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This Memorandum refers to the Planning Bill as amended at consideration stage in the Northern Ireland Assembly on 21 March 2011 (Bill 7/10) PLANNING BILLEXPLANATORY AND FINANCIAL MEMORANDUMINTRODUCTION1. This Explanatory and Financial Memorandum has been prepared by the Department of the Environment in order to assist the reader of the Bill and to help inform debate on it. It does not form part of the Bill and has not been endorsed by the Assembly. 2. The Memorandum needs to be read in conjunction with the Bill. It is not, and is not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause or Schedule does not seem to require an explanation or comment, none is given. BACKGROUND AND POLICY OBJECTIVES3. Following the restoration of the Northern Ireland Assembly in 2007 the Executive set new economic and social goals for the future of Northern Ireland. While land use planning has to balance complex environmental, social and economic issues the Executive has made it clear that its top priority is to contribute to, and encourage, economic growth. A modern, efficient and effective planning system is critical to achieving the Executive’s overall aim and in helping to deliver on its key priorities. 4. In November 2007 the Minister of the Environment announced a programme to reform and reshape the planning system in Northern Ireland. Professor Greg Lloyd, an expert on planning was subsequently appointed to provide the Minister with an independent expert opinion on the direction that planning reform would need to take to best achieve the Executive’s aims. Following consideration of his report and the publication of emerging proposals in October 2008, the Department, in July 2009, published a consultation paper “Reform of the Planning System in Northern Ireland: Your chance to influence change” which sought views on the proposed reforms. 5. The proposed reforms are intended to underpin the Executive’s commitment to deliver a fundamental overhaul of the planning system to enable it to play its part in delivering the Executive’s Programme for Government (PfG) priorities and, in particular, by contributing to growing a dynamic, innovative and sustainable economy. They are aimed at bringing about improvements in the planning system to ensure that it:
6. The reforms are comprehensive, impacting on every aspect of the planning system, including how development plans are drawn up, how development proposals and applications are managed and the way in which these functions are delivered. The key reform changes relate to the complete overhaul and redesign of the development plan and development management systems which aim to improve efficiency and effectiveness. Significant changes are also proposed in relation to planning appeals and enforcement. Overall the aim is to create a planning system which is quicker, clearer, more accessible and with resources better matched to priorities. 7. This Bill provides the legislative basis for these reforms and also gives effect to the Review of Public Administration (RPA) changes which will transfer the majority of functions and decision making responsibilities relating to local development planning, development management plus planning enforcement to district councils. This will make planning more locally accountable, giving local politicians the opportunity to shape the areas within which they are elected. Decision-making processes will be improved by bringing an enhanced understanding of the needs and aspirations of local communities. 8. The Bill therefore establishes a new framework for a reformed and transferred planning system which will be supported with a significant and comprehensive programme of subordinate legislation and guidance which will be subject to further detailed consultation exercises. CONSULTATION9. In order to fully inform the proposals put forward in the July 2009 consultation paper, the Department was involved in a number of different engagement activities, including a major conference in November 2007, attended by approximately 200 delegates and addressed by the Environment Minister. A questionnaire developed for the conference was posted on the Planning Service website for 10 weeks, with over 240 responses submitted and considered. 10. A series of meetings were held with internal and external stakeholders, including other government departments, the Planning Appeals Commission, representative bodies such as Community Places, Northern Ireland Environmental Link, the Construction Employers Federation, Institute of Directors, Confederation of British Industry, Northern Ireland Local Government Association and others. In addition to the significant media coverage associated with the planning reform consultation process, over 700 organisations and individuals were notified of the launch of the consultation paper and accompanying draft EQIA at a strategic level, partial regulatory impact assessment and rural proofing screening. The Department carried out a 12-week formal consultation exercise between July and October 2009. The consultation paper was widely circulated to local authorities, government departments and agencies, residents’ groups, section 75 groups, businesses and others. 11. In addition, the Department held 11 public consultation events across Northern Ireland in September 2009 attended by approximately 480 people with an independent report produced by the consultants who managed and facilitated the events. 12. A total of 264 responses were received from a wide range of interests including agents, architects, business and development, district councils, elected representatives, environment and heritage groups, individuals, resident community and voluntary groups. The representations were wide ranging from strong support for various proposals to strong opposition to others. A full consideration of all the responses received by the Department resulted in it reviewing and modifying several proposals put forward by the Department in the consultation paper. The government response and analysis to the consultation can be viewed on the Planning Service website at www.planningni.gov.uk. The responses to the draft EQIA at a strategic level were also considered as part of the policy finalisation process. A final EQIA at a strategic level was published at the same time as the government response to the consultation exercise. OPTIONS CONSIDERED13. The July 2009 consultation paper outlined the two key options considered. Option one was a do nothing option i.e. to leave existing development plan, development control and associated processes as they are with minimal change to allow the RPA decision to transfer responsibility for planning to local government. Option two was to bring forward a package of reforms for key elements of the planning system which will, among other things, improve the efficiency and effectiveness of planning processes. The full consultation paper can be viewed at: http://www.planningni.gov.uk/index/news/news_consultation/consultation_paper_final_200709_2.pdf. The Department considered option one would only perpetuate the perceived defects of the current system which impact on efficiency and effectiveness. It would not take the Department any nearer to achieving its aims and objectives, and as a consequence, there would be a risk that the planning system could have a negative impact on the Executive’s ability to meet its objectives in relation to growing the economy. Option two with its package of reform was the preferred option. OVERVIEWThe Bill consists of 255 clauses, 15 Parts and 7 Schedules. The Parts are: Part 1: Functions of Department of the Environment with respect to development of land. Part 2: Local Development Plans. Part 3: Planning Control. Part 4: Additional Planning Control. Part 5: Enforcement. Part 6: Compensation. Part 7: Purchase of estates in certain land affected by planning decisions. Part 8: Further provisions as to historic buildings. Part 9: The Planning Appeals Commission. Part 10: Assessment of Council’s performance or decision making. Part 11: Application of Act to Crown Land. Part 12: Correction of Errors. Part 13: Financial Provisions. Part 14: Miscellaneous and General Provisions. Part 15: Supplementary Schedules: 1. Simplified planning zones 2. Review of old mineral planning permission 3. Periodic review of mineral planning permissions 4. Amendments to the Land Development Values (Compensation) Act (NI) 1965 5. The Historic Buildings Council 6. Minor and consequential amendments 7. Repeals 14. Part 1: Functions of Department of the Environment with respect to development of land. This part maintains the general background authority for the Department to formulate and co-ordinate policy for securing the orderly and consistent development of land and the planning of that development. It also re-enacts a duty on the Department to prepare a Statement of Community Involvement. 15. Part 2: Local Development Plans. This part provides for the preparation of local development plans by district councils for their district; these will replace current Department of the Environment development plans. These local development plans will comprise two documents, a Plan Strategy and a Local Policies Plan which must be prepared in accordance with the relevant timetable and must take account of the Regional Development Strategy. Public participation in formulating local development plans and progress through to adoption will be facilitated through the Statement of Community Involvement and timetables agreed between the district council and the Department. This Part also makes general provision for the preparation, withdrawal, adoption and approval of local development plans (including joint plans) and their independent examination. The Department has powers of intervention and may by regulations make provision in connection with the exercise by any person of functions under this Part. 16. Part 3: Planning Control. This part re-enacts key provisions from the Planning ( Northern Ireland) Order 1991 (the 1991 Planning Order) which define development and set the framework for the processing and determination of applications for planning permission. A new development management approach is introduced which includes assigning different categories of development to a new hierarchy which in turn will determine the method by which applications will be processed. The majority of applications will be dealt with by district councils with the Department determining applications which are of regional significance either through direct submission or call in arrangements. 17. Developers proposing regionally significant or major developments will be required to engage in pre-application community consultation. In addition, district councils will be required to draw up schemes which delegate decision-making on local developments to officer level. Arrangements are put in place to deal with appeals from district council decisions and provisions re-enacted which deal with the duration of planning permission. New oversight powers will mean some of the actions taken by district councils will require confirmation by the Department before they can take effect. New provisions are introduced which set out arrangements for dealing with planning applications on land belonging to councils and development by councils. A new power has been taken to restrict the matters that can be raised at appeal. Parties to an appeal may not raise any matters that were not in front of the planning authority when it made its original decision. The only exceptions are when the matter could not have been raised at that time or when its not being raised was due to unforeseen circumstances 18. Part 4: Additional Planning Control. This part is subdivided into chapters on listed buildings and conservation areas, hazardous substances, trees, review of mineral permissions and advertisement controls. The bulk of these functions are re-enacted from the 1991 Planning Order and transferred to district councils, although some, for example, the listing of buildings of special architectural or historic interest, are retained by the Department. Arrangements are also put in place to allow applications to be called in by the Department for its determination. New oversight powers will mean some of the actions taken by councils will require confirmation by the Department before they can take effect. New provisions are introduced which set out arrangements for dealing with consent applications on land belonging to district councils and development by councils. 19. Part 5: Enforcement. This part deals with enforcement powers which may be invoked where development has been carried out without the requisite grant of planning permission or consent under Part 3 or 4 of the Bill or a condition attached to a planning permission or consent has been breached. Enforcement powers within the 1991 Planning Order are re-enacted and transferred to district councils who will be responsible for enforcement for all breaches of planning control. The Department, however, will retain certain powers e.g. to issue an enforcement notice or stop notice where, after consultation with the district council, it appears expedient to do so. All enforcement functions transferred to councils will be restricted to their council district. The Department’s powers will cover all district council areas of Northern Ireland. This part also introduces new powers for district councils to issue Fixed Penalty Notices for the offence of failure to comply with an enforcement notice or breach of condition notice. In addition several levels and scales of fines are increased. 20. Part 6: Compensation. This Part carries forward the compensation provisions contained in the Land Development Values (Compensation) Act (NI) 1965, The Planning (NI) Order 1972 and the Planning Reform (NI) Order 2006. The responsibility for certain compensation functions which previously fell to the Department is now transferred to district councils. These functions are:
The Department will continue to discharge some planning functions under the new Planning Bill. In such cases any orders made by the Department will be regarded as if they had been made by the relevant district council. This means any compensation liability arising from the Department’s decisions will fall to that district council. Provision is provided elsewhere in clause 227 to allow a government department to contribute to the compensation costs of a council if those costs were incurred by a council decision or order made in the interest of services provided by that government department. A new provision deals with compensation where a statutory consultee has failed to respond within a set period and a planning decision is subsequently revoked or modified. 21. Part 7: Purchase of estates in certain land affected by planning decisions. This part deals with purchase notices. These provisions carry forward provisions within the 1991 Order and enable a land owner, who claims their land is left without any reasonable beneficial use by virtue of a planning decision, to issue a purchase notice to seek to have the district council acquire it from them and be paid compensation as on a compulsory acquisition. 22. Part 8: Further provisions as to historic buildings. This part re-enacts powers within the 1991 Planning Order for the continuance of the Historic Buildings Council, for the making of grants by the Department towards the maintenance and repair of listed buildings and the acquisition of listed buildings. 23. Part 9: The Planning Appeals Commission (PAC). This part re-enacts existing powers within the 1991 Planning Order which provide for the continuance and procedures of the PAC which is an independent appellate body established under statute to deal with a wide range of land use planning issues and related matters. New powers will make it possible for the Planning Appeals Commission to make an award of costs to parties to an appeal who have been put to unnecessary expense by the unreasonable behaviour of another party to the appeal. Parties will be expected to come to an agreement between themselves, but disagreements will be referred to the taxing master of the High Court 24. Part 10: Assessment of Council’s performance or decision making. This part introduces new provisions for the Department (or other appointed person(s)) to undertake audits or assessments in respect of the planning functions that will transfer to district councils. It also includes powers about the reporting of the audits or assessments. 25. Part 11: Application of Act to Crown Land. Part 11 re-enacts provisions within the 1991 Planning Order which apply planning legislation to the Crown subject to certain exceptions (notably enforcement powers). New powers are introduced to deal with urgent Crown development applications. 