indicated that poorer air quality is frequently found in socially deprived areas. The Bill is, therefore, likely to most significantly improve air quality for those who live and work in socially deprived areas. The Department of the Environment carried out a full public consultation in late 2001; approximately 500 organisations and individuals were consulted. They included the Committee for the Environment, MLAs, departmental statutory bodies, the relevant environmental bodies, district councils and other relevant organisations, including minority groups. The Department is content that the majority of the issues raised are satisfactorily dealt with by the legislation. Of the remaining issues, four were rejected - they related to the promotion of fuel types, which is not within the remit of the Bill - but the suggestions regarding enhanced public access to information were incorporated. The Bill will bring environmental and health benefits to people in Northern Ireland. Mr A Doherty: I have difficulty in breathing, even when the air is pure. Therefore, I know better than many how important it is to stop poisoning the air, not only so that we can enjoy life but also so that we can go on living. The alarming increase in the number of old people dying from respiratory problems cannot be ignored, and even more frightening is the ever-increasing number of young people suffering from asthma. The millions of tonnes of toxic chemicals that are pumped into the air daily may not be the only cause of this, but it would be criminally irresponsible not to admit that they must be a factor, as well as being the major cause of global warming and climate change. I approve of and support legislation that is aimed at improving and managing air quality. People have shown that, if left alone, they are not too interested in keeping the air clean, or are too greedy to do so. The name of the Local Air Quality Management Bill is a bit of a joke, but not much of a laugh. There is no such thing as local air. Our air is everybody's air and everybody's air is our air. Events at Chernobyl and Sellafield have taught us that. We cannot build a peace wall 20 miles high to keep clean air in and dirty air out. We must ensure that the air that we are responsible for is as clean as we can make it. The Bill makes district councils responsible for the air in their districts, which is OK if with that responsibility come the resources and powers to fulfil their duties effectively. I am worried about that. Clauses 3, 4 and 5 empower district councils to carry out reviews, to make assessments, to designate areas, to make further assessments, to prepare reports and action plans, to revise their action plans and to send the Department and each relevant authority a copy of their finally determined plans. To what end? Clause 6 will give the Department reserve powers to turn on its head everything a council has done. Time does not allow me to go into details, but they are set out in subsections (1) to (7). Subsection (7) is the sting in the tail, as it requires the district council to comply with any direction given to it under the legislation. That may seem a necessary safeguard to ensure compliance with international treaties and agreements, to ensure consistency of action and to deal with incompetent councils, if there are any. That is understandable, and it is even acceptable if carried out with some tact or finesse. However, there seems to be nothing in the legislation that allows for councils to appeal a decision or direction. In cross-cutting issues where two or more Departments have a difference of opinion about some requirements of the Bill, the relevant Ministers can put their heads together and reach a gentleperson's agreement. I may be wrong, but councils seem to have no facility for arguing or defending their actions if they feel that their action plans are reasonable and workable in their circumstances, but the Department thinks differently. Will the Minister reassure me that I am wrong in that assumption? Mr Ford: I welcome the broad provisions of the Bill, but I would like to pose one or two questions to the Minister on matters that do not appear to have been dealt with in full. First, clause 2(6) appears to suggest that the Department of the Environment will have authority over other Departments. Perhaps the Minister could explain how that authority will be exercised, if the interpretation is that the Department of the Environment will have the right to tell other Departments and authorities what to do. Clause 5(8) makes an interesting reference to a disagreement between a district council and a relevant authority, yet it does not spell out how that disagreement is defined. Reference is made earlier in clause 5 to the council's contribution towards any action plan and submissions from other relevant authorities, but it does not say that the council has the right to vet the decisions of other authorities. I suspect that other Departments will be reluctant for councils to tell them what to do. However, it talks about registering a disagreement and the matter then being adjudicated by the Department of the Environment. We might find that the combined activity of private motorists and the Department for Regional Development's Roads Service is a major source of air pollution. Will the council be authorised to tell the Roads Service what to do, in that case? I doubt if that will be acceptable. Will the Department of the Environment then have the power to step in, or will we see some kind of back-room deal between two Ministers? A gentleperson's agreement may be satisfactory, but if it is arrived at behind closed doors without the knowledge of the district council responsible for