COMMITTEE FOR THE ENVIRONMENT

OFFICIAL REPORT
(Hansard)

Planning Bill

26 January 2011

Members present for all or part of the proceedings:

Mr Cathal Boylan (Chairperson)
Mr Trevor Clarke
Mr Willie Clarke
Mr Danny Kinahan
Mr Alastair Ross
Mr George Savage
Mr Brian Wilson

Witnesses:

Councillor Jack Beattie	)	Northern Ireland Local Government Association
Councillor Arnold Hatch	)
Mr David McCammick	)
Councillor John O’Kane	)
Ms Catherine Blease	)	Northern Ireland Housing Executive
Ms Esther Christie	)	Northern Ireland Housing Executive
Mrs Maire Campbell	)	Planning Appeals Commission
Mr Trevor Rue	)	Planning Appeals Commission
Ms Laverne Bell	)	Quarry Products Association (Northern Ireland) Limited
Ms Diana Thompson	)	Royal Town Planning Institute
Mr David Worthington	)	Royal Town Planning Institute
Mr Ben Collins	)	Royal Institution of Chartered Surveyors
Liam Dornan	)
Ms Diana Fitzsimmons	)
Mr Bill Morrison	)

The Chairperson: (Mr Boylan):

Our first presentation is from the Local Government Association. I welcome David McCammick, chief executive of Antrim Borough Council; Councillor Jack Beattie; Councillor John O’Kane and Councillor Arnold Hatch. I have met you all before. I apologise for the fact that we are running late, what with the traffic and everything else. I will open it up to you, and then I will open it up to members for questions. Perhaps you can highlight the key points in your paper; that will leave more time for members to ask questions.

Councillor Jack Beattie (Northern Ireland Local Government Association):

We have it written down in some sort of order.

Thank you for seeing us again. Each of us will present one or two key issues that we want to highlight from our written evidence. The comments on specific clauses are in our written response. We are happy to answer queries on those comments, but we have decided to present our strategic concerns.

My first concern is timing. The Planning Bill is vital to local government and is another stage of a long policy development process. The Northern Ireland Local Government Association (NILGA) has facilitated local government to develop policy positions and responses since the beginning of the reform process and is keen that that process comes to satisfactory fruition. However, local government is deeply concerned by the time frame in which the Bill is expected to pass through the Assembly, and we need time to undertake a comprehensive and detailed study of the Bill.

Many of the reforms that are proposed in the Bill may be good reforms, but the extreme time pressure is hampering our ability to properly scrutinise and examine the implications of the legislation. That increases the risk that large parts of the legislation will need to be amended in the early stages of the next Assembly. Local government would value the opportunity to go through the Bill in greater detail, but time has not permitted us to do that.

We are consulting with the sector on how it wants to proceed, as the view has been expressed by many of our members and officers that the process of the Bill should be suspended until local government reform legislation can be introduced. Although it would be preferable to have a wider context in which to progress the Planning Bill, we realise that that may not be possible and that there is a very tight timescale. Local government does not believe that the legislation should be rushed and, if the Environment Committee shares that concern, proposes that, at the very least, a review mechanism should be built into the Bill as a safeguard.

NILGA is meeting on Friday to assess the strength of feeling on a potential suspension of the legislative process until the local government reform legislation is introduced. Of course, we realise that such a delay could cause consistency issues between this Assembly and the next Assembly and would impact on the reform programme for both planning and local government. However, a wider discussion within the sector is needed before we can give you a definite view on the proposed approach.

Councillor Arnold Hatch (Northern Ireland Local Government Association):

Thank you for the opportunity to present this evidence today. I will concentrate on resources and capacity, because there is a big concern about how much this is going to cost.

I want to highlight the principle of cost neutrality. In other words, the reforms should not cost the ratepayer any more money. The cost may be adjusted in terms of the regional rate and the district rate, but whatever that cost is, it will be coming off the regional rate and going on to the district rate so that, in total, it makes no difference to the ratepayer. That is the principle under which we have always operated: cost neutrality. We also need to build up the capacity of our members.

One of the main concerns about the whole programme of local government planning reform is about ensuring that the cost is neutral to the ratepayer. We are not satisfied that sufficient funding will be provided or that the new fees system will be appropriate or adequate to cover the cost of the service, once transferred. The service will not be self-supporting through fees, because that would make fees far too high for people to operate.