26. Part 12: Correction of Errors. Part 12 re-enacts provision from the Planning Reform (NI) Order 2006 to correct errors in decision documents including omissions. The provisions have been amended to enable the district council to correct errors, which are minor and / or typographical, in planning decision documents without the consent of the applicant / landowner. 27. Part 13: Financial Provisions. This part deals with financial provisions and re-enacts powers for the payment of fees and charges and as well as new specific powers to charge multiple fees for retrospective planning applications. Powers for the Department to pay grants for research and bursaries to bodies providing assistance in relation to certain development proposals are also re-enacted from the 1991 Planning Order. New powers are introduced to allow statutory undertakers or other councils to contribute to a council’s costs when carrying out specified functions under the Bill. Further new powers to allow government departments to contribute to compensation costs of a council if those costs were incurred in the interests of services provided by that department. 28. Part 14 deals with a number of miscellaneous and general provisions including the introduction of powers to review the Planning Act and also new powers for persons or bodies which are required to be consulted in the determination of applications for planning permission, approval and consents to respond to consultation requests within a specified timeframe. This part also covers the re-enactment of powers relating to the application of the Bill in special cases, for example, minerals development. 29. Further miscellaneous powers are re-enacted from the 1991 Planning Order, amended where necessary to reflect the proposed two-tier planning system. These include, inquiry powers - including powers in relation to the determination of applications which raise national security or security of premises issues, powers for rights of entry, powers relating to the service of notices and documents (electronically), powers relating to information as to estates in land including Crown land, planning register powers, powers to appoint advisory bodies or committees, powers relating to the time limit for certain summary offences under this Bill, powers relating to registration of matters in the Statutory Charges Register and powers to make regulations and orders. 30. Part 15 is Supplementary and covers the interpretation, further provision, minor and consequential amendments, repeals, commencement provisions and the short title. COMMENTARY ON CLAUSESA commentary on the provisions follows below. Comments are not given where the wording is self-explanatory. Part 1: Functions of Department with respect to development of land. Clause 1: General functions of Department of the Environment with respect to development of land This clause maintains the Department’s duty to formulate and co-ordinate planning policy which must be in general conformity with the Regional Development Strategy. A statutory duty is imposed on the Department in exercising these functions to do so with the objective of furthering sustainable development and promoting or improving well-being. This clause also provides for the Department to continue to undertake such surveys or studies as it considers necessary. Clause 2: Preparation of statement of community involvement by Department This clause maintains the requirement for the Department to produce a statement of its policy for involving the community in its development control functions. The Department must publish its statement within one year of the section coming into operation. Part 2: Local Development Plans. Clause 3: Survey of district This clause requires a district council to keep under review matters which are likely to affect the development of its district or the planning of that development. A district council may also keep matters in any neighbouring district under review, to the extent that those matters might affect the area of the district council, and in doing so they must consult the district council for the neighbouring district concerned. Clause 4: Statement of Community Involvement This clause defines a district council’s statement of community involvement as a statement of its policy for involving interested parties in matters relating to the development in its district. It requires the district council and the Department to attempt to agree the terms of the statement and provides a power of direction for the Department where agreement is not possible. This statement will apply to the preparation and revision of a local development plan and to the exercise of the district council’s functions in relation to development control. Clause 5: Sustainable development This clause imposes a statutory duty on any person or body who exercises any function in relation to local development plans to do so with the objective of furthering sustainable development. In doing so they are required to take account of policies and guidance issued by the Office of the First Minister and Deputy First Minister, the Department of the Environment and the Department for Regional Development. Clause 6: Local development plan This clause sets out the definition of a local development plan and clarifies the position in relation to potential conflicts between local development plan policies; the conflict must always be resolved in favour of the policy contained in the last development plan document to be adopted. It also confirms in law the status of a development plan in the determination of planning decisions. Where regard is to be had to the local development plan, the determination must be in accordance with the plan unless material considerations indicate otherwise. Clause 7: Preparation of Timetable This clause places a requirement on the district council to prepare and keep under review a timetable for the preparation and adoption of its local development plan. The district council must agree the timetable with the Department, however if the timetable cannot be agreed then the Department may direct that the timetable is in the terms specified in the direction. Clauses 8 and 9: Plan Strategy and Local Policies Plan Clauses 8 and 9 impose a statutory duty on the district council to prepare a plan strategy and a local policies plan. These documents taken together constitute a local development plan. The local development plan must set out the district council’s objectives and policies in relation to the development and use of land in its district. The district council must take account of the matters listed in these clauses, including the Regional Development Strategy and must carry out a sustainability appraisal for the proposals in each document. The Department may prescribe the form and content of both the plan strategy and the local policies plan. Clause 10: Independent examination This clause requires the district council to submit its plan strategy and local policies plan to the Department for independent examination and makes provision for the Department to cause an independent examination to be carried out by the PAC or a person appointed by the Department. The Department must not appoint an examiner other that the PAC unless it has regard to the district council’s timetable and considers it expedient to do so. The purpose of the examination will be to determine whether the plan strategy or local policies plan is sound and whether it satisfies the requirements relating to its preparation. Any person who makes representations seeking a change to the plan strategy or local policies plan has a right, if they so request, to appear in person at the examination. After completion of the independent examination, the person appointed to carry out the examination must make recommendations on the plan strategy or local policies plan and give reasons for those recommendations. Clause 11: Withdrawal of development plan documents This clause enables a district council to withdraw its plan strategy or local policies plan at anytime before it submits it to the Department for independent examination. However, if either of these documents has been submitted for independent examination, it can only be withdrawn by direction of the Department. Clause 12: Adoption This clause requires the Department to consider the recommendations of the independent examination and provides a power of direction for the Department to undertake one of three options at this stage. It can direct the district council to adopt the development plan document as originally prepared; adopt the document with such modifications as may be specified in the direction or direct the district council to withdraw the development plan document. The district council must comply with the direction within such time as may be prescribed and adopt the plan strategy or local policies plan by resolution of the council as directed. Clause 13: Review of local development plan This clause requires the district council to carry out a review of its development plan at such times as the Department may prescribe and to report to the Department on the findings of the review. Clause 14: Revision of plan strategy or local policies plan This clause empowers a district council to revise a plan strategy or local policies plan at any time (after adoption). If a review under clause 13 indicates that they should do so, or they are directed to do so by the Department, then they must carry out a revision. Revisions to a plan strategy or local policies plan must comply with the same requirements as those which apply to the preparation of a plan strategy or local policies plan. Clause 15: Intervention by Department This clause allows the Department, if it thinks that a plan strategy or local policies plan is unsatisfactory, to direct a district council to modify the plan strategy or local policies plan at any time before it is adopted. The district council must comply with the direction. Clause 16: Department’s default powers This clause contains default powers for the Department to prepare or revise a district council’s plan strategy or local policies plan if it thinks the district council is failing properly to carry out these functions itself. The district council must reimburse the Department for any expenditure it incurs in exercising these powers. Clause 17: Joint plans This clause enables two or more district councils to jointly prepare (i) a joint plan strategy or (ii) a joint plan strategy and a joint local policies plan. It also sets out the arrangements which are to apply in such a case. If any district council withdraws from an agreement to prepare (i) a joint plan strategy or (ii) a joint plan strategy and a joint local policies plan, it will be possible for the remaining district council(s) to continue with the preparation of the plan strategy or local policies plan if it satisfies the conditions required for it to be treated as a "corresponding document". Clause 18: Power of Department to direct councils to prepare joint plans This clause enables the Department to direct two or more district councils to prepare (i) a joint plan strategy or (ii) a joint plan strategy and a joint local policies plan. In the instance of the Department issuing such a direction no district council may withdraw from the joint working and the preparation of (i) a joint plan strategy or (ii) a joint plan strategy and a joint local policies plan must continue to its natural conclusion. Clause 19: Exclusion of certain representations This clause allows the district council, PAC or person appointed by the Department to disregard representations in relation to a plan strategy or local policies plan if the representations are made in respect of anything that is done or proposed under certain orders or schemes made under the New Towns Act (Northern Ireland) 1965; the Housing (Northern Ireland) Order 1981; Part 7 of the Planning (Northern Ireland) Order 1991; the Roads (Northern Ireland) Order 1993; or a simplified planning zone scheme or an enterprise zone scheme under this Bill. These Orders and this Bill set out specific procedures for considering the representations and objections concerned. Clause 20: Guidance This clause requires that any body in carrying out any function under this part must have regard to any relevant guidance issue by the Department, Department for Regional Development or Office of First Minister and Deputy First Minister. Clause 21: Annual monitoring report This clause requires district councils to report annually to the Department on whether the policies in the plan strategy or local policies plan are being achieved. The clause also provides powers for the Department to make regulations prescribing what information an annual report must contain, the period it must cover, when it must be made and the form it must take. Clause 22: Regulations This clause gives the Department the power to make regulations in connection with the exercise by any person of local development plan functions. Part 3: Planning Control. Clause 23: Meaning of “development” This clause carries forward the broad definition of the meaning of development and clarifies what is deemed to be included under the term, “building operations”. It also lists the operations or uses of land which, for the purposes of the Bill, do not involve development of land. An amendment is included to exclude (for certain buildings specified by direction) structural alteration consisting of partial demolition from the definition of development. Clause 24: Development requiring planning permission This clause maintains the requirement for planning permission to be sought for developing land. Permission is not required to return to a former land use after planning permission which is time bound expires. Development orders can grant planning permission without applications being required. Enforcement notices carry implicit permission for the use of the land for any purpose it could have been legally used for if the development which is being enforcement against had not been carried out. Clause 25: Hierarchy of Developments A new hierarchy of developments is defined and the Department can make regulations as to the classes of development which fall into either the major developments or local developments categories. The Department can require a specific application which would normally be a local development to be dealt with as if it is a major development. Clause 26: Development’s jurisdiction in relation to developments of regional significance This clause allows the Department to make regulations as to which applications falling within the major developments category should be submitted directly to it. Developers must approach the Department if the proposed development falls above prescribed thresholds and the Department will decide if the application is regionally significant or involves a substantial departure from the development plan, and is to be dealt with by it instead of the district council. An exception is made for urgent development by the Crown where application can be made directly to the Department. Applications under this clause follow the process similar to that previously used for Article 31 applications under the 1991 Planning Order, with the option for a public inquiry to be held by the PAC or a person appointed by the Department. If an application raises national security or security of premises issues, an inquiry route must be followed. The decision of the Department is final for these applications. Clause 27: Pre-application community consultation Obligations are placed on the developer to consult the community in advance of submitting an application if the development falls within the major category. This includes those major developments which the Department will determine because they are of regional significance. The minimum period of consultation is 12 weeks, and regulations will prescribe the minimum requirements for the developer. Additional requirements may be placed on the consultation arrangements for a particular development if the district council or Department considers it appropriate. Clause 28: Pre-application community consultation report After the community consultation in clause 27, a report must be produced and this is to be submitted with the application. Regulations can be made as to what this should contain. Clause 29: Call in of applications, etc., to Department This allows the Department to direct that certain applications (including those where the Secretary of State or the Department of Justice have certified that an application raises national security or security of premises issues) be referred to it instead of being dealt with by the district council. It covers applications which