drawing up the action plan, that is not the transparent, open Government that we are supposed to be looking forward to. The Minister and his officials will have to address that in some detail now or at Committee Stage. I was also fascinated by some of the definitions. In clause 19 I made the amazing discovery that "air" means ambient air, which is perhaps simple enough until a few definitions later we discover that "ambient air" means outdoor air in the troposphere. That is news to me, since I was not sure that the entire troposphere came under the responsibility of the Northern Ireland Assembly. I presume that it refers to the part of the troposphere that is vertically above the land area of Northern Ireland. There seems to be a contradiction in the concept of promoting air quality, yet excluding open-air workplaces. We all know the problems that can arise - for example, the nuisance that can be caused to neighbours by quarrying operations. Is the Minister saying that anything that arises from an industrial process such as quarrying does not affect air quality? That issue should be addressed in detail. Since the House is so engrossed in the Bill, I do not wish to detain it for too long. Schedule 1 refers to consultation. It may be that that section of the Bill has been lifted from the equivalent Westminster legislation, but there is a particular issue in Northern Ireland that does not apply in Great Britain. There may be district councils, or perhaps county councils "whose district is contiguous to the council's district" - in the words of schedule 1(2)(b) - but which are under another jurisdiction in the form of the Republic of Ireland. Without going as far as Chernobyl, as Arthur Doherty did, if we are to do anything about tackling air quality we should at least look at whether there are North/South issues where air quality in the North can affect the Republic and vice versa. I trust that the Minister will be able to reassure us, and I promise him that we will have an interesting Committee Stage on that issue. Mr Nesbitt: Two Members have spoken on the Bill, which is a little more than Sir Reg Empey had on the Bills that he sponsored this morning. It is similar to the number of Members who spoke on a Statutory Rule that I brought to the House yesterday, and it is 100% more than what Dr Farren had yesterday, so we are getting a light load on the Second Stage debates. Perhaps I am filibustering until I get my papers organised. Mr Speaker: The Minister's honesty is commendable. Mr Nesbitt: I hope that it will be noted and underlined that my honesty pervades the Chamber, even when I am outside. I thank the two Members who commented. My officials will scrutinise Hansard, and if I overlook any aspects in the detail of what was said, they will write to the Members accordingly. Mr Ford said that there would be "an interesting Committee Stage". I look forward to constructive intercourse between the Committee, the Department and myself, as has been the case in the Committee Stages of other Bills. Mr Arthur Doherty referred to respiratory problems and local air. It is not only local air, it can be wider, which is a point that was made by Mr Ford when he referred to North/South issues and those aspects that we need to address, and district councils' designation of areas for action plans. Mr Doherty addressed a key point when he asked "To what end?" He said that the Department of the Environment will have the power to do what it wishes. His implication was that the Department would overturn those aspects negatively. I assure Mr Doherty that any direction that would come from the Department would be positive. It would be a direction to do those things that a council would be meant to be doing, if it were not doing them. That is important because we view this aspect of highlighting problems and areas of action plans as important. The environmental health departments of district councils are the key drivers of that aspect of air quality. 11.00 am (Madam Deputy Speaker [Ms Morrice] in the Chair) Mr Ford asked about authority over other Departments, and about that issue being addressed at Committee Stage. A requirement of the proposed legislation is that district councils will submit proposals for action plans, which have been mentioned. Departments are committed to air quality strategies. However, on a practical level, should any Department fail to fulfil its statutory duties, the matter will be resolved bilaterally between Ministers, or by the Executive in their final analysis. If a Department has failed to discharge its duty, the High Court - on the application of a relevant authority - could declare that to be unlawful as an act of omission. Relevant authorities will be prescribed in the forthcoming legislation. Consultation on the North/South issue needs to be addressed, as Mr Ford indicated. The problem is not so much trans-boundary, but more localised. However, I accept that the strategy in which the Department is involved is a UK-wide strategy. Air quality is not localised. As always, co-operation will be needed to deliver on that strategy. As part of the first stage of the review and reassessment process, councils that are adjacent to the border have considered, neighbouring sources of air pollution across the border. In all cases, that review has shown that those sources have no significant effect on local air quality and, therefore, do not need to be considered much further. I have covered the points raised by both Members. If any details have not been covered, Department of the Environment officials will scrupulously scrutinise Hansard, and those details will be provided. It is my firm belief that the Bill is necessary in order to transpose EU Directives, to satisfy the Executive's Programme for Government, and to invest in better health and ambience for the environment. However, it will also benefit the entire Northern Ireland public. Therefore, I commend the Bill to the House. Question put and agreed to. Resolved: That the Second Stage of the Local Air Quality Management Bill (NIA 13/01) be agreed. ANNEX 11 PRESENTATION BY: 20 June 2002 The Committee will already be familiar with the background to this proposed Bill but just to recap, it is required to enable: -