We are not sure that satisfactory work has taken place to estimate costs or to develop a business case. Fees, even if increased, will be insufficient to cover costs. We note that enforcement and local government planning will not be covered by fees and are left to wonder how those services will be paid for.

Of additional concern are the proposals for compensation arrangements. Local government totally rejects clause 184(7), which leaves councils liable for bad decisions by the Department. That is reminiscent of the Northern Ireland Water situation and the gritting of footpaths; an attempt was made to put liability on councils. We reject that entirely. We feel that, if we do the job sufficiently well and within the rules and parameters, we should not be liable for bad decisions that may result from policies set by the Assembly.

NILGA argues strongly that the transfer of this service should be cost neutral to the citizen. Although we would value discussions with the Department and the Committee as to how cost neutrality will be assessed, we are not sure that there will be an independent assessment of those costs. That is because we have been trying since March 2009 to elicit good, reliable figures for costings from the Department and the Planning Service.

We are also concerned about the potential implications of the Department of the Environment’s (DOE) budget plans, given that £4·9 million of savings have been identified as coming from planning, in addition to the severe reduction in staffing that the Planning Service experienced this year. Local government would value an early conversation with senior departmental officials on the funding of planning. Much greater transparency is needed on the finances of the planning system. We need an evidence base as a matter of priority to ensure that we build a sustainable system.

Preparation for the transfer of planning to councils needs to take place. As part of that, a huge capacity-building exercise is needed for elected members, officers who will transfer and existing local government officers to develop understanding and expertise in running the new system. At the very least, a training programme and scenario role-playing events are needed, and it is not known where funding will come from to facilitate that necessary aspect of transfer. We are aware that the Minister has suggested pilot programmes to start in April, but there is no detail on those as yet and there is substantial concern about the governance of such pilots.

Councillor John O’Kane (Northern Ireland Local Government Association):

Local government considers governance to be a key issue in ensuring confidence in the post-transfer planning system. There are two aspects to our concerns. First, there is the structural governance that will cover decision-making responsibilities, structures and accountability of officers and members, which involves things like the change from six district offices to five area offices, etc. The second aspect of concern is the behavioural governance, to cover a mandatory code of conduct, ethical standards and other safeguards. Incidentally, a mandatory code of conduct was to have been introduced by 2011. That, of course, did not happen, although some good work by engaging with policy development panel (PDP) A. An interesting part of that was that there was a section in it that was to deal with planning. That section is blank — it never happened. I can let members see that if they wish.

NILGA cannot overemphasise the importance of the new governance policy to local government. As I said, the document on local government reform policy proposals is out for consultation at the moment. That deals with all the governance issues of the new councils. If and when they come into being, there will be a section specifically on planning. Therefore, we cannot overemphasise the importance of the new governance policy, and we are deeply concerned about how the proposed pilots will operate from March or April this year, in the absence of appropriate governance codes and legal protections.

We are also concerned about the lack of clarity on the demarcation between the Department and the councils’ responsibilities, and how issues such as the development planning system and staffing responsibilities will operate should councils agree to work in clusters. There has not been enough engagement on those issues between local government and the Department. NILGA would value engaging with the Department to develop regulations, guidance and protocols to ensure that consistency in approach across local government is achievable and operational from the date of transfer.

We are unable to assume that such engagement will automatically take place, because all engagement with local government ceased when the strategic leadership board (SLB) ceased to meet in April 2010. The PDPs also ceased to operate from that date. We appreciate that there was meaningful engagement beforehand with departmental officials, but all of that has ceased.

More clarity is needed on the Department’s role post-transfer. It is very clear from this Bill that the Department will hold a great deal of power over councils and an ability to intervene in some areas of work, even though councils will be financially responsible for the service. Again, engagement with the sector is necessary to obtain clarification on these issues of concern.

We must ensure that the legislation strengthens democratic accountability and that councils are the driver within the new system. Some kind of check on departmental powers is required, particularly given the financial implications for councils. We ask the Committee to ensure that Planning Service determinations, rulings and their outcomes, and any associated liabilities, will be retained as the sole responsibility and liability of the Planning Service as a government department. We believe that that can be enshrined in legislation. It is worth noting that, in the handover from councils to the Planning Service in 1972-73, liability for incomplete planning determinations was passed on to the service.