would not be over the thresholds specified in clause 26. The process for determination is then the same as for the regionally significant developments of that clause, with the option for a public inquiry. An inquiry route must be followed if an application raises national security or security of premises issues. The decision of the Department is final for these applications. Clause 30: Pre-determination hearings The Department can require the district council through subordinate legislation to provide the opportunity for the applicant to have a hearing before the district council, as part of the application process, for certain types of applications. The procedures for the hearings will be decided by the district council concerned, and it will decide on the parties which will have a right to attend the hearing. Clause 31: Local developments: schemes of delegation This clause requires each district council to prepare a scheme of officer delegation, stating the application types were they will allow the decision to be taken by one planning officer rather than the council. The scheme must be kept under regular review. The decision will have the same effect as one taken by the council. In individual cases the district council will be able to decide that an application which would normally fall within this scheme, be determined by the council. Clause 32: Development orders The Department must make a development order stating the types of development which are granted planning permission and those for which permission must be applied for to the district council or Department. The grant of permission can include permission with conditions if necessary. In the case of permitted development, the district council and Department will have the power to direct in relation to a particular case or area of land that the permission granted by the order does not apply, and an application must be made. Clause 33: Simplified planning zones This clause lays the basis for simplified planning zones by defining them and by prescribing their content and effect. The effect of a simplified planning zone is to grant planning permission for development specified in the scheme or for development of any specified class. Clause 34: Making and alteration of simplified planning zone schemes This clause enables a district council to make or alter a simplified planning zone scheme at any time in any part of its area. The exception is where a scheme has been approved by the Department rather than adopted by the district council. In such cases, the consent of the Department is required before a scheme may be altered by the relevant district council. In making or altering a simplified planning zone scheme district councils must take account of the regional development strategy, any guidance issued by the Department and any other matters either prescribed in regulations or contained in a direction given by the Department. Clause 35: Simplified planning zone schemes: conditions and limitations on planning permission This clause describes the types of conditions and limitations which may be placed on planning permission specified in a simplified planning zone scheme. It also covers the effects of a simplified planning zone on development other than that for which permission has been granted under the scheme. Clause 36: Duration of simplified planning zone scheme This clause provides that a simplified planning zone scheme shall last for a period of ten years from the date when it was adopted by the district council or approved by the Department. Upon expiry of the scheme, the planning permission granted by the scheme shall no longer have effect except where development authorised by it has already been commenced. Clause 37: Alteration of simplified planning zone scheme This clause sets out the effect of alterations to an existing simplified planning zone scheme. Such alterations range from the inclusion of additional land in the scheme to the exclusion of land previously included in the scheme and the withdrawal of planning permission. Clause 38: Exclusion of certain descriptions of land or development This clause provides that a number of specified types of land or development may not be included in a simplified planning zone. These include land designated as a National Park, land designated as an area of outstanding natural beauty, land declared to be an area of special scientific interest and land declared to be a national nature reserve. The Department also has the power to make an order preventing a simplified planning zone from granting planning permission in relation to certain specified areas of land or development of a specified description. Clause 39: Grant of planning permission in enterprise zones This clause declares the effect of an enterprise zone designation in planning terms. It also describes the effect where modifications to an existing scheme are made. Planning permission granted under an enterprise zone scheme may be withdrawn in relation to certain developments where a direction to that effect is made by the Department. Clause 40: Form and content of applications The format of applications for planning permission is governed by this clause. A development order may specify information and documents which must accompany an application and the form and content of it. The provisions of the order can cover applications for any consent, agreement or approval required by this Bill. This clause requires certain applications for planning permission and consent to be accompanied by a statement about the design principles and concepts that have been applied to the development and a statement about how issues relating to access to the development have been dealt with. Powers are also provided to enable the applications to which this is intended to apply to be prescribed in subordinate legislation. Clause 41: Notice, etc., of applications for planning permission The publicity requirements for applications previously contained in the 1991 Planning Order have been amended. Instead of replicating the previous provisions, this clause reflects the situation in England, Wales and Scotland, where the power to specify the publicity requirements is contained in subordinate legislation. This will allow the requirements to be regularly reviewed to keep up to date with changing media. Clause 42: Notification of applications to certain persons This clause carries forward the requirement for one of four certificates to be submitted with each application to satisfy the district council or Department that the owner has consented to or is aware of the application for development of their land. It covers land held in tenancy, and makes it an offence to issue a false certificate. The form of these certificates can be prescribed by development order. Clause 43: Notice requiring planning application to be made The district council may serve a notice on an owner or occupier requiring them to apply for planning permission for development which has been carried out without this having been granted in advance. The notice must be served within 5 years of the date upon which the development was begun. It is an offence not to comply with this in the time specified within the notice. Provisions are included for a change of ownership and withdrawal of notices. Clause 44: Appeal against notice under section 43 The notices served under clause 43 can be appealed, and the three grounds for this are set out in this clause. Appeals are made to the PAC and the appellant has the opportunity to appear before and be heard by the Commission, as does the district council. Clause 45: Determination of planning applications The procedure for determining a planning application requires the district council or the Department to have regard to the local development plan and any other material considerations. Representations made must be taken into account when determining the application. Clauses 46 to 49: Power to decline to determine subsequent or overlapping applications These clauses clarify and expand the cases where a district council or the Department may decline to determine subsequent, repeat or overlapping applications. Existing powers within the 1991 order are expanded to allow district councils to decline to determine a repeat application where the PAC has refused a similar deemed planning application within the last 2 years. District councils may also decline to determine overlapping applications made on the same day as a similar application and where similar applications are under consideration by the PAC. Clause 50: Duty to decline to determine application where section 27 not complied with If the pre-application community consultation requirements in clause 27 have not been complied with, the district council or Department must decline to determine the application. The district council or Department can request additional information in order to decide whether to decline the application. Clause 51: Assessment of environmental effects Regulations may be made by the Department requiring the environment effects of development to be a consideration when determining a planning application. This allows the EU requirements to be exceeded in Northern Ireland legislation, as is the case in England, Wales and Scotland. Clause 52: Conditional grant of planning permission Planning permission can be granted by the district council or Department with conditions. These can relate to regulation of the land use, or restoration of the land at the end of a specified period of time. Clause 53: Power to impose aftercare conditions on grant of mineral planning permission The power to impose aftercare conditions is made available to district councils and the Department to ensure mineral sites are restored to the required standard once development has finished. Clause 54: Permission to develop land without compliance with conditions previously attached A person who has been granted planning permission with conditions can apply under this clause to have them removed, provided the time has not expired on the planning permission. The form and content of applications will be set out in the development order. The district council or Department can amend or replace the conditions or remove them completely if it considers appropriate. Clause 55: Planning permission for development already carried out This clause allows the district council or Department to grant planning permission retrospectively on application. This can cover development which has no planning permission or which did not comply with conditions attached to a permission, including a time condition. Clause 56: Directions etc. as to method of dealing with applications The Department may make a development order to specify how applications are to be dealt with. It can direct that the district council is restricted in its power to grant permission for some developments, and require it to consider conditions suggested by the Department before granting permission on an application. A development order may require district councils and the Department to consult specified authorities or persons before determining applications. A development order can also specify who applications need to be sent to under the Bill, and who should in turn be sent copies. Clause 57: Effect of planning permission This provision states that once planning permission is granted it has effect for the benefit of the land and of anyone who has an interest in the land at the time. If the permission includes the erection of a building, it can specify the use to which this building should be put. If the permission does not specify a use, then it is assumed to be the use associated with the purpose for which the building was designed. Clause 58: Appeals If an application made to a district council is refused or granted subject to conditions the applicant may appeal to the PAC. The previous time limit for lodging an appeal is reduced from 6 months to 4 or such other period as may be prescribed by development order. If the applicant or district council wish, they may appear before and be heard by the Commission. Clause 59: Matters which may be raised in an appeal under section 58 A party to the proceedings of an appeal under section 58 will not be able to raise any matter that was not in front of the council or the Department when it made its original decision. The only exceptions will be if the party can demonstrate, to the satisfaction of the Planning Appeals Commission, that the matter could not have been raised before that time or that its not being raised was due to exceptional circumstances. Clause 60: Appeal against failure to take planning decision An applicant may ask the PAC to determine their planning application if a district council has not done so within a specified or agreed time (a “non determination appeal”). Clause 61: Duration of planning permission Every planning permission granted or deemed to be granted, will continue to be subject to the condition that the development must begin within 5 years of the date on which permission is granted (or such other period as considered appropriate by the Department or district council which granted the permission). Clause 62: Duration of outline planning permission Outline planning permission establishes for the applicant whether a proposal is acceptable in principle before embarking on the preparation of detailed plans (“reserved matters”). Unless provided otherwise reserved matters must be submitted for approval within 3 years of the grant of outline planning permission and development must be begun within 5 years of the grant of outline permission or 2 years from the final approval of reserved matters. Clause 63: Provisions supplementary to sections 61 and 62 This clause includes ancillary provisions required for the working of clauses 61 and 62 above. These include defining planning authority as a district council, the Department, the PAC (when planning permission is granted on foot of an enforcement appeal) and the Department of Enterprise Trade and Investment when planning permission is deemed to be granted under Schedule 8 of the Electricity (NI) Order 1992 (NI 1). Those operations which establish the time of commencement of development are also defined. Clause 64: Termination of planning permission by reference to time limit This clause allows a district council to issue a “completion notice” to require a development which has a time bound planning permission, and which has been begun, to be completed. The district council must give at least one year for the completion. Notices can be withdrawn by the district council if appropriate. Clause 65: Effect of completion notice Completion notices issued by the district council under clause 64 must be confirmed by the Department before they take effect. The person on whom it is served can request a hearing before the PAC, as can the district council. Once it takes effect the planning permission expires at the end of the period allowed for the development’s completion. Clause 66: Power of Department to serve completion notices This allows the Department to issue completion notices which have the same effect as those issued by the district council. It must consult the district council before doing so. Clause 67: Power to make non-material changes to planning permission District councils may make a change to a planning permission already issued on application. The change must not have any material effect on the permission, and it includes the power to amend or remove conditions or impose new ones. Clause 68: Revocation or modification of planning permission by council This clause allows a district council to revoke or modify any planning permission, provided the operations have not been completed or change of use has not yet occurred. Clause 69: Aftercare conditions imposed on revocation or modification of mineral planning permission This clause permits a district council to impose aftercare conditions where a mineral planning permission has been modified or revoked via an order served under clause 68. Clause 70: Procedure for section 68 orders: opposed cases This clause requires that an opposed modification or revocation order served under clause 68 by a district council must be confirmed by the Department before it can take effect. The person on whom it is served can request a hearing before the PAC, as can the district council. The Department may confirm an order with or without modification. Clause 71: Procedure for section 68 orders: unopposed cases This clause allows for an expedited procedure for clause 68 cases in that the confirmation of the Department is not required. Clause 72: Revocation or modification of planning permission by the Department This gives the power for the Department to revoke or modify planning permission itself, after consulting