OVERVIEW This Bill establishes a mechanism for the review, assessment and management of air quality. It places a range of duties on the Department, District Councils, relevant authorities (a NI department, District Council or any other public body who are to be prescribed by Regulation, consultation on these Regulations is scheduled for September 2002). As requested I will now summarise the clauses in the Bill, indicating where applicable issues raised by respondents to the consultation and by the Environment Committee in their correspondence of 16 May. Clause 1: Implementation of Directive This clause states that the Bill contains provisions for implementing Council Directive 96/62 EC on ambient air quality assessment and management in Northern Ireland. Clause 2: Air Quality Strategy This clause requires the Department to prepare and publish a statement or strategy document setting out the air quality strategy for Northern Ireland. The strategy should contain policies for the assessment and management of air quality, which have been formulated to prevent or mitigate the effects of pollution. The strategy should also set out the European framework within which the strategy must work and include standards and objectives for specific pollutants and a timetable for their achievements. It should also set out the steps/measures, which the Executive is proposing to take. The strategy may be a joint strategy with other Administrations or a Northern Ireland regional one. The Royal Town Planning Institute, a respondent to the consultation Document suggested that there should be joint responsibility between Departments to draw up an Air Quality Strategy, however the responsibility has been placed on the Department as the body best placed with regard to technical and policy expertise. It will involve other relevant Departments in preparing an Air Quality Strategy. Subsection (7) requires the Department to consult relevant authorities when preparing or modifying the Strategy. Clause 3 : District Council reviews This clause places a responsibility on a District Council to carry out a review of the air quality, and the likely future quality of air, within its area. Where a review has been carried out an assessment should be made of whether the air quality standards and objectives are being achieved, within a specified period. The District Council will then be required to identify particular parts, within its area, where the standards are not likely to be achieved. Clause 4 : Designation of air quality management areas This clause provides that where a District Council carries out a review of its air quality, and finds that in a certain part of its area air quality standards and objectives are not being met, or are unlikely to be met within the time period, it must make an order designating that part of its area as an air quality management area. The District Council is required to publish the order. An order may also be varied or revoked by a further order. The Human Rights Commission in its reply to the consultation document suggested that there should be more emphasis on informing the public and making information more available. Subsection (3) of clause 4 helps to address issue by requiring a DC to publish a notice of an order, and advise the public where a copy may be inspected free of charge. Clause 5: Further provisions relating to designated areas This clause sets out the steps a District Council must take after it has made a designation order. Within a specified period of making the designation order, a District Council must supplement the information it has on the designated area by carrying out an assessment. The assessment of the air quality should cover the present and likely future air quality standards or objectives and whether they are being or are not likely to be achieved. The District Council will then be required to prepare a report of the findings of the assessment and prepare an action plan in relation to any powers exercised by the District Council. The action plan has to be sent to relevant authorities who must submit proposals in relation to any powers exercised by them. Where there is a disagreement between a relevant authority and a District Council the matter is referred to the Department for determination. The Road Transportation Unit, DRD, responded to the consultation document raising concern for early warnings of the need for an action plan- Clause 5 subsections 2&3 requires DCs to send to relevant authorities copies of specific papers such as orders by the Council, results of assessments and reports of any assessments. This together with paragraph 2 of Schedule 1 which provides for the exchange of information between DCs and relevant authorities would be expected to highlight early warnings of possible action being required by each party. Another respondent NILGA stated that it would be essential for public bodies to be required to fulfil their responsibilities improving air quality. Subsection (4) requires relevant authorities (which may include government departments) to submit proposals for the action plan to district councils. Under separate legislation (Air Quality Limit Values Regulations (NI) 