In conclusion, we welcome and look forward to the opportunities for place-shaping, etc that the return of planning powers to councils will give us, but we have a lot of concerns, particularly about the lack of meaningful engagement over the past year or so in the run-up to this. We think that the local government reorganisation Bill should have come before this Bill. That would include all the governance issues that I have raised.

Mr David McCammick (Northern Ireland Local Government Association):

I have been asked to speak on some of the implementation issues, and I will pull together some of the things that have been said.

Local government is pragmatic and capable of implementation when provided with the relevant information and resources. That does not appear to be readily available for the Planning Service at the moment. We are responding in a partial vacuum, and, as a result, we may have more questions about planning than answers. We believe that development planning should be integrated with the local government reform, particularly the community planning provisions, but they will be provided for through separate proposed legislation — the reorganisation Bill, which is currently out for policy consultation.

How do we deal with the queries about the integration and implications between the Bills, when the two key pieces have not been launched together? That is particularly important in respect of the governance issues, their arrangements and structures that Councillor O’Kane has just spoken about. Local government may have its own view on some structures, particularly delivery structures.

I will talk a wee bit about communication on the development of this between the parties, and by parties I mean the sector and the Department. During communications about plans, facts and figures and so on, it helps to develop an understanding and confidence about what is planned. It is difficult to sustain confidence in the absence of that. For local government to confidently consider the implementation of a new planning regime, a number of things need to be dealt with initially, such as information about the old and new finance and funding models for the Planning Service. We are looking at that from a point of view of risk to the council.

There are questions about human resources (HR). What is the staffing complement, the structures, skills, expertise, location, contractual entitlements and industrial relations issues? I could go on; HR is very complicated. What about IT hardware and software? What are the specifications and performance requirements, and what are the contractual considerations there? Clarity is required on those issues and others, including assets, office accommodation, contractual issues around which we have no information on, and generally speaking, liabilities.

What are the transitional arrangements to move to this new regime? What is the time frame, and is there a transfer plan or a project plan for the new way of development? That is important when you remember that we are concerned about the current status of area planning systems. Plans in council areas are at different stages; mine is in critical need of a plan, as it is way out of date. There needs to be some clarity about how existing plans will merge into the new planning regime, and how local policies are going to integrate into regional policy. The regional development strategy (RDS) has just been released for its 10-year review consultation, which is a material consideration.

We are worried about the practicalities of introducing a stringent new regime into a system that is in serious arrears. We suggest that additional resources are put by the Department into the area planning team in the run-up to transfer to ensure that plans are moved on a bit, but we acknowledge the economic conditions that we are operating in.

There are other issues, including developing the understanding and demarcation between the roles and responsibilities of councils and Departments, especially around the powers of intervention and scrutiny. There are other implications that have been mentioned in respect of the Planning Bill and the compensation requirements, and clarification on what that might mean for local government.

As a council chief executive, I am required to produce an annual governance statement, supported by various papers and business plans, covering the affairs of the organisation at the time, including risks. I am unable to make an informed judgement about the implications of the transfer of planning to councils, due to the inadequacy of the relevant business information. A due diligence exercise is required, and for that I need information.

In respect of capacity building, we do not have the skills and understanding required to deliver the service at the moment, which makes it difficult to design delivery arrangements suitable for councils. Therefore, regard must also be given to a new role for local government and council officers and the cultural implications of that.

In conclusion, we welcome the proposals, but we need more time to get the sector to a position where there is sufficient confidence to take on and deliver an acceptable standard of service based on the new regime. With the right resources and arrangements designed in partnership between the sector and the Department, I am confident that local government can deliver a new, improved planning service. We are not familiar with the legislative process and how to set back the Bill, or whatever the proper term is, and we are not rejecting it. We simply want more time, and we want to consider it in the context of the reorganisation Bill.

The Chairperson:

OK. Thank you very much. On the Floor of the House, all parties agreed to take the Bill on board, and it has now come to the Committee. We have a process to go through, and we will report on it. Then the Bill will go to the Floor of the House, and it will be down to the parties what decisions can and will be made. Therefore, the Committee needs to take on as much information as possible to try to influence the outcome of the Bill. There is no doubt that there are some good parts to the Bill; it is clearly evident. However, from the responses that we have received, there are a lot of questions to be answered. NILGA and many other organisations have raised a number of issues.

For clarification, we propose to take all the points on board, and we will ask the Department to respond before we make any decisions. As you know, there will be an opportunity through the clause-by-clause phase to change and ask questions.