the district council. The district council has the opportunity to request a hearing prior to its issue. The notice has the same effect as if it were issued by the district council, and applies to mineral permissions. Clause 73: Orders requiring discontinuance of use of alteration or removal of buildings or works The district council can issue an order requiring a particular land use to stop or require buildings to be removed or altered. The NI Housing Executive has a duty to house anyone whose place of residence is displaced if there is no reasonable alternative. Clause 74: Confirmation by Department of section 73 orders The Department must confirm orders issued by the district council in clause 73 before they take effect. They may modify it before they confirm it. Notification requirements for the district council are contained in this clause, which take place at the same time as the notice is submitted to the Department for approval. The person on whom the notice is served has the opportunity to appear before and be heard by the PAC. Clause 75: Power of Department to make section 73 orders This allows the Department to issue an order under clause 73 instead of the district council, and it has the same effect. It must first consult the district council. Clause 76: Planning agreements This clause enables any person who has an estate in land to enter into a planning agreement with either the district council or the Department (whichever is the relevant authority). A planning agreement may facilitate or restrict the development or use of the land in any specified way, require operations or activities to be carried out, or require the land to be used in any specified way. An agreement may also require a sum or sums to be paid to the relevant authority or to a Northern Ireland department on a specified date or dates or periodically. The relevant authority has the power to enforce a planning agreement by entering the land and carrying out the operations itself. Any expenses incurred through doing so are recoverable from the person or persons against whom the agreement is enforceable. Clause 77: Modification and discharge of planning agreements This clause provides that a planning agreement may not be modified or discharged except by agreement between the relevant authority and the person or persons against whom the agreement is enforceable. It sets out the conditions under which a planning agreement may be modified or discharged and enables regulations to be made with respect to applications under subsection (4) and determinations under subsection (7). Clause 78: Appeals This clause enables a person who applies for the modification or discharge of a planning agreement to appeal to the planning appeals commission where the relevant authority fails to give notice of its determination to the applicant within such period as may be prescribed, or determines that a planning agreement shall continue to have effect without modifications. Clause 79: Land belonging to councils and development by councils This clause introduces new powers setting out the procedure for dealing with district councils' own applications for planning permission. The new powers are introduced to ensure district councils do not face a conflict of interest in dealing with their own proposals for development. The principle remains that district councils will have to make planning applications in the same way as other applicants for planning permission. Provisions are introduced for district councils to grant planning permission for their own development or for development carried out jointly with another person and for development to be carried out on land owned by district councils. Specifically, the new powers enable the Department to make regulations modifying the application of Parts 3 (Planning Control), 4 (Additional Planning Control - apart from Chapters 1 and 2 of that Part) and 5 (Enforcement) of the Planning Bill in relation to land of interested district councils; and the development of any land by interested district councils jointly with any other persons. The regulations will deal with governance arrangements and will ensure that conflicts of interest are avoided. Part 4: Additional Planning Control. This part of the Bill is divided into five chapters covering the control of development affecting buildings of special architectural or historic interest (“listed buildings”) and areas of special architectural or historical interest (“conservation areas”), hazardous substances, trees, review of mineral planning permissions and advertisements. Clause 80: Lists of buildings of special architectural or historic interest This clause will ensure that the Department will continue to compile lists for buildings of special historic or architectural merit. The Department will continue to consult with the Historic Buildings Council and the appropriate district council before it compiles or amends any list. Clause 81: Temporary listing: building preservation notices Under this clause the district council can issue a building preservation notice served on the owner or occupier, to protect a building in its area which is not a listed building and which is in danger of demolition or alteration which would affect its character. The notice remains in force for 6 months or until the Department either lists the building under clause 80 or notifies the district council that it does not intend to do so. Clause 82: Temporary listing in urgent cases This clause enables the district council, where it appears urgent that a building preservation notice should come into force, to fix the notice conspicuously to an object on the building instead of serving the notice on the owner or occupier. Clause 83: Lapse of building preservation notices This clause applies where a building preservation notice ceases to be in force after the 6 month expiry period has lapsed or by departmental notification. A person who commits an offence under clause 85 “Control of works for demolition, alteration or extension of listed buildings” or clause 147 “Offence where enforcement notice not complied with” while the notice is current can still be prosecuted and punished even after the notice has ceased to be in force under clause 83. However, any applications for listed building consent – or any consent granted - while the notice was in force shall lapse. Likewise, any listed building enforcement notice served while the notice was in force shall cease to have effect. Clause 84: Issue of certificate that building is not intended to be listed This clause describes the circumstances in which the Department can issue a certificate that it does not intend to list a building. This also precludes the Department from listing that building for a period of 5 years or for the district council to issue a building preservation notice during that period. Clause 85: Control of works for demolition, alteration or extension of listed buildings This clause provides that carrying out unauthorised works on a listed building will be an offence, and sets out the penalties and the circumstances when works on a listed building may be defended from prosecution. It further establishes when works for demolition, alteration or extension are authorised and excludes ecclesiastical buildings from the workings of this provision. The maximum fine on summary conviction is raised from £30,000 to £100,000 Clause 86: Applications for listed building consent This clause specifies that applications for listed building consent must be made in a manner and format which will be specified in regulations. The regulations shall specify that applications for consent must include statements about design principles, access to the building, publicity for the application and requirements as to consultation. Regulations must also specify requirements for the district councils to take account of responses from consultees. Clause 87: Notification of applications for listed building consent to certain persons This clause sets out the requirements to be satisfied before a district council will entertain an application for listed building consent. Clause 88: Call in of certain applications for listed building consent to Department Under this clause the Department may direct that certain applications (including those where the Secretary of State or Department of Justice have certified that an application raises national security or security of premises issues) be referred to it instead of being determined by the district council. The direction may relate to individual applications or to a class of buildings as may be specified in the direction. The clause also allows the Department to call a public local inquiry to be held by the PAC or a person appointed by the Department. An inquiry route must be followed if an application raises national security or security of premises issues. Clause 89: Duty to notify Department of applications for listed building consent This clause places a duty on the district council, where it intends to grant an application for listed building consent, to first notify the Department providing details of the works for which consent is required. This allows the Department to decide if it wishes to call the application in. Clause 90: Directions concerning notification of applications, etc. This clause enables the Department to direct, in applications for listed buildings consent which it may specify, that clause 89 does not apply. Thus, while such a direction is in force, district councils may determine applications of the type specified in the direction in any way they think fit. The Department may also direct district councils to notify the Department and other specified persons of any listed building consent applications and district council decisions on those applications. Clause 91: Decision on application for listed building consent This power ensures that an application for listed building consent may be refused, granted without conditions or granted subject to conditions. It also establishes the factors a district council or the Department must consider when deciding to grant listed building consent or any conditions that it wishes to attach to the consent. Clauses 92 and 93: Power to decline to determine subsequent or overlapping application for listed building consent These clauses clarify and expand the cases where applications for subsequent (repeat) or overlapping listed building applications may be declined. Clause 94: Duration of listed building consent This requires that listed building consents must be granted subject to a condition that the works must begin within 5 years of the grant of consent or any other such time as the district council or Department may direct. Clause 95: Consent to execute works without compliance with conditions previously attached This clause relates to applications for listed building consent for the execution of works to a building without complying with conditions subject to which a previous consent was granted. An applicant can apply to a district council - or the Department if it granted the original consent to have the conditions (other than those relating to time limits) to which a previous listed building consent was subject changed or set aside if it is considered that they are no longer appropriate. Clause 96: Appeal against decision Under this clause an applicant can appeal to the PAC where their application to a district council for listed building consent or approval is refused or where they object to any conditions that have been imposed. As with appeals under clause 58 for planning applications, the appeal must be lodged with the Commission within 4 months or such other period as may be prescribed by development order. If the applicant or district council wish, they may appear before and be heard by the Commission. Clause 97: Appeal against failure to take decision An applicant may appeal to the PAC if a district council has failed to determine an application for listed building consent within a specified period or extended period as agreed in writing between the applicant and the district council. Clause 98: Revocation or modification of listed building conseby council A district council may revoke or modify listed building consent in a manner similar to clause 68 that is used for the revocation and modification of planning permission. Such action can only be taken before authorised works are completed. Clause 99: Procedure for section 98 orders: opposed cases Under this clause section 98 orders made by a district council but which have been opposed by the parties specified in the clause, shall not take effect unless confirmed by the Department (following a hearing by the PAC if requested by an opposing party). Clause 100: Procedure for section 98 orders: unopposed cases This clause applies where a district council has made an order under section 98 revoking or modifying a listed building consent and the owner or occupier of the land and all persons who the district council think will be affected by the order have notified the district council in writing that they have no objections. The Department’s confirmation is not required in such cases. Clause 101: Revocation or modification of listed building consent by the Department This clause enables the Department to make an order revoking or modifying the consent to such an extent as it considers expedient but the Department must consult with the relevant district council before doing so. Clause 102: Applications to determine whether listed building consent required Under this clause if a person proposing to execute any works to a listed building wishes to have it determined as to whether the works would involve the alteration or extension of the building in a manner which would affect its character as a building of special architectural or historic interest, they may apply to the district council to determine the question. Clause 103: Acts causing or likely to result in damage to listed buildings This clause establishes that anyone carrying out unauthorised works on a listed building will be guilty of an offence. It also establishes that a person who fails to prevent damage or further damage resulting from this offence is guilty of a further offence. Fines have been raised to the statutory maximum. Also the fine payable on summary conviction when a person fails to prevent damage or further damage is raised from one tenth of a level 3 fine to one tenth of a level 5 fine. Offences may also be convicted on indictment. Clause 104: Conservation areas This clause enables and sets out the procedures whereby a district council can designate areas within its remit which it decides are of special architectural or historic interest with the objective to preserve or enhance its character or appearance. The clause also enables the Department to designate a conservation area but it must consult with the relevant district council before doing so. The district council or the Department must pay special regard to enhancing the character or appearance of these areas where the opportunity to do so arises. This amendment is the Department’s response to the House of Lords “ South Lakeland” ruling and allows its policy for the enhancement of conservation areas to be maintained. Clause 105: Control of demolition in conservation areas This clause prevents the demolition of unlisted buildings in conservation areas without consent. Such buildings should not be demolished without the consent of the appropriate district council or Department. The Department may specify by direction buildings to which this clause does not apply. An addition to this clause provides (following the House of Lords “ Shimizu ruling”) that structural alteration of buildings to which this clause applies, where the alteration consists of partial demolition, will also require consent. This effectively creates a new offence of partial demolition of an unlisted building in a conservation area without consent. Clause 106: Grants in relation to conservation areas This clause permits the Department to continue to make grants or loans to offset expenditure incurred in the promotion, preservation or enhancement of the character or appearance of any conservation area. Clause 107: Application of Chapter 1, etc., to land and works of councils This clause introduces new powers setting out the procedures for dealing with district councils’ own applications for listed building consent. The provisions of the Bill which apply are listed with an enabling power taken to allow the Department by regulations, to modify and to make exceptions from certain provisions of the Bill in their applicability to district councils. Clause 108: Requirement of hazardous substances consent This clause continues the basis of control over hazardous substances and the requirement