2002) NI departments are already required to take the necessary measures to ensure EC limit values for a number of pollutants are not exceeded. Subsection (8) provides the Department with the role of arbitrator should there be a dispute between district councils and departments as to the content of an action plan. The DCs suggested this policing role when responding to the consultation document. The Environment Committee referred in its letter of 16 May 02, to how disagreements between district councils and government departments would be resolved. This aspect has been covered in the department's reply of 13 June 02. Clause 5-(8) refers specifically to this issue. Clause 6 : Reserve powers This clause confers on the Department the power to exercise a number of the air quality functions that should be undertaken by a District Council. It also gives the power to the Department to recoup the costs of any such exercise undertaken on a District Council's behalf. The Department has also a power to give direction to a District Council requiring it to carry out a specific action in relation to air quality. This clause also provides the power to the Department to give direction to a District Council in order to implement aspects of Community Treaties, or any international agreement relating to the quality of air. There is a requirement placed on the Department to publish any directions given, and to make copies available to the public. A District Council must comply with any such direction given to it. The Environment Committee inquired about the role of the Department in implementing this legislation, in it's letter of 16 May 02 .The Department's reply of 13 June 02 detailed these in full. In respect of this provision, clause 6 -(1) enables the Department to recoup reasonable costs for review and assessment work carried out on behalf of a district council. Clause 6- (3) allows the Department to issue directions to district councils and 6-(6) requires the department to publish a notice of the direction. This clause also covers the query from the Committee about what action could be taken against a council that fails to carryout its statutory duty. The Human Rights Commission in its reply to the consultation document suggested that there should be more emphasis on informing the public and making information more available. Clause 6(6) requires the department to publish a notice of the direction. Clause 7 : Regulations This clause provides the Department with the power to make regulations to implement the air quality strategy, and to implement UK obligations under the Community Treaties or other international obligations, or to make more detailed provision for the assessment or management of air quality. Before making any regulations the Department is required to consult widely. The Committee asked in its letter of 16 May 02 about levels of fines proposed under the Bill. This aspect was covered in the Department's reply of 13 June 02 but specifically refers to Clause 7 -(2)(o) of the Bill which provides for regulations prescribing the penalty amount. Clause 8 : Recommendations and guidance This clause provides the power to a relevant authority to make recommendations to a District Council in relation to any of its air quality functions. There is also a power given to the Department to issue guidance to a District Council or a relevant authority concerning a District Council's or a relevant authority's functions under this Act. The Committee in its letter of 16 May 02 requested a copy of the guidance which is referred to in Clause 8-(2). The Department's reply of 13 June 02 deals with this matter. The Committee's letter also inquired as to the meaning of 'have regard'. As indicated in the Department's response of 13 June this will require the Councils to take into account such recommendations but they will not be obliged to take them onboard. A substantial body of case law exists and the phrase is often used in legislation and its interpretation does not appear to have caused significant problems. Clause 9: Supplemental provisions and miscellaneous amendments This clause applies the provisions of Schedule 1. Clause 10: Financial assistance This clause provides the power to the Department to make grants or loans to any body or person carrying out work in relation to reviews, assessments, the drawing up of action plans, and the management of air quality. The Department will determine the amounts paid, and the terms and conditions for any payments, or repayments. ColeraineBC, AntrimBC, MagherafeltDC, Craigavon DC, OmaghDC, Castlereagh BC, Chief Environmental Health Officers Group, and NILGA, all responded to the consultation document requesting funding for work in relation to air quality assessment and management. This Clause enables the Department to provide the funding. The Environment Committee also raised this matter in its letter of 16 May 02 and this clause is mentioned in the Department's reply of 13 June 02. Clause 11: Power of enforcing authorities and persons authorised by them This clause provides that an authorised person may exercise certain powers, which are specifically outlined in the legislation. In its reply to the consultation document the Human Rights Commission expressed an interest in the proposed powers of entry. Copies of this clause together with schedule 2 (supplemental provisions with respect of powers of entry) have been sent to the HRC. These 'powers of entry' provisions are already in statute under other legislation, such as the Waste and Contaminated Land (NI) Order 1997 and the Industrial Pollution Control (NI) Order 1997. Clause 12: Offences This clause deals with offences by a person who obstructs an authorised person in the