With regard to your presentation, I agree that timing is an issue, but there is a process to follow through. I will ask the Committee to support me in respect of a review, whether it is a two-year review or a transitional period or whatever. We will ask the Department to ensure that there is a review and to see how it will operate and how it will be implemented. I do not think that members will have any issues or concerns about that, and I am sure that we will get support for that.

You also mentioned the lack of communication in respect of the planning issue. Our understanding is that until the governance arrangements are in place, the Bill will not be implemented, which is fine. You said that we should have had the governance in place before the planning.

No problem; you can come back to us on whatever we need you to.

You mentioned the pilot schemes. The Committee is asking the Department about its proposals for the pilot schemes. Does NILGA have any indication about or information on those schemes?

Cllr O’Kane:

Absolutely not. At one stage away back, I think that three pilot schemes were in operation. I do not know whether those are the three that will come about. There have been so many changes since then, such as those in the Planning Service, and the three pilots were mooted about a year ago. I do not know what they are now or how they could run without governance arrangements.

Cllr Hatch:

That illustrates the lack of communication that exists. As an organisation, we should know where it is proposed the pilots will be run, how governance arrangements will be tackled and whether we will use the principles that are used for other governance issues. Those principles are fairly good, because they safeguard minorities and so on.

The Chairperson:

Mr Kinahan:

Thank you for your presentation. We have a mass of information to raise and follow up. However, my concern is that we are trying to implement this too fast. This is the first of five questions. Given that we went slowly and did not get anywhere with the RPA, do you believe that we could do this better if we were to do the best that we can now and put in the structures that we had for the RPA, but condense it into a shorter time frame, such as six months? The bulk of the work would then go to the new Assembly. Is it manageable, and would we be doing it better if this were the first task of the next Assembly, assuming that the next Assembly, the Minister and the Department will want to take it through?

We seem to be going round in circles about the resources. We all know that the way that it is coming at us means that we need more resources. Councils have a whole lot more to deal while they are dealing with this. From your end, is there any way that we could get a best guess of what it would cost, even if a few councils told us, so that we would have something to work with both ways? We will push the Department if we can one way, but we need some guidance from the other side

You said that you thought that the review of public administration (RPA) or local government reorganisation should be in place first. That again pushes me back to my first question of whether we should wait until the reorganisation of councils was done. You mentioned liability and governance. As the Department seems to have a mass of power, do you have any suggestions as to what sort of checks should be put in place?

Finally, do you have anything to add that we have not touched on already? Is there an extra mechanism that we should put in place with the strategic leadership boards (SLB) or policy development panels (PDP) if we were to try to do things quickly? I have asked a mass of questions, and I know that we could discuss the matter for ages.

Cllr Beattie:

We are happy with the Bill and do not want to lose it. As the Chairperson said, a review will be built into the process, which will please some of us. You referred to the fact that a council may give permission for something to go ahead, but the Department decides to put a stop to it. Who would pick up the bill for that decision? Would it be the council, or would it be the Department, because it had decided that the project in question should stop? Also, when the Department intervened, should it have done so earlier? There is also the matter of the power that the Department has over local government. All those things need to be looked at in more detail.

Mr McCammick:

The cost issue is difficult, and we have been asking for information on it for a couple of years. To some extent, it is not helped by the fact that local government and central government account for things differently. I have experienced some of that, as my council is looking at the possibility of a business plan for planning because we are so badly out of date. However, that is only part of the formula. We are looking at ways of bringing forward part of the new regime, although not all of it. We need information from certain services.

Cllr Hatch:

Community planning is a huge issue, and different people have differing definitions of what it is. The expectations that everybody, including councillors, has of community planning are away up there somewhere. The requirement to engage with the community is also a serious issue that has to be addressed.

The Chairperson:

I know that, and we will. I am mindful of the time and that we are going over issues that we have talked about already. We will ask the Department about the pilot schemes. There have to be clear pilot schemes, but the key to all that is the review period and how that is rolled out.

Mr Savage:

Thanks for your presentation, gentlemen. All the delegations that I have heard present evidence to the Committee have welcomed the proposals. I am speaking now as a councillor on Craigavon Borough Council. When I joined the council, all the councillors were looking for more power. Now that power is within our grasp, we have to realise one thing, which is that with power comes responsibility.