for hazardous substances consent. Clause 109: Applications for hazardous substances consent This clause is a regulation making power making provision for the form and content of consent applications and makes it an offence to supply false information. Regulations made under this clause may also require a district council to consult the Health and Safety Executive (HSENI) before determining an application for hazardous substances consent. Clause 110: Determination of applications for hazardous substances consent This clause gives the district council the power to grant or refuse hazardous substances consents, outlines certain factors that the district council shall have regard to and gives the district council the power to attach conditions to any consent. A new amendment requires a district council to have regard to the advice given by the HSENI during the consultation required by clause 109. A district council may only grant consent if the conditions are consistent with HSENI advice. Clause 111: Grant of hazardous substances consent without compliance with conditions previously attached This clause confers power for a district council or the Department to review the conditions subject to which the consent had previously been granted. Thus a person making a fresh application for hazardous substances consent can apply to have the conditions attached to the original consent reviewed. Clause 112: Revocation or modification of hazardous substances consent Under this clause where it appears to a district council that there has been a material change of use of land, or planning permission has been granted for development and the carrying out of which would involve a material change of use of such land, and the development to which the permission relates has been commenced, it may revoke the consent. The district council may revoke the consent if it relates to only one substance or, if it relates to more than one substance it may revoke it or revoke so far as it relates to a specified substance. Any person on whom a notice is served, by the district council, must be afforded an opportunity of appearing before, and being heard by, the PAC. Clause 113: Confirmation by Department of section 112 ordersThis clause confirms that an order under section 112 will not take effect unless it is confirmed by the Department. The Department may confirm the order either without modification or subject to such modification as it thinks fit. When the district council submits a section 112 order for confirmation it must also notify the landowner, any person who appears to it to be in charge of the land or any other person who, in its opinion will be affected by the order. This notice must also specify that any person on whom the notice is served can appear before and be heard by the PAC. The Department must give such an opportunity to both that person and the district council. Clause 114: Call in of certain applications for hazardous substances consent to DepartmentUnder this clause the Department may direct that certain applications (including those where the Secretary of State or Department of Justice have certified that an application raises national security or security of premises issues) be referred to it instead of being determined by the district council. The direction may relate to individual applications or to a class of buildings as may be specified in the direction. The clause also allows the Department to call a public local inquiry to be held by the PAC or a person appointed by the Department. An inquiry route must be followed if an application raises national security or security of premises issues. Clause 115: Appeals This clause gives a right of appeal when an application for hazardous substances consent is refused or granted subject to conditions. The appeal is made to the PAC. Clause 116: Effect of hazardous substances consent and change of control of land This clause ensures that hazardous substances consent ceases to have effect if there is a change in the control of part of the land and requires that anyone taking control of the land must make a fresh application, unless an application for the continuation of the consent has previously been made to the district council. The district council is responsible for the grant of an application for the continuance of the consent and the Department will have no role in this regard. In dealing with an application the district council must have regard to any advice given by the HSENI in relation to the application. The provisions do not apply when control of the land passes from one emanation of the Crown to another. Clause 117: Offences Under this clause if there is a contravention of hazardous substances control the appropriate person will be guilty of an offence. This is the case when a quantity of hazardous substance (equal to exceeding a controlled quantity) is present on or has been present on, over or under land and there is no hazardous substances consent for the presence of that substance. Alternatively, an offence is committed if the quantity exceeds the maximum permitted by the consent or there has been a failure to comply with any conditions attached to the consent. The person guilty of the offence is the person knowingly causing the substance to be present, any person who allows it to present or the person in control of the land. It shall be an defence for the accused to prove that they did know that the substance was present (or was present in quantities that contravened the consent), of if they can prove that all reasonable precautions were taken or that commissioning of the offence could only be avoided by taking action amounting to a breach of a statutory duty. The maximum fine on summary conviction is raised from £30,000 to £100,000. Clause 118: EmergenciesThis clause ensures that this power will be retained by the Department only. The Department may make a direction that the presence of a hazardous substance specified in the direction is necessary for the effective provision of that service or commodity if it appears that the community is likely to be deprived of an essential service or commodity. Clause 119: Health and safety requirements This provision prevents conflict between any action that may be taken under the hazardous substances provisions and any relevant statutory provision. Where such conflict arises, any consent which allows these actions shall be void. There is a requirement to consult the HSENI when a consent or hazardous substances contravention notice is believed to be void in this manner and the consent must be revoked if HSENI advise that the consent or notice has been rendered void. Clause 120: Applications by councils for hazardous substances consent This clause introduces new powers setting out the procedures for dealing with district councils’ own applications for hazardous substances consent. The provisions of the Bill which apply are listed with an enabling power taken to allow the Department by regulations, to modify and to make exceptions from certain provisions of the Bill in their applicability to district councils. Clause 121: Planning permission to include appropriate provision for trees This clause places a duty on a district council and the Department to make provision for the preservation or planting of trees when granting planning permission. Clause 122: Tree preservation orders: councils This clause allows district councils to make tree preservation orders (TPO). TPOs prohibit the cutting down or damaging of protected trees and can also secure the replanting of felled trees. TPOs can apply to an individual tree, a group of trees or woodland. The Department may make regulations as to the form of TPOs and the procedure to be followed in the making of such orders. No TPO shall apply to the cutting down, uprooting, topping or lopping of trees which are dead or have become dangerous or the cutting down, uprooting, topping or lopping of any trees in compliance with any obligations imposed by any statutory provision or where necessary for the prevention or abatement of a nuisance. Clause 123: Provisional tree preservation orders This clause allows a tree preservation order to be made with immediate effect by a district council, in circumstances which they deem to be urgent, and does not require previous confirmation. Clause 124: Power for Department to make tree preservation orders Under this clause the Department, after it has consulted the relevant district council, can decide to make a tree preservation order or amend or revoke an order. Clause 125: Replacement of trees This clause gives the district council the power to require the owner of land where a TPO is in force to replace any trees that have been removed. Clause 126: Penalties for contravention of tree preservation orders This clause provides for penalties to be imposed in respect of the contravention of a TPO. It also makes it an offence to cut down or destroy a tree in contravention of a tree preservation order, or to top or lop a tree in such a way as is likely to destroy it. The maximum fine on summary conviction is raised from £30,000 to £100,000. Clause 127: Preservation of trees in conservation areas This clause applies the protection given by a TPO to trees within conservation areas. Thus it is an offence to carry out works to a tree within a conservation area unless notice was served of the intention to carry out works to the tree, consent was given or the works were carried out 6 weeks after the notice was issued and before the end of 2 years. Clause 128: Power to disapply section 127 The Department can make regulations under this provision to disapply the requirement to preserve trees in conservation areas: section 127). This can relate to specified conservation areas, trees of specified species or size, trees belonging to specified persons or bodies or specified acts that may be carried out on the trees. Clause 129: Review of mineral planning permissions This clause and the provisions introduced by the schedules enable district councils to start a process resulting in an initial review of all mineral permissions granted in Northern Ireland thereby ensuring that their conditions meet modern expectations and current environmental standards. The provisions also prevent dormant sites from reopening without a review of the conditions attached to their permissions. A further duty is placed on district councils to instigate additional periodic reviews of all mineral sites. Although the majority of these functions will fall to the district councils, the Department will be able to require that certain applications for review are referred to it. Clause 130: Control of advertisementsThis clause enables the Department to make regulations for controlling the display of advertisements in the interests of amenity or public safety. These allow the regulation of the dimensions, appearance and position of advertisements and also require that the consent of the relevant district council is obtained before the advertisement can be displayed. The regulations may prohibit the display in any area of special control (which may be defined by means of orders made or approved by the Department) of all advertisements except advertisements of such classes as may be prescribed. Finally, planning permission is deemed to be granted where the display of advertisements, in accordance with regulations made under this clause, involves the development of land. Part 5: Enforcement. Clause 131: Expressions used in connection with enforcementThis clause defines a breach of planning control and sets out that enforcement action constitutes the issuing of an enforcement notice or breach of condition notice. Clause 132: Time limitsThis clause sets out new time periods within which action may be taken in respect of breaches of planning control. Where the breach consists of carrying out without planning permission of building, engineering, mining or other operations no enforcement action may be taken after 5 years beginning with the date on which the operations were substantially completed. If the breach consists in the change of use of any building to use as a single dwelling-house, no enforcement action may be taken after 5 years beginning with the date of the breach. In the case of any other breach of planning control, including other changes of use, no enforcement action may be taken after the end of 5 years beginning with the date of the breach. Clause 133: Power to require information about activities on land and Clause 134: Penalties for non-compliance with planning contravention noticeClause 133 provides for the issue of a planning contravention notice, giving the district council power to obtain information prior to taking enforcement action, to encourage dialogue with any persons thought to be in breach of planning control and to secure their co-operation in taking corrective action. Failure to comply with a notice issued under clause 133 within 21 days of its service is an offence. The fine for this offence has been raised to not exceeding level 5 on the standard scale (currently £5000). In addition any person who makes a false or misleading statement in respect of a notice is liable on summary conviction to a fine not exceeding level 5 on the standard scale (currently £ 5,000). Clauses 135, 136 and 137: Temporary stop notices including restrictions and offencesA district council may serve a temporary stop notice to halt a breach of planning control for a period of up to 28 days as soon as the breach is identified, without first having had to issue an enforcement notice. The district council has up to 28 days to decide whether further enforcement action is appropriate and what that action should be, without the breach intensifying by being allowed to continue. The provisions also impose certain limitations on activities on the land in question. Temporary stop notices issued under clause 135 are not applicable to residences, or to other activities which the Department can specify in regulations. They cannot be issued for development or activities whose time limits for enforcement have passed. Only one notice can be issued unless further enforcement action is taken. Clause 137 specifies that contravention of a notice issued under clause 135 is a criminal offence, punishable on summary conviction by a fine of up to £100,000 or on indictment by an unlimited fine. Clause 138: Issue of enforcement notice by councilsThis clause provides the district council with the power to issue an enforcement notice to remedy a breach of planning control. An enforcement notice must be served within defined time periods on the owner or occupier of the land to which the notice relates and on any other person with an estate in the land. Clause 139: Issue of enforcement notice by DepartmentThis clause provides the Department with the power to issue an enforcement notice, however the Department must consult the district council for that area before doing so. Clause 140: Contents and effect of enforcement noticeThe enforcement notice has to be sufficiently clear to enable any recipient to understand exactly what breach of planning control is alleged and what action is required to remedy this. A timeframe must be stated in the notice during which time all actions to remedy the breach must be completed. The district council or Department have the flexibility to require only partial remedy of a breach of planning control where, at the time of enforcement, a total remedy is not considered necessary. Clauses 141 and 142: Variation and withdrawal of enforcement notices by councils or DepartmentThese clauses allow for the withdrawal or variation of an enforcement notice by the district council or Department without prejudice to their power to issue a further notice. Clause 143: Appeal against enforcement noticeThis clause includes provisions which specify the grounds on which an appeal against an enforcement notice can be made and the procedures for making a valid appeal. Before determining an appeal under these provisions the PAC must provide all appellants, the relevant district council or the Department the opportunity to appear before and be heard by the Commission. Clause 144: Appeal against enforcement notice – general supplementary provisionsThis clause provides that the PAC must quash an enforcement notice, vary it or uphold it on appeal. The Commission may correct any mistakes in the notice or vary its terms as long as the correction or variation can be made without injustice to either the appellant, the district council or the Department. Clause 145: Appeal against enforcement notice – supplementary provisions relating to planning permissionWhen determining an appeal under clause 143 the PAC can grant planning permission for the matters the notice refer to, change the conditions of an existing