exercise of his duties. It also states that it is an offence for a person without reasonable excuse to fail to comply with any requirement imposed under section 11. The maximum fine is level 5 on the standard scale (currently £5000). Clause 13: Disclosure of information Sets out the arrangements for disclosing information obtained under the provisions of this Act. Clause 14: Power to give effect to Community and other international obligations, etc. This clause provides for regulations to be made to modify provisions of this Act to enable the UK to give effect to any Community obligations or any international agreements. Clause 15: Offences by bodies corporate This clause applies, with the omission of certain words, the provisions of section 20(2) of the Interpretation Act (Northern Ireland) 1954 (c.33) relating to offences by a body corporate. Clause 16: Offences under this Act due to fault of others This clause states that were a person commits an offence and it is due to the action of another person, that other person may be charged and convicted of an offence regardless of whether proceedings are taken against the first person. Clause 17: Application to Crown This clause sets out the rights and obligations of the Crown including Crown premises, in relation to the provision of this Act. The Crown cannot be held criminally liable but the High Court can declare unlawful any act or omission of the Crown which constitutes a contravention. The Committee in its letter of 16 May 02 inquired about action that could be taken against a Department which fails to carryout its statutory duty. This aspect is fully covered in the Department's reply and refers to this clause which provides that the High Court may on application by a relevant authority (to be prescribed) declare unlawful the act or omission. Clause 18: Regulations and directions This clause specifies those regulations, made under this Act, which are subject to affirmative resolution and those, which are subject to negative resolution by the Assembly. It also outlines the requirements of a direction given by the Department for the purpose of implementing any Community Treaty obligations. Clause 19: Interpretation This clause defines the meaning of specific words used in this Act. Clause 20: Short title This clause gives the title of the Act. The proposed legislation will be known as the Local Air Quality Management Act (Northern Ireland) 2002. Schedule 1: Air Quality: Supplemental Provisions The purpose of this Schedule is to set out detailed procedural instructions relating to consultation requirements, exchange of information, joint exercise of District Council functions, public access to information, and fixed penalty offences. In replying to the consultation document the Council for Nature Conservation referred to the need to ensure that there was an exchange of information between District Councils and the Department. Schedule I para. 2 provides for the exchange of information between a relevant authority and district councils for the purposes connected with carrying out its air quality functions. The Transportation Unit DRD referred in their reply to the consultation, to the possible need for new traffic regulations. Para 6. of schedule 1 amends Article 4 of the Road Traffic Regulation (NI) Order 1997 to enable this Bill to be taken into consideration. The Environment Committee also covered the exchange of information in it's letter of the 16 May 02 and information contained in the department's letter of 13 June 02 is covered in paragraph 2 of schedule 1 of the Bill. The Human Rights Commission in its reply to the consultation document suggested that there should be more emphasis on informing the public and making information more available. Schedule 1 paragraph 4 stipulates requirements in relation to public access to information about air quality. Schedule 2: Supplemental provisions with respect to Powers of Entry The purpose of this Schedule is to set out detailed procedural instructions for the issue of warrants, obtaining information which may be admissible evidence, securing premises and compensation; all of which relate to powers of entry. HELEN ANDERSON ANNEX 12 WRITTEN SUBMISSION BY: 17 June 2002 The Northern Ireland Human Rights Commission notes the introduction of the Bill. We contributed to the pre-legislative consultation and I am pleased to say that the Department accepted the points we made in relation to greater public accessibility of air quality information. I would add that our submission made it clear that we welcomed the overall thrust of the proposals for the Bill as consonant with human right standards in relation to environmental protection. We wish to draw the Committee's attention to the provisions relating to the power of entry. What is proposed is in line with existing powers and in view of the important public interest underlying the legislation we do not object to the power as such. We would like to see provision in section 11 or Schedule 2, or at least an indication of the Department's intention, to establish a code of practice for the exercise of the power. That code should provide, for example, that any person affected by the power of entry would be fully informed of the reasons for the entry and of their rights in the matter. (This might involve supplying of an information leaflet in plain language). The code should also make it very clear that any use of the power in the circumstances envisaged in Schedule 2, sub-paragraphs 2(2)(c) and (d), requires a reasonable effort to be made to contact the owner or occupier of the premises. We may be confident that entry on a warrant would never be used as a more convenient alternative to racing the property