I am mindful of the question, but we are getting into the specifics of the Bill. The issue is that councils, like everybody else, will have to adhere to planning policy statements (PPS), area plans and the regional development strategy. That is all in the criteria. I do not mind the question being asked, but I do not want to get into the specifics, because there is no way that any council can tell whether it is taking 80% or 60%.

If you have enough copies, please send them around.

Ms Christie:

It is a slightly more condensed version of our submission, which might be helpful.

Thank you very much for the invitation to give the Housing Executive’s response to the Planning Bill. There are detailed comments and summarised recommendations on the Planning Bill in our handout. In view of the time constraint, if you do not mind, I will try to focus on our nine recommendations, which are listed in the handout. If I have any further time at the end, I may come back to some of the supporting comments, if that is alright with you.

The Housing Executive is generally content with the majority of the proposals in the Planning Bill. Our comments relate to Part 1 of the Bill, which deals with functions of the Department of the Environment with respect to the development of land; Part 2, which deals with local development plans; and Parts 3 and 4.

In the handout, you will see an outline of the Housing Executive’s role as the strategic housing authority and as a key stakeholder in all levels of the planning system in Northern Ireland. The Housing Executive looks forward to developing a close working relationship with the new planning authority in Northern Ireland, particularly in the areas of community planning, local development plans and planning application matters.

In general, we are content with Part 1. We offer supporting comments on Part 1 in the handout; I do not intend to dwell on those now.

Our first recommendation relates to Part 2, which deals with local development plans. The Housing Executive would like clarification on clause 6(3). That clause states that, where there is a conflict between two plan policies within one development plan, the previous adopted plan should be referred to for the resolution. That may not be appropriate; it may be preferable to defer to the Department to resolve any conflicting matters. We have some details of that in our submission, which I can return to if you would like.

The second recommendation on Part 2 is on clause 8(5), which we would like to see amended. That clause states that the council must take account of the RDS when preparing the plan strategy. Our view is that it would be preferable to retain the requirement for development plans to be in general conformity with the RDS.

Clauses 13 and 14 legislate for the council to review and revise local plans at such time as the Department describes or when the council deems necessary. Our third recommendation is that a standard time frame for the lifespan of a development plan and plan review would be preferable, particularly to stakeholders, who should then be expected to engage in the development plan revision process.

Fourthly, the Planning Bill does not seem to require a statutory link between the community plan and the development plan. In England and Wales, according to the Planning and Compulsory Purchase Act 2004, there is a duty that the:

“planning authority must have regard to— …

(f) the community strategy prepared by the authority”.

The Housing Executive supports the inclusion of such a clause in the Planning Bill, to ensure that any community strategies are closely tied-in to the development plan process.

Moving on to Part 3 of the Bill, which is about planning control, our fifth recommendation is around clause 24(2), which states:

“Where planning permission to develop land has been granted for a limited period, planning permission is not required for the resumption, at the end of that period, of its use for the purpose for which it was normally used”.

The Housing Executive’s view is that that clause is widely open to interpretation, and we feel that further clarification is required.

Our sixth recommendation is that we feel a definition and further details of what constitutes local and major developments should be set out in regional policy, possibly in the review of PPS 1. The Housing Executive would like to highlight that an agreement was made with the Planning Service that planning applications for social housing would be defined as major developments, and would, therefore, have pre-application discussion and performance agreements, which would apply to all social housing applications. We would like the Department to confirm that that agreement is still in place and will be addressed in secondary legislation and policy guidance.

Mr W Clarke:

In some area plans, land is zoned for social housing and for mixed tenure. You spoke about land banking, but do you think that there is an opportunity to include provision in the Bill for capping an amount, say 25% or 30%, of that land at a lower rate for social housing, so that there has to be some social housing? There is a stigma around it; I have found as an elected representative that there are a lot of objections to social housing, just because it is social housing and for no other reason. People have bought homes in an estate and do not want social housing beside them. It is different from in mainland Europe where most people rent their homes, but there is this culture of buying homes in Ireland. Do you think that there is an opportunity to say that of all zoned land, a certain amount must be made available for social housing? I know that there is affordable housing, but I want to draw a distinction between them.

Also, in relation to land banking, you mentioned a five-year development period. I would welcome that as well. Would you like to see a situation where the Housing Executive or housing associations would have first option of taking that land? Perhaps they could buy it at a certain value.