permission or issue a certificate of lawfulness of existing use or development. The PAC must notify the appellant of the amount of the planning application fee and specify the period within which it must be paid. If the fee is not paid within that period then the appeal on the planning merits will lapse and the Commission will be barred from considering or determining the deemed planning application. Clause 146: Execution and cost of works required by enforcement noticeThis clause includes provisions which allow the district council or the Department to enter land and carry out steps to ensure compliance with an enforcement notice and to recover from the land owner any reasonable expenses in doing so. It is an offence, punishable on summary conviction to a fine not exceeding level 3 on the standard scale, to wilfully obstruct anyone authorised to carry out those steps. Clause 147: Offence where enforcement notice not complied withThis clause deals with offences for not complying with an enforcement notice. The maximum level of fine, on summary conviction, is increased to £100,000. A person can be convicted and fined on indictment for this type of offence. The courts when determining the level of fine shall have regard to any financial benefit, which has accrued or appears likely to have accrued, in consequence of the offence. The clause also provides that a person found guilty of an offence, and who continues not to comply with a notice, may be guilty of a further offence, and subsequently, of still further offences until there is compliance with a notice. Clause 148: Effect of planning permission etc., on enforcement or breach of condition noticeIf planning permission is subsequently granted to development mentioned in an enforcement notice or a breach of condition notice, the notice ceases to have effect in relation to the part or parts of the development which has permission. This does not remove any previous liability of a person for non-compliance with either notice. Clause 149: Enforcement notice to have effect against subsequent developmentOnce an enforcement notice has been complied with the requirements within it continue to stand for future use of the land to which it relates. Discontinuance of use must be permanent, as must alteration or removal of buildings. To breach this requirement is now punishable by a fine not exceeding £7,500. Clause 150: Service of stop notices by councils and Clause 151 Service of stop notices by Department These clauses allow the district council or the Department to issue a stop notice requiring that an activity for which an enforcement notice has been issued should cease. The Department must consult the appropriate district council before serving a stop notice. A stop notice has immediate effect unless the district council or Department state otherwise. The contravention of a stop notice is an offence; the maximum level of fine for contravention of a stop notice is increased to £100,000 on summary conviction; a person may be convicted and fined on indictment for this type of offence; and courts are required to take account of any benefits accrued or which appear likely to accrue as a result of the offence. Clause 152: Enforcement of conditionsThis clause provides for the district council to issue a breach of condition notice for breaches of conditions attached to a planning permission. It may be served if there is clear evidence that a planning condition has not been complied with. Non-compliance with a breach of condition notice shall be an offence liable on summary conviction to a fine not exceeding level 3 on the standard scale (currently £1,000). Clause 153: Fixed penalty notice where enforcement notice not complied with; and Clause 154: Fixed penalty notice where breach of condition notice not complied with Clauses 153 and 154 enable an authorised officer of a district council, to issue a fixed penalty notice for the offences of failure to comply with an Enforcement Notice or Breach of Condition Notice, offering the offender an opportunity to discharge any liability for the offence without having to go to court. The amount of the penalty can be such amount as may be prescribed. The fixed penalty payable is reduced by 25% if paid within 14 days. Clause 155: Use of fixed penalty receipts This clause enables district councils to use the receipts from fixed penalty notices issued under clauses 153 and 154 for the purposes of enforcement functions or other functions specified in regulations. Clause 156: InjunctionsThis clause gives the district council a power to apply to the Courts for an injunction to prevent any actual or threatened breach of planning control. This power also applies in relation to unauthorised demolition or works to a listed building, breaches of a tree preservation order and certain acts in respect of trees in a conservation area; and, any actual or apprehended breach of hazardous substances control. Clause 157: Issue of listed building enforcement notices by councilsThis clause enables a district council to issue a listed building enforcement notice where the requirement to obtain listed building consent for works to a listed building has not been complied with. This includes if conditions associated with that consent are not being adhered to. The notice must set out the steps to be taken to remedy the breach and the timeframe allowed. Clause 158: Issue of listed buildings enforcement notices by DepartmentThe Department may issue a listed building enforcement notice, after consulting the appropriate district council, and this has the same effect as a notice issued by a district council. Clause 159: Appeal against listed building enforcement noticeNotices issued under clauses 157 or 158 may be appealed and this clause sets out the timings and possible grounds for appeal. Appeals are determined by the PAC, and the Commission can grant listed building consent or discharge/substitute any condition attached to previous consent. Clause 160: Effect of listed building consent on listed building enforcement noticeIf listed building consent is subsequently granted to development mentioned in a listed building enforcement notice, the notice ceases to have effect in relation to the part or parts of the development which has consent. This does not remove any previous liability of a person for non-compliance. Clause 161: Urgent works to preserve buildingThe district council or the Department may carry out and recover the costs of urgent works to either a listed building or one which the Department has directed that this clause shall apply. The Department may direct this clause applies to buildings in a conservation area. A notice issued to the owner can be appealed to the PAC on the grounds specified in this clause. Clauses 162 and 163: Hazardous substances contravention notice (including variation)These clauses enable district councils to issue a hazardous substances contravention notice for a contravention of hazardous substances control. Service requirements and specifics to be contained within the notice are outlined in clause 162. A notice can be withdrawn, and the Department is required to make regulations to cover appeals provisions and may make further regulations as to the specific requirements of the notice. Clause 163 allows the district council to vary a notice which it has already issued, regardless of whether the notice has taken effect. Clauses 164 and 165: Enforcement of duties as to replacement of trees and appeals against section 164 noticesThese provisions include enforcement measures in respect of the protection of trees that are subject to a TPO with a power for the district council to enforce the duty to replace trees subject to a TPO. They also set out (in clause 165) specific grounds and method of appeal against enforcement notices issued under clause 164 in relation to trees. Clause 166 and 167: Execution and cost of works required by clause 164 notice and enforcement of controls as respects trees in conservation areasClause 166 enables the district council to enter onto land to replant trees subject to a TPO, and to recover any costs incurred as a civil debt. Clause 167 places a duty on an owner to replace trees that are removed in a conservation area. Clause 168: Enforcement of orders under section 73This clause includes provisions dealing with enforcement of orders (issued under clause 73) requiring the discontinuance of use or alteration or removal of buildings or works. The district council or the Department is permitted to enter the land and carry out any works required by the order, and recover the costs as a civil debt. Provisions cover change of ownership of land and the failure to comply being attributed to a third party. Clauses 169 and 170: Certificate of lawfulness of existing use or development and Certificate of lawfulness of proposed use or developmentClause 169 enables a person to apply to the district council for a certificate to establish whether any existing use or development, or non compliance with a condition on a planning approval is lawful. Provisions cover the circumstances for issue and actual requirements of the certificate. Clause 170 enables any person to apply to the district council to establish whether any proposed use or development, or any operations to be carried out in, on, over or under land is lawful. Again, provisions cover the circumstances for issue and actual requirements of this certificate. Clauses 171 to 174: Certificates under sections 169 and 170, supplementary provisions, offences, appeals against refusal or failure to give decision on applications, further provision as to appeals under section 173Clause 171 covers supplementary provisions associated with procedures for obtaining/revoking the certificates under clauses 169 and 170 to be specified by development order. Clause 172 deals with offences and sets out that any person who makes a false or misleading statement in respect of procuring a certificate will, on summary conviction, be liable to a fine not exceeding the statutory maximum or, on conviction on indictment, to imprisonment for a term not exceeding 2 years, or a fine, or both. Clause 173 provides a right of appeal to the PAC against a district council’s refusal or failure to give a decision on applications for a certificate. The PAC can grant the appellant the certificate or dismiss the appeal if it considers the district council’s decision appropriate. In relation to appeals clause 174 provides the opportunity for all appellants and the district council to appear before and be heard by the commission. Clause 175: Enforcement of advertisement controlThis clause allows a district council to deal with enforcement of advertisement control. On conviction for display of an advertisement contravening regulations, made under clause 130 for the control of advertisements, a person is liable to a maximum fine up to level 4 on the standard scale (currently £2,500). The defendant may be a landowner / occupier or those whose advertisement is being displayed. Clauses 176, 177 and 178: Rights to enter without warrant, under warrant and supplementary provisionsClause 176 allows any person authorised by the district council to enter land without a warrant to carry out enforcement functions under this Bill. The provisions also enable the Department to enter land prior to issuing an enforcement notice, listed building enforcement notice, stop notice, following consultation with the district council. Clause 177 provides that if entry to land has been refused or the case is urgent, the district council or Department can obtain a warrant to enter the land. Clause 178 covers administrative arrangements for the entering of land either with or without a warrant, and includes offence provisions e.g. an offence of obstructing the entry of authorised persons. Part 6: Compensation Clause 179: Compensation where planning permission is revoked or modified Clause 179(1) transfers the functions under sections 26 and 27 of the Land Development Values (Compensation) Act 1965 (“the 1965 Act”) from the Department to district councils on the day of transfer. This excludes certain functions to be retained by the Department, namely setting the time within which the compensation claim is to be lodged (section 20(2) as applied by section 26(6)) and compensation recovery (section 24 as applied by section 27(5)). Clause 179(3) ensures that references to the Department in any relevant statutory instrument or provision passed before the transfer date will be construed as references to a district council. Sections 26 and 27 of the 1965 Act provide for the payment of compensation by a council when planning permission is revoked or modified. Section 26(5) applies section 29 of the 1965 Act which makes provision for how compensation is measured in instances where it relates to new development or “Schedule 1 development”. Schedule 1 development, so called because it is specified in schedule 1 of the 1965 Act, includes a number of relatively minor types of development (more generally known as existing use) which might be expected to receive planning permission as a matter of course. New development is development not specified in this schedule. Section 26(6) applies section 22 specifying how compensation is to be paid. Section 27 allows a district council to apportion compensation between different parts of the land to which the claim relates and also to register details of the apportionment. Clause 180: Modification of the Act of 1965 in relation to minerals This clause makes provision corresponding to Article 97 of the Planning ( Northern Ireland) Order 1972. It modifies section 26(1) of the 1965 Act so that a claim for expenditure or loss when planning permission for the winning and working of minerals is revoked or modified shall not be entertained in respect of buildings plant or machinery unless the claimant can prove that they are unable to use them except at the loss claimed. The reason is that such machinery can often be moved and the provision ensures that only the net loss is paid on revocation. Clause 181: Compensation where listed building consent revoked or modified This clause provides that compensation is payable when listed building consent is revoked by a district council under section 98 or by the Department under section 101. The clause specifies that a claim may be made for abortive expenditure or loss or damage, but not for expenditure on work carried out before the grant of listed building consent nor for other loss or damage arising out of anything done or omitted to be done before the grant of consent. Clause 181(4) applies the provisions from the 1965 Act relating to revocation and modification to this provision. Clause 182: Compensation in respect of orders under section 73, 75 or 112. This clause provides for compensation when a discontinuance order is made by a district council under section 73 or by the Department under section 75. Clause 182(5) ensures that no compensation is payable if a purchase notice has been served in respect of an estate in the land or if the estate has been purchased by the district council under Part 7. Clause 183: Compensation in respect of tree preservation orders Under this clause a tree preservation order may make provision for the payment of compensation if consent is refused to fell, lop or top a tree which is the subject of a tree preservation order with a consequent loss to the owner of the value of the timber. The compensation is not related to the development value of the land. Thus a claim for compensation could not include an item for loss of development value if refusal to allow felling of the tree means that the land cannot be developed. A claim may also be made for any loss or damage caused by a consent granted subject to conditions. Clause 184: Compensation where hazardous substances consent modified or revoked under section 116. This clause provides that compensation is payable when there is a change to the person in control of part of the land to which a hazardous substances consent relates and the district council revokes or modifies the consent upon an application for its continuation under section 116(2). Clause 185: Compensation for loss due to stop notice Compensation is payable when a stop notice is served by a district council (under clause 150) or the Department (under clause 151). A person who has an estate in or occupies the land is entitled to compensation if the enforcement notice is quashed on grounds other those mentioned in clause 143(3)(a) (planning permission granted for those items contained in the stop notice on appeal); if the enforcement notice is varied, other that that mentioned in clause 143(3)(a), so that the activity prohibited by the stop notice ceases to be relevant; if the notice is withdrawn for reasons