owner or occupier, but a strict reading of paragraph 2 merely requires the JP to be satisfied that the premises are unoccupied or, in urgent cases, that the occupier is absent. Forcible entry into premises typically engages two important European Convention articles (Article 8, on privacy rights, and Article 1 of Protocol 1, on property rights) and it is vital that those using the power, and those affected by it, are fully aware of the limited but compelling circumstances that can justify the power of entry. Thank you for considering these comments, which we have copied to the Speaker. We do not seek an opportunity to give oral evidence to the Committee but would be obliged if you could discuss the right-of-entry power when you come to consider the Bill. We have written separately to the Department in relation to this power, since it had not been covered in the initial consultation document. BRICE DICKSON ANNEX 13 WRITTEN SUBMISSION BY: 26 June 2002 Thank you for your letter dated 13 June 2002 regarding the Local air Quality Management Bill. The contents of the above Bill have been examined and considered and I confirm the Council wish to make no comment or amendments to the Bill. Trusting this is satisfactory. HUGH O'NEILL ANNEX 14 WRITTEN SUBMISSION BY: 1 July 2002 Strabane District Council welcomes the opportunity to consider and respond to the above paper. It welcomes the Northern Ireland Executive's commitment to implementing the EC Ambient Air Quality Assessment and Management. The Programme for Government states the need to "Develop a more joined up and strategic approach to policy making than Northern Ireland has had in the past." Strabane District Council urges that the Executive adopts this approach to tackling poor air quality and not just through isolated, limited, local air quality strategies. The Department of Enterprise, Trade and Investment announced its support on September 21st for a major cross-border gas infrastructure project. This project will make natural gas available to 75% of the population. This excludes Strabane and the rural west. Strabane District Council calls for the extension of the natural gas infrastructure to the Strabane district in response to the distressing findings of the 1999-2000 UK-wide Air Quality Review. The results show Strabane town to have: The highest concentration of smoke and sulphur dioxide in the UK. The winter mean smoke concentration in Strabane was 32 micrograms/cubic metre and the next highest result was 20 µg m-3 in Derry. Levels in Great Britain pale considerably in comparison, with the highest level, recorded in Bradford, at only 16 µg m-3. The highest concentration of black smoke in the UK for the winter months of 1999 - 2000. The UK average is 7.5 µg m-3. In relation to the natural gas network project, the Minister for Finance stated: "The full benefits of these pipelines will be seen for many years to come with inward investment, better health and a cleaner environment." It is important that the benefits to health of natural gas are enjoyed on an equal basis by all parts of Northern Ireland. This is all the more important, given the extremely poor health statistics for Strabane. The Investing for Health Consultation paper of November 2000 showed Strabane to have the second worst mortality ratio of the twenty six district councils. The document states a causal relationship between disadvantage and poor health. Disadvantaged households are more likely to use solid-fuel domestic heating systems, which is a major contributor to the poor air quality of Strabane. The Investing for Health Consultation paper includes "Promoting the development of a natural gas market" (page 53) in its Agenda for Change. It is important, therefore, that a strategic, joined-up approach to tackling poor air quality is adopted, part of which will be local air quality assessment and management. PADDY COSGROVE ANNEX 15 WRITTEN SUBMISSION BY: 2 July 2002 Thank you for the opportunity to provide further comment to the Pollution, Prevention and Control Bill. The Council for Nature Conservation and the Countryside has no further comments to make regarding this Bill. DR LUCINDA BLAKISTON HOUSTON ANNEX 16 WRITTEN SUBMISSION BY: 3 July 2002 The Bill places considerable responsibilities on District Councils who will have a key role in coordinating and managing actions taken to improve air quality. In particular, the proposals contained within the Bill will have significant implications for those locations where air quality objectives are exceeded and will impact on areas such as domestic heating policies, transportation, roads and planning. These areas are primarily the responsibility of the Public Bodies and Government departments and their cooperation and commitment to any Action Plan (clause 5) is vital to the council's activities in pursuit of achieving air quality standards. It is our opinion that a more binding obligation must be placed on these bodies to ensure that they meet their responsibilities in this respect. Furthermore, Clause 7 makes reference to funding for councils to cover the costs incurred in discharging the functions imposed by the Bill. This funding is considered essential to any future commitment the council give to the Air Quality Management Bill. S L COURTNEY ANNEX 17 WRITTEN SUBMISSION BY: 2 August 2002 Thank you for the opportunity to comment on the local Air Quality Management Bill. Ballymena Borough Council welcomes the Bill as a step in addressing the legislation deficit in Air Quality in Northern Ireland. However, we would have reservations regarding the effective functioning and accountability of all bodies representative within the partnerships. It is our concern that a lack of commitment