Ms Christie:

To take the first question, it is our understanding that the aim of the regional development strategy was to produce mixed and balanced communities throughout Northern Ireland. We feel that the PPS 12 housing settlements policy was one of the vehicles for ensuring conformity with the RDS and the delivery of that objective, which is very important. Certainly, draft PPS 22 may help that and may include reference to a percentage allocation being given over to social or affordable housing, as Mr Clarke suggested. However, if development plans are to be able to deliver the aims of the regional development strategy and enable people to live in a mixed and balanced way, there need to be measures to address and deliver that.

Therefore, PPS 12 housing settlements was one aim. Perhaps, PPS 22 might help establish that as well. However, the planning system exists to try and deliver the regional development strategy's aims and objectives, which are, effectively, to have a balanced and mixed community. There should be no ghettoisation.

Mrs Maire Campbell (Planning Appeals Commission):

It is my first time before the Environment Committee, but it is not my first time before a Committee.

The Chairperson:

No problem. I was referring to just the Environment Committee. Please make a presentation, after which members will ask questions.

Mrs M Campbell:

Thank you for inviting the commission to attend this session on the new Planning Bill. As I am sure that everyone is aware, the commission is the independent appellant body in the planning system. That position will not change with the review of public administration and the transfer of planning powers to local councils. We have a range of statutory functions: to decide appeals; and to hear and report with recommendations on a range of matters referred to us, mostly by the Department of the Environment. Those include objections to draft development plans and major planning applications.

I intend to refer briefly to some of the comments in my letter to the Committee about the Bill and then respond to any issues that members want to raise, if that is OK with the Committee.

The Chairperson:

That is fine.

Mrs M Campbell:

I will make reference to matters referred to the commission. There are a number of instances of those throughout the Bill, but I will refer in particular to clauses 10, 16, 26 and 29, which deal with examinations into development plans and public inquiries and hearings into major planning applications. To date, only commissioners of the Planning Appeals Commission have conducted such examinations, inquiries or hearings. We have reported to the Department of the Environment, which makes the final decision about the plan or application. The Bill proposes that the DOE should be able to appoint other persons to do that work. I have queried whether that is appropriate, whether those people would be independent and whether the examination, inquiry or hearing that they conduct would be fair and independent. That is because the other persons involved would be appointed by the DOE, and the Bill retains a significant role for it in adopting new development plans and deciding major planning applications. It also has other functions throughout the Bill.

We have also said something about submission notices, which are addressed in clauses 43 and 44. They are a bit like enforcement notices but require the submission of a planning application if something is built or the use of a building is materially changed without consent. The DOE policy statements include that as an aspect of enforcement. For that reason, it should be included in Part 5 of the Bill, which deals with the whole topic of enforcement.

However, we have a further point about submission notices. The grounds of appeal against a submission notice are limited, compared with the grounds of appeal against an enforcement notice. Someone who gets a submission notice cannot argue that they should not have got it because they are not the owner or the occupier, nor can they argue that the notice was not correctly serviced.

The most critical factor is that the person can only argue that the matters in the notice do not amount to development. What constitutes development is explained in clause 53. In addition, the Planning (General Development) Order 1993 permits a person to, for example, enlarge or improve their dwelling house or erect a building on their site within their curtilage. If a person is a farmer, the Order permits him to erect certain agricultural buildings. Those are all subject to specified restrictions. If his building is within those specified restrictions, what he has done is development, as defined by clause 23, but it is permitted development under the Order and he does not need to submit a planning application for it because he has express consent for it.

However, if a person is served with a submission notice about such a building, he cannot appeal to the commission on the grounds that what he has done is permitted development. He can only argue that it does not amount to development. We have had a number of appeals on that point. We pursued the point at a judicial review application and lost before the courts. That problem should be rectified to stop people’s only recourse being the possibility of an expensive judicial review. People ought to be able to argue, in response to a submission notice, before the commission that they do not need to submit a planning application for the development, because it is permitted development under the Planning (General Development) Order.

We have also said something about clause 75, which deals with planning agreements. A planning agreement is required to ensure that a developer does or does not do something that could not be covered by a planning condition attached to a planning approval. It is an agreement between the developer and the DOE, and it takes a very long time to complete. For example, one took four years after an appeal.

If developers could draw up unilateral obligations, they would be volunteering to do something to facilitate their developments. If developers submitted unilateral obligations to the DOE, for applications, or the commission, for appeals, the long delays in negotiating and drafting agreements could be avoided, which could speed up the process of delivering appeal decisions.