other than the grant of planning permission where it is assumed that there was a withdrawal because the notice was invalid or was not warranted; or if it was withdrawn (and by implication should never have been served). Clause 186: Compensation for loss or damage caused by service of building preservation notice This clause provides that compensation is payable when a building preservation notice ceases to have effect without the building being included on the list of buildings of special architectural or historic interest compiled by the Department under clause 80. Clause 187: Compensation for loss due to temporary stop notice This clause applies if a temporary stop notice is issued to halt an alleged breach of planning control and the activity specified is subsequently authorised either by a planning permission or development order, if a certificate in respect of the activity is issued under clause 169 (Certificate of lawfulness of existing use or development - CLUD) or granted by virtue of an appeal against a decision not to issue a CLUD under clause 173 or if the district council withdraws the temporary stop notice. The clause provides for compensation for any loss that may have occurred under these circumstances. Clause 188: Compensation where planning permission assumed for other development A claim for compensation following modification or revocation of planning permission can be made to a district council under article 26 of the 1965 Act. It may, however, appear to the district council that planning permission could have been granted for development other than that which gave rise to the claim. In such cases the district council may direct that it shall be assumed that permission for that other development would be granted either unconditionally or conditionally when assessing the amount of compensation payable. Clause 189 : Compensation: decision taken by council or Department where consultee fails to respond under section 229. A statutory consultee is required, under section 229, to give its necessary response (within a specified timeframe) when a council or the Department is determining a planning application.. If the council or the Department was to determine the application without this response, and if it was later necessary to revoke or modify the permission because of information received in a subsequent response, the consultee’s sponsoring Department must pay to the council the amount of compensation payable. Clause 190: Interpretation of Part 6 This clause provides that Part 6, “compensatable estate” has the same meaning as in the 1965 Act. Part 7: Purchase of estates in certain land affected by planning decisions. Clause 191: Service of purchase notice This clause enables a land owner, who claims their land is left without any reasonable beneficial use by virtue of a planning decision, to issue a purchase notice to seek to have the district council acquire it from them. A purchase notice must be served within the time and manner specified by a development order. Clause 192: Purchase notices: Crown land This clause sets out the conditions whereby a purchase notice may be served in respect of Crown land only. Clause 193: Action by council following service of purchase notice Under this clause after a purchase notice is served on the district council it may respond in a number of ways. The district council may serve a notice that it is willing to comply with the purchase notice or it may serve a counter-notice by way of objection. A counter-notice must state the reasons why the district council does not wish to comply with the purchase notice. Clause 194: Further ground of objection to purchase notice This clause allows the district council to object to development of land which although incapable of beneficial development in its existing state, ought to remain undeveloped in accordance with a condition attached to a previous planning permission. Clause 195: Reference of counter-notices to Lands Tribunal This clause empowers the Lands Tribunal to decide if either the purchase notice or the district council’s counter-notice should be upheld. Clause 196: Effect of valid purchase notice This clause states that when a purchase notice has been accepted, the district council is deemed to have entered into a contract to purchase the land to which the notice applies. It also sets out arrangements for payment. Clause 197: Special provision as to compensation under this Part Under this clause if compensation is payable in respect of expenditure incurred in carrying out any work on land under section 26 of the 1965 Act, then, if a purchase notice is served on that land, it is payable in respect of the acquisition of that estate in pursuance of the purchase notice and shall be reduced to an appropriate value. Part 8: Further provisions as to historic buildings. Clause 198: Historic Buildings Council This clause authorises the continuance of the Historic Buildings Council which is unique to Northern Ireland within the UK. It also outlines the functions of the Council as keeping under review the general state of preservation of listed buildings, advising the Department on the preservation of such buildings as the Department may refer to it and such other functions as conferred on it by statutory provision. Clause 199: Grants and loans for preservation or acquisition of listed buildings Under this clause the Department has the option to make a contribution for expenditure (through grants or loans) incurred in the repair or maintenance of a listed building, or in the upkeep of land comprising any such building or repair or in the maintenance of objects kept in the building. The Department, in conjunction with Department of Finance and Personnel, can make grants or loans to the National Trust towards the cost of acquiring; a listed building; any land associated with any such building; or any objects which are usually kept in the building. Clause 200: Acquisition of listed buildings by agreement Under this clause the Department may acquire a listed building or land comprising such a building by agreement, purchase, lease or otherwise or by gift. The Department may also acquire objects which have been kept in a listed building or an estate vested in the Department or in a listed building under its control or management. The Department may at its discretion make arrangements for the management, custody and use of property acquired or accepted by it. Clause 201: Acceptance by Department of endowments in respect of listed buildings This clause sets out arrangements for the acceptance by the Department of endowments in respect of listed buildings. Clause 202: Compulsory acquisition of listed buildings Under this clause the Department may intervene and compulsorily acquire the listed building and any land associated with the building if the Department determines it necessary to preserve the building or for its proper control or management. Compulsory acquisition procedures are set out within the clause. Part 9: The Planning Appeals Commission (PAC). Clause 203: The Planning Appeals Commission (PAC) This clause describes the continued governance arrangements of the PAC including its senior structure, impartiality and administration. These provisions were transferred to OFMdFM by the Departments (Transfer of Functions) Order (NI) 2001, SR 2001, No. 229. Clause 204: Procedure of appeals commission This clause describes the internal procedures of the PAC, including appointment of members of the appeals commission to hear appeals, inquiries / independent examinations or hearings and after consultation with the commission and the Department (OFMdFM), the appointment of assessors to sit with the members appointed to advise the member on any matters arising. The Department can make rules regulating the procedure for proceedings before the PAC, and any such rules shall be subject to negative resolution. Clause 205: Power to award costs This clause applies when a party to an appeal has put another party to the appeal to unnecessary expense because of unreasonable behaviour. In these circumstances the PAC can determine that an award of costs can be made. Parties will normally come to an agreement amongst themselves, but disputes will be referred to the Taxing Master of the High Court. Clause 206: Orders as to costs; supplementary This clause applies the above provisions relating to award of costs to circumstances where a hearing has been cancelled. Part 10: Assessment of Council’s performance or decision making. Clause 207: Assessment of council’s performance This clause introduces new powers for the Department to conduct an assessment of a district council’s performance, or to appoint a person to do so. The assessment may cover the district council’s performance of its planning functions in general or of a particular function. Clause 208: Assessment of council’s decision making This clause gives the Department or an appointed person the power to conduct an assessment of how a district council deals with applications for planning permission. In order to capture long term trends, this power is limited to exclude decisions made within the year preceding the date that the district council are notified of the assessment. The assessment may cover the basis for determinations, the processes by which they have been made and whether they were in accordance with the local development plan or conformed with advice given by the Department. Clause 209: Further provision as respects assessment of performance or decision making This clause details the arrangement for assessments of district councils’ performance or decision making. The Department is required to notify the district council of its intention to carry out an assessment, and to indicate its intended scope, and where it appoints a person to carry out the assessment it is to advise the district council who the appointed person is. The Department will have powers to determine that the scope of an assessment under clause 208 may relate to a type of application, a period of time or a geographical area. For the purposes of any assessment the Department or the appointed person may require access to any premises of the district council and any documents which appear to be necessary for the purposes of the assessment. The clause allows the Department or the appointed person to require a person to give them such information as necessary and to attend in person to give the information or documents and requires the district council to provide the Department or the appointed person with every facility and all information which may reasonably be required. The Department or the appointed person must give 3 clear days notice of any requirement under this section and produce a document of identification if required to do so. Clause 210: Report of assessment The Department or the appointed person is required to prepare a report (an assessment report), and issue it to the district council. The report may recommend improvements which the district council should make. The district council is required to prepare and submit a response report to the Department within 3 months of receipt of the assessment report. This report will set out the extent, the manner and the period within which it proposes to implement the recommendations or reasons for declining to implement recommendations. Both reports must be published. The Department may issue a direction specifying actions where the district council declines to implement recommendations or appears not to be carrying out what it proposes in its response report. The Department must publish any such direction or variation of a direction. Part 11: Application of Act to Crown Land. Clause 211: Application to the Crown Clause 211 applies the provisions of the Bill to the Crown with the exception of enforcement functions covered by clauses 146, 156 161 and 166 of the Bill, subject to express provisions detailed in the remainder of Part 11. This means that the Crown requires planning permission or consent as required by the Bill and relevant subordinate legislation. Clause 212: Interpretation of Part 11 This clause deals with the interpretation of Part 11 and includes various definitions. Clause 213 Urgent Crown development and clause 214 Urgent works relating to listed buildings on Crown land Clause 213 covers instances where development by Crown bodies will be considered to be of significant public importance and require the processing of applications more quickly than permitted by the processing procedures of district councils. The new powers aim to streamline the process and provide for the direct submission of planning applications to the Department. A similar procedure is introduced for urgent works to a listed building on Crown land. Clause 215: Enforcement in relation to the Crown This clause provides that the Crown should remain immune from prosecution for any offence under the Bill. A district council or the Department is able to initiate enforcement action by, for example, serving enforcement notices but is not able to enforce them by entering land or making applications to the court without the consent of the appropriate authority (appropriate authority is defined in clause 212 of the Bill). In granting such consent the appropriate authority may impose such conditions as it considers relevant. This might mean, for example, that any site visit by the Department has to be accompanied, to take place at a pre-arranged time and/or to exclude certain parts of the site. Clause 216: References to an estate in land This clause deals with references to an estate in land and states that references to an “estate” in land includes a Crown estate. Clause 217: Applications for planning permission, etc. by Crown This clause sets out that, through subordinate legislation, the Department may modify or exclude any statutory provision relating to the making and determination of applications for planning permission or consent etc by the Crown. Clause 218: Service of notices on the Crown This clause deals with the service of notices on the Crown and states that notices under the Planning Bill must be served on the appropriate authority. In addition Section 24 of the Interpretation Act ( Northern Ireland) 1954 in relation to the service of notices has been disapplied. Part 12: Correction of Errors. Clause 219: Correction of errors in decision documents The power to allow the Department to correct minor typographical errors in its decision documents/notices was introduced by The Planning Reform (NI) Order 2006 (No. 1252 NI 7). This power has now been amended by the current Bill. Firstly, the power to correct errors is now transferred to district councils and secondly, the requirement to first obtain the written consent of the applicant (or the landowner if that is not the applicant) has now been removed. The clause also allows a district council to correct an error if requested in writing by any person and if it sends a written statement to the applicant explaining the error and stating that it intends to make a correction. Clause 220: Correction notice Under this clause the district council must after making any correction or deciding not to make any correction, issue a notice in writing specifying the correction of the error or giving notice of its decision not to correct such an error. Clause 221: Effect of correction This clause describes the impact where a correction is made or where a correction is not made. Clause 222: Supplementary This clause defines a decision document and a correctable error for the purposes of this Part. Part 13: Financial Provisions. Clause 223: Fees and charges This clause contains provisions for the payment of both charges and fees relating to planning and consent applications. The provisions enable the Department to make regulations for the payment of charges or fees for the recovery of the costs of performing district council or departmental functions. OFMDFM may also make regulations for the payment of a charge or fee in respect of deemed planning applications or planning appeals. This clause also introduces new provisions for charging multiple fees for retrospective planning applications and where deemed planning applications are submitted to the Planning Appeals Commission on foot of an enforcement appeal. Clause 224: Grants for research and bursaries This clause allows the Department to make grants to research or education institutions relating to planning and design of the physical or built environment. Students undertaking particular courses may be awarded bursaries. Clause 225: Grants to bodies providing assistance in relation to certain development proposals These provisions allow the Department to award a grant to an organisation which is assisting the community with understanding planning policy, or which is