from one or more partner may have a deferential effect on Air Quality Action Plan as a whole. It is hoped that the Environment and Heritage Service will have an influential role on all those concerned. DONNA CAREY ANNEX 18 WRITTEN SUBMISSION BY: 5 August 2002 Further to your letter dated 13th June 2002 on the above, I can advise that the matter was reported to the Ards Borough Council meeting in July 2002. As a result, the Council wishes to respond by welcoming the proposed legislation. However the Council would also wish to point out that as the review and assessment continues, and particularly if the declaration of an air quality management area is required, this will demand further resource commitment from the Council in terms of officer time. Furthermore as the provision of DoE grant assistance is optional given the proposed wording of clause 10, there is the potential for a future demand on Council financial resource if grants are not available when this is required. The Council would therefore wish to press the Department of The Environment to fully implement its duty under the Waste & Contaminated Land (NI) Order 1997 to assume responsibility for the Waste Disposal Licence control function as this will provide our officers with the additional time required to implement the Councils Air Quality Management Duties. Secondly, that the Department is required to ensure that grants or loans are made available to Councils at all times when reviews are taking place, and at a level which allows a District Council to fulfil its duties under the proposed legislation. I trust that these comments will be of use. GRAEME BANNISTER ANNEX 19 LETTER FROM: 12 September 2002 Since our letter of the 3rd December 2001 and your subsequent meeting with Noel Rice we have learned that the target date for the reduction of sulphur dioxide and particulates (PM 10) in the local air is 2005. One of the main sources of these pollutants arises from the use of solid fuel in houses. As already indicated the Housing Executive would like to work with the Department and local councils in improving air quality and our current heating policy will make a major contribution to this. Indeed when seeking Ministerial approval to phase out the use of solid fuel in the social housing stock to help meet energy efficiency targets we made the point that this would also help improve local air quality. Unfortunately at current funding levels it will take another 7-8 years before solid fuel is completely phased out in Housing Executive dwellings. In many council areas the replacement programme is unlikely to happen fast enough for the council to meet its air quality targets. Local councils could presumably use this legislation to try and force the Housing Executive to accelerate its replacement programme in certain areas. As appliances are replaced on the basis of age there are clearly health and safety risks for tenants associated with diverting funds away from replacing obsolete fires in one area to comply with air quality targets in another. Our programme of heating replacement without additional substantial funding will not meet the 2005 deadline in all areas. Furthermore, even if funds were available, there could be capacity problems within the heating industry in terms of completing such a large programme within such a short period of time. The Housing Executive currently has about 60,000 dwellings using solid fuel as their main source of heating. There are also about 60,000 private sector dwellings which rely on solid fuel as their main heat source and a further 61,500 private sector dwellings which have dual systems most of which will include coal. Clearly the issue of the use of solid fuel is not just an issue which affects the Housing Executive. The Housing Executive will obviously work with the DOE and local authorities but we would hope that both the DOE and the DOE Committee at the assembly will take into account the issues outlined above, particularly the point that our heating replacement programme will not meet the 2005 deadline. I have copied this letter for information to Mr John Simmons, DOE Committee Clerk for information. S CUDDY ANNEX 20 LETTER FROM 1 October 2002 On16 May 02, Officials made a presentation to the Environment Committee on the Local Air Quality Management Bill. During the presentation ongoing funding in relation to the Local Air Quality Grant Scheme was discussed. In response to the Committee's request for additional information, details on Scheme funding (to assist in reviewing and assessing local air quality) were provided to the Committee in Miss McCay's minute of 13 June 02. I am pleased to inform you that I am now in a position to provide the Committee with
Please note that an embargo has been placed on the press release until it is published on Thursday 3 October 02. Thank you for passing this information to Committee members. CORAL RITCHIE Annex A
ANNEX 21 SPEAKING NOTES FROM: 3 October 2002 I would like to briefly summarize the content of the above mentioned Bill, recap on previous actions, and to update the Committee on the discussions with the key stakeholders involved with the Bill. Overview This Bill will enable:-