The final issue that we said something about was costs. The Bill contains no provision for applications for costs in an appeal context, so parties have to bear their own costs. However, applications for costs could arise — and this is the situation in England and Wales — where one participant in an appeal has been put to unnecessary expense by the unreasonable behaviour of another. The provision applies in GB and the Republic of Ireland. We suggested it because we thought that it would be an important restraining influence on a party’s behaviour in an appeal, and encourage all to approach appeals in a reasonable, cost-conscious manner.

If the Bill were to make provision for cost applications, those would be considered by the commission, as in England and Wales and the South of Ireland, and they may be successful if, for example, a proposal were to be amended or partly withdrawn at the last minute or if an additional reason for refusal was to be suggested at the last minute. Those are the main points that I want to talk about.

The Chairperson:

You are very welcome. I wish to seek some clarification. Inaudible due to mobile phone interference. Obviously, there is concern about how the four- and ten-year rules help you, as regards enforcement. It is a problem. What other way could we deal with that? Obviously, you are well aware of the four- and ten-year rules, because they come to council a lot in relation to enforcement. What exactly are you saying?

Mrs M Campbell:

The Chairperson:

I agree. So long as it is consistent, that is all that I am saying. But what we are teasing out in this —

Mr T Clarke:

Chairman, if you do not mind my interrupting you, I would like to make a point about that. Like you, I have been at a few Planning Appeals Commission hearings, and there is something that I have always found strange about them, particularly when I consider the bit in the submission about the Bill’s omission of a provision on costs. Sometimes, applicants bring evidence late in the day that the commission will consider. I have always founds that strange, because that can actually change a decision.

I sat in on a recent case where that happened. If the evidence had not been allowed, it would be fair to say that the Planning Appeals Commission would have found in favour of the Planning Service. However, the late submission was allowed and accepted, and it actually changed the decision. Nevertheless, I welcome your suggestion about a provision on costs, because I think that that would be a very useful tool. It would prevent some cases from going to the PAC and would prevent the Planning Service from pushing people to that expense and prolonging applications. The only bit that worries me is that late submissions are sometimes accepted.

The Chairperson:

We can only use our own experiences as examples. In one case, an application was turned down because of a lack of integration. However, by the time the appeal came round and we went out to look at the site, the site had been substantially changed. I am only using that as an example.

What are saying is that we want to have a process where applications are properly assessed. Obviously, the Planning Appeals Commission goes through that process and does that body of work. However, I do not want it to be an exercise where people present evidence but do not actually get an opportunity to present a strong and robust challenge to the system in the proper way. It comes back to the third-party right-of-appeal issue. That is all that I am saying.

Mrs M Campbell:

Certainly, commissioners are trained to be investigators, and they play that role. They do not merely sit and listen to evidence. Rather, they investigate the evidence and pursue the issues with all parties involved in an appeal. They then apply their expertise and experience to the issues presented in the appeal and make a judgement after having gathered all the information, including their own input. We want to ensure that that system is as rigorous as possible.

The Chairperson:

That is fine, Marie. However, we, as public representatives, want to ensure that applicants are being properly represented by those whom they pay to represent them. In the past, we have seen exactly what representation people are getting. People are going down the road of appeals, which costs them a substantial amount of money. We need to look at that as part of the whole process.

Most of those who have responded to the Committee raised that as a problem. It is fine saying that you look to the regional development strategy, area plans and bottom-up planning policy statements, but that issue has been raised and we may need to look at it.

It could also apply in instances where the planning authority suddenly decides at the last minute that it had better have a land contamination survey, when it has not been mentioned before. If it were an issue, it should have been mentioned before. It works both ways, and if the planning authority introduces an additional reason for refusal at a late stage.

It is all about parties revealing their hands earlier in the process, rather than trying to wait tactically to try to catch out the other person. Planning appeals do not work like that anyway. They are about gathering the information and making a decision. Tactics do not really work because we have to find the information anyway.

Mr W Clarke:

Dead on. Thank you.

Mr T Clarke:

Is it not more than that? Those are very extreme examples. Most of us have experience of where planners try to make a decision at an early stage that they do not want a particular application to succeed. It may be something more minor, a house, a bungalow or whatever it might be, and the Planning Service puts the applicant to the expense of going to the PAC. I have seen that often, and I am sure that other members have seen it in council. Perhaps the majority of people withdraw, but a stubborn applicant will decide that he will go ahead because he has the money to pay an architect the £2,500 or £3,500 to get it to PAC. The figures are sometimes staggering. Many of the appeals are won. Planning Service deliberately pushes people right to the wire to get them to withdraw or to see how many of them are prepared to go to the PAC. You have outlined very extreme cases where huge amounts of money are involved, but other people are put in an invidious position where they have to put up their money to take the challenge.