providing technical expertise to allow an application to be easily understood. Grants may also be made to organisations which aim to further the preservation, conservation and regeneration of historic buildings. The organisations being funded must not be profit making bodies. Clause 226: Contributions by councils and statutory undertakers This clause creates a discretionary power to allow statutory undertakers or other district councils to contribute to the costs of a council carrying a review under clause 3 – matters affecting development. Also available is a discretionary power allowing statutory undertakers or other district councils to contribute to another council’s costs when discharging specified planning functions under the Bill. Finally, the Department will be able to require councils to contribute to another council’s compensation costs when that council is carrying out certain specified functions under the Bill. Clause 227: Contributions by departments towards compensation paid by councils This clause provides a discretionary power whereby a government department can contribute to the compensation costs of a district council if those costs were incurred by a council decision or order made in the interest of services provided by that government department. Part 14: Miscellaneous and General Provisions Clause 228: Review of Planning Act This clause requires the Department to review and issue a report on the implementation of the Planning Act 3 years after the commencement of Part 3 of the Act and at least once in every 5 years after that. Clause 229: Duty to respond to consultation This clause introduces a requirement that those persons or bodies which are required to be consulted by a district council or the Department before the grant of any permission, approval or consent must respond to consultation requests within a prescribed period. The clause also gives the Department power to require reports on the performance of consultees in meeting their response deadlines. Clause 230: Minerals This clause provides for the application of the Bill to development consisting of the winning and working of minerals, subject to modifications. The circumstances under which mining operations are considered to be a “use” of land are stipulated. Clause 231: Local inquiries This clause allows the Department to hold a public inquiry when carrying out any of the functions of this Bill. The provisions of the Interpretation Act (NI) 1954 apply to these inquiries. The Department may make rules for the procedures to be followed during the inquiry process. Such rules will be subject to negative resolution. Clause 232: Inquiries to be held in public subject to certain exceptions Given the changes in the role of the Secretary of State and the new role of the Department of Justice, following devolution of policing and justice, these provisions clarify the responsibilities of the Secretary of State and the Department of Justice in relation to inquiries. The provisions deal with procedures for planning applications, etc, where, in the opinion of the Secretary of State/the Department of Justice, the consideration by the council or Department of objections or representations received in relation to the application raise issues of national security or the security of Crown or other premises and that the disclosure of related information would be contrary to the national interest. The Secretary of State will have responsibility for issuing a relevant direction under clause 232 in instances where the giving of evidence of a particular description or the making it available for inspection would be likely to result in the disclosure of information relating to: (a) national security; or (b) the measures taken or to be taken to ensure the security of any premises or property belonging to Her Majesty in right of the Crown or belonging to a government department or held in trust for Her Majesty for the purposes of a government department; or (c) measures taken or to be taken to ensure the security of any premises or property which is used for the purposes of the armed forces of the Crown or the Ministry of Defence Police. The provisions also set out that the Department of Justice will have responsibility for issuing the relevant direction under clause 232 in instances where the giving of evidence of a particular description or the making it available for inspection would be likely to result in the disclosure of information (contrary to the public interest) relating to the measures to be taken to ensure the security of any premises or property other than premises or property mentioned above. Clause 233: Directions: Secretary of State This clause sets out that the Secretary of State may direct that certain evidence may only be heard by, or be open to inspection by, certain persons. If the Secretary of State is considering giving such a direction, the Advocate General for Northern Ireland may appoint a person to represent the interests of any person who will be prevented from hearing or inspecting such evidence. Powers provide for the appointment, payment and functions of a person (the appointed representative) to represent the interests of those people who are prevented from seeing the restricted material. Clause 234: Directions: Department of Justice This clause sets out that the Department of Justice may direct that certain evidence may only be heard by, or open to inspection by, certain persons. If the Department of Justice is considering giving such a direction, the Attorney General may appoint a person to represent the interests of any person who will be prevented from hearing or inspecting such evidence. Powers provide for the appointment, payment and functions of a person (the appointed representative) to represent the interests of those people who are prevented from seeing the restricted material. Clause 235: National security This clause contains the procedures for planning applications, consents and approvals where, in the opinion of the Secretary of State or as the case may be the Department of Justice, the consideration by a district council or the Department of objections or representations received in relation to the application raise issues of national security or matters relating to the security of Crown or other properties and the public disclosure of such information would be contrary to the national interest. Procedures will enable decisions to be made where, for security reasons, details of the development cannot be revealed but where to withhold such details would impact on the ability of interested parties to fully participate in the planning process. The Department will be required to hold a public local inquiry in such circumstances. The roles of the Secretary of State and the Department of Justice in relation to certification under this clause are split. The Secretary of State will have responsibility for the making of rules in circumstances where he has certified under this clause, the Department of Justice will have responsibility for the making of corresponding rules where that Department issues the relevant certification under this clause. Clause 236: Rights of entry This clause gives district councils and the Department the powers of entry they require to discharge their functions under this Bill. Powers of entry are also given to the Department of Social Development, Department of Finance and Personnel and the PAC in respect of their functions under this Bill. Clause 237: Supplementary provisions as to powers of entry This clause sets out the obligations on a person exercising powers of entry under clause 236 to provide notice to occupiers and, if required, identification on arrival. Provisions covering trade secrets and damages to property are addressed. Clause 238: Supplementary provisions as to powers of entry: Crown land Additional provisions for the exercise of the powers of entry under clause 236 when the land is owned by the Crown are contained in this clause. Advance permission must be obtained from the appropriate authority. Clause 239: Service of notices and documents This clause allows for the service of notices to be completed via electronic communication where the recipient has agreed to this. Provisions are contained for permission to be withdrawn and a list of notices to which this cannot apply is listed in paragraph (3). Clause 240: Information as to estates in land This clause allows a district council or the Department to require occupiers of premises to provide information to them on the owner, to enable them to serve a notice or other document on them. Failure to give this information within the stipulated timeframe is an offence. Clause 241: Information as to estates in Crown land This clause disapplies clause 240 when the land is Crown land. Powers are given to the district council or Department to request the same information as that in clause 240, and the authority must comply with this request. Clause 242: Planning Register This clause requires all district councils to keep and make available a planning register containing copies of the items listed, which includes all applications for planning permission. A development order may require the Department to populate the register of the relevant district council when an application is submitted directly to it, or it issues a notice under departmental reserved powers. Clause 243: Power to appoint advisory bodies or committees This clause allows the Minister to appoint bodies to assist the Department in any of its functions under this Bill. Clause 244: Time limit for certain summary offences under this Act This clause gives jurisdiction to the Magistrates’ court to hear complaints on offences relating to breaches of tree preservation orders and breach of condition notices if the complaint is made within 3 years from the time when the offence was committed or ceased to continue. Clause 245: Registration of matters in Statutory Charges Register This clause sets out the matters which are a permanent encumbrance on land or property and must be registered in the Statutory Charges Register. Clause 246: Directions This clause confirms that any directions which may or must be given by a district council or the Department may be withdrawn, varied or revoked by a subsequent direction. Clause 247: Regulations and orders This clause details the Assembly controls which will apply to regulations and orders under the Bill. Regulations under sections 153 and 154 must not be made unless a draft of the regulations has been laid before, and approved by a resolution of, the Assembly. Clause 248: Amendment of certain time periods in relation to enforcement This clause relates to the new 5 year enforcement time limits provisions contained in the Planning Bill and makes similar provision in relation to the Planning ( Northern Ireland) Order 1991 by means of amendments to that Order. Initially it was planned that the provisions setting the time limits for breaches of planning control to 5 years would be commenced with the provisions of the rest of the Bill and within a time scale to be agreed. This clause enables the Department to bring these limits into effect in a much shorter timeframe. This is achieved by amending the Planning ( Northern Ireland) Order 1991. Amending provisions are required to specifically adjust Articles 23, 24, 67B, 67F, 73 and 82 of the Planning ( Northern Ireland) Order 1991. Clause 249: Increased penalties for certain offences under the Planning ( Northern Ireland) Order 1991 Clause 249 raises fines from £30,000 to £100,000 for certain offences (relating to control of works for demolition, alteration or extension of a listed building and contravention of tree preservation orders) under Articles (Article 44(6) and Article 66(1)) of the Planning ( Northern Ireland) Order 1991. The clause also provides that the amending provisions of the Planning ( Northern Ireland) Order 1991, increasing fines from £30,000 to £100,000, do not have effect in relation to any relevant offence committed before the commencement date. Part 15: Supplementary Clause 250: Interpretation This clause contains interpretation provisions and defines a number of terms used throughout the Bill. Clause 251: Further provision This clause allows the Department to make subordinate legislation to give full effect to the Bill including transitional or transitory provisions and savings in connection with the coming into operation of any provisions. A draft of such an order must be laid before and be approved by resolution of the Assembly. Clause 252: Minor and consequential amendments This clause provides for the amendments set out in Schedule 6 to have effect. Clause 253: Repeals This clause provides for the repeals set out in Schedule 7 to have effect. Clause 254: Commencement This clause concerns the commencement of the Bill and enables the Department to make Commencement Orders. Orders made under Part 3 of the Bill shall be laid before and be approved by a resolution of the Assembly. Sections 85 and 126 come into operation on Royal Assent. Clause 255: Short title This clause provides a short title for the Bill. SCHEDULES Schedule 1 to the Bill includes detailed provisions in relation to simplified planning zones. Schedule 2 to the Bill includes detailed provisions in relation to mineral planning permissions. Schedule 3 to the Bill includes detailed provisions in relation to periodic reviews of mineral planning permissions. Schedule 4 sets out amendments to the Land Development Values (Compensation) Act ( Northern Ireland) 1965 Schedule 5 to the Bill includes detailed provisions which deal with the make-up and functions of the Historic Buildings Council. Schedule 6 lists the minor and consequential amendments necessary in the Bill. Schedule 7 lists the repeals affected by the Bill FINANCIAL EFFECTS OF THE BILL31. The Department takes the view that as a whole the proposals in the Bill will be cost neutral to the planning system. The new planning system will operate on the same basis as the current system i.e. a combination of income and non-income based funding. The proposals will result in the majority of staff engaged in the current planning system transferring to district councils, with a residual small group in the Department carrying out its continuing planning functions. It is expected that this transfer will not result in a net increase in overall cost. It is possible that through time the measures in the Bill may lead to overall savings in provision of the planning function, if efficiencies are realised by district councils as part of the integration of planning into wider council functions. HUMAN RIGHTS ISSUES32. The provisions of the Bill are not in the Department's view incompatible with the provisions of the Human Rights Act 1998. EQUALITY IMPACT ASSESSMENT33. Responses to the draft EQIA informed the Department’s view that the proposed Bill will not act unlawfully, unfairly or unjustifiably discriminate, directly or indirectly, against any sections of the community specified in section 75 of the Northern Ireland Act 1998. 34. An Equality Impact Assessment (EQIA) at a strategic level was undertaken and subsequently published in March 2010 as part of the Department’s Section 75 statutory duties in response to the Programme for Government (PfG). The Department has committed to developing a future monitoring strategy to assess the impact of the reform programme on users of the planning system to ensure that due regard for the need to promote equality of opportunity and regard for the desirability of good relations are mainstreamed within each stage of development and implementation of the reform programme up to and beyond 2011. SUMMARY OF THE REGULATORY IMPACT ASSESSMENT35. The Department gave businesses and a wide range of stakeholders an opportunity to comment on the partial regulatory impact assessment which accompanied the July 2009 consultation paper. The findings contained in the draft regulatory impact assessment are still applicable, as at this stage it is not possible to be precise regarding cost implications in detail as the exact nature of organisational structures into which the planning function will transfer are currently being developed under the local government reform process. The Department will prepare detailed costings as part of the operational implementation plan, which will be required as part of the commencement of the Bill. LEGISLATIVE COMPETENCE36. The Minister of the Environment had made the following statement under section 9 of the Northern Ireland Act 1998: “In my view the Planning Bill would be within the legislative competence of the Northern Ireland Assembly.” SECRETARY OF STATE CONSENT37. The Secretary of State had consented under section 10(3)(b) of the Northern Ireland Act 1998 to the Assembly considering this Bill. |