Content of the Bill The Bill establishes a mechanism for the review, assessment and management of air quality. It places a range of duties on the Department, District Councils, relevant authorities (who may be a NI department, District Council or any other public body who are to be prescribed by Regulation). Consultation on these Regulations is scheduled for later this year. The Bill: (1) requires the Department of the Environment to prepare and publish a document setting out the air quality strategy for Northern Ireland; (2) requires each District Council to carry out a review and assessment of air quality within its area, and where air quality standards and objectives are not likely to be achieved, designate that part of its area as an air quality management area; (3) requires each District Council to prepare a report of the findings of the assessment and prepare an action plan in relation to any powers exercised by the District Council and send this to relevant authorities; (4) requires relevant authorities to submit proposals, in relation to any powers exercised by them, for inclusion in a composite action plan; (5) allows the Department of the Environment to act, and recoup costs, where a District Council fails to fulfil its requirements; (6) allows the Department of the Environment to direct a District Council to take a specific action in relation to air quality; (7) provides the Department of the Environment with the power to make regulations, following wide consultation, relating to air quality; (8) provides for a relevant authority to make recommendations to a District Council in relation to any of its air quality functions; (9) provides for the Department of the Environment to issue guidance to a District Council or a relevant authority concerning their respective functions under the Act; (10) provides the power to the Department to make grants or loans to any body or person in relation to air quality review, assessment and management; (11) details the powers of authorised persons; (12) creates an offence of obstruction or impersonation of an authorised person (maximum fine is level 5 on the standard scale, currently £5000); (13) sets out the rights and obligations of the Crown. The Crown cannot be held criminally liable but the High Court can declare unlawful any act or omission of the Crown which constitutes a contravention; (14) sets out detailed procedural instructions relating to consultation requirements, exchange of information, joint exercise of District Council functions, public access to information, and fixed penalty offences, the issue of warrants, obtaining information which may be admissible evidence, securing premises and compensation. Background of action on the Bill to date
The main issues highlighted during the meetings with the Environment Committee were: continued funding for District Councils, an appeal mechanism for District Councils and Crown immunity. Present Position
ANNEX 1 WRITTEN COMMENTS RECEIVED BY ENVIRONMENT COMMITTEE
ANNEX 2 POINTS RAISED BY KEY STAKEHOLDERS AT MEETINGS
LETTER FROM 12 September 2002 Further to the meeting with key stakeholders regarding the above held on 27 August 2002 at River House, I wish to inform you that Castlereagh Borough Council supports the implementation of the Bill and shall endeavour to fulfil its requirements. RICHARD W HARVEY (MR) LETTER FROM 30 August 2002 Further to our meeting of 28th please find attached a brief report presented to Council in August. The full Council ratified all its committee decisions on 27th. The report presented was fully supported and no further comments were made. I trust this meets your needs, however, if you require anything further, please do not hesitate to contact me. KIERAN DOHERTY 2.0 Local Air Quality Management Bill The Local Air Quality Management Bill was formally introduced to the NI Assembly on 10 June 2002. The Bill is currently being scrutinised by a committee and a report will be made to the Assembly in due course. The principle of the Bill follows the legislation enacted on the mainland some time ago. The purpose of the legislation is to set target air quality standards for various pollutants in the year 2005 and monitor existing air quality against these targets. In areas where targets are likely to be exceeded in 2005 these will be designated as "air quality management areas". You will be aware that Council through the Environmental Health Department have been involved in the review and assessment of air quality in the Borough for the last 2 years. Additionally a 2-year programme of qualitative air sampling has recently begun with the help of grant aid from DOE Environment & Heritage Service. This legislation will make this voluntary monitoring work a legal responsibility on all local authorities in Northern Ireland as it already is in England. The two pollutants likely to be of concern are SO2 from domestic coal burning affecting mostly Belfast and Londonderry and NO2 from road traffic. Road traffic is most likely to create a problem in areas with slow moving heavy traffic. Initial results tend to suggest Coleraine will not have a problem with either SO2 or NO2 . The mechanics of how the legislation will work in practice has yet to be agreed. Discussions are already taking place at officer level between the DOE and Council regarding the formal working relationships. In conclusion, this legislation is to be welcomed. It affords an opportunity for the Council and the DOE to work closely together to ensure that the air quality in Northern Ireland is maintained to the highest standard. There is however a resource implication in the implementation of this legislation. Grant aid has been available to assist with monitoring and assessment and it is envisaged that this assistance will be available for the next two years. 7.2 Local Air Quality Management Bill Consideration was given to information, as in the report, regarding the Local Air Quality Management Bill. Council is recommended to welcome this legislation. This would afford an opportunity Council and the Department of Environment work closely together to ensure that the air quality in the Province was maintained to the highest standard. |
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