I enjoy seeing the figures from the PAC. At certain times of the year, you can have a third of decisions being overturned, which suggests that the Planning Service does not necessarily make the right decisions. If there were more checks and balances, your workload would probably be less.

Ms M Campbell:

I used the extreme examples to illustrate where costs can arise. They apply where there has been unreasonable behaviour and unnecessary expense. That is the way they are assessed. The figure of appeals allowed runs at about 30% to 33%, which is commensurate with the figure in England and Wales. It is around about the same there. There have been times when it has been higher, depending on policy issues.

Costs are not usually awarded simply because the Department is unsuccessful in determining an appeal. It has to be unnecessary expense, as a result of unreasonable behaviour. It is not a pure winner-takes-all situation.

Mr T Clarke:

It should be.

Ms M Campbell:

Well, that is a point of view. I am just saying what is the system in England, and that is the system I advocate here.

The Chairperson:

It still brings us back to the agent issue. There are more issues to be brought forward there. It is ridiculous that we have not dealt with that at all in this Bill. Some of the applications being put in have been absolutely ridiculous.

Mrs M Campbell:

I will allow you to take that up with the agents.

The Chairperson:

Having better agents obviously means less work for you. Thank you very much for your presentation. We will now take oral evidence from Laverne Bell of the Quarry Products Assocation (QPA). You are very welcome. You have been before the Committee on a number of occasions, so you know the process.

Ms Laverne Bell (Quarry Products Association (Northern Ireland) Limited):

On behalf of our members, thank you for giving QPA the opportunity to respond to the Planning Bill. Planning is vital to our industry, so we are very interested in the transfer of powers to councils. Our industry has a part to play in helping to deliver planning reform by submitting high-quality applications informed by community views. As I go through the clauses that we comment on, I will be optimistic about adding in the after-uses of quarry applications. Given the number of clauses, I will only deal with the key areas of concern to the minerals industry.

There should be a definition of “sustainable development”. We have seen that in many Departments, in council strategies and even in the industry’s own strategies. Some people have different definitions, and that should be added to the interpretation section of the Bill. The definition in the Government’s sustainable development strategy could be used.

Clauses 6 to 22 relate to local development plans. We are concerned that local development plans do not include minerals or their safeguarding. We spoke to the Committee before about a minerals mapping programme for Northern Ireland, to analyse supply and demand, and zoning to safeguard minerals. Areas have been zoned as areas of no constraint in previous local development plans. That did not look at where our future minerals supply will come from.

We are pleased to note that a minerals mapping programme is listed as an environmental programme in the DOE budget. However, we are concerned that funding has not been secured for that. We will make the same point at the regional development strategy review. We suggest that an amendment be made for mineral mapping and safeguarding to be included in each council’s local development plan. It would also be beneficial for neighbouring district councils to work together on local development plans.

We support clause 27 and clause 28 but ask for a definition of “community”, because it can sometimes be difficult to identify who the defined community is. That should be in the interpretation section of the Bill. Under clause 32, there are no permitted development rights for the minerals industry in the general development order. We have reported on previous consultations on this. We would like assurances that that will be in the Bill.

I turn to planning applications. In clause 40, there is no mention of performance agreements and pre-application discussions. That is a core element of planning reform and something we supported in the consultation paper. Performance agreements should be in place before submission of an application. That is a central part of pre-application discussions. Again, that is down to the front-loading of the development management system. We suggest that performance agreements alongside pre-application discussions for major and regionally significant projects be included in the Bill.

On determination of planning applications, we have commented under clause 45 and clause 52 on conditions that are applied to planning approvals. We have brought that up with the Planning Service before. We believe that it would be good practice for the Department and councils or the planning authority initiate a practice of informing developers or agents of the draft planning conditions that are imposed before they stamp and approve the forms. That practice would be beneficial to the industry and to the Department and councils in processing mineral planning applications, as it would highlight any unworkable conditions before the decision notice is issued.

We have evidence of industry having permissions approved with unworkable conditions. Asphalt plants have been given approval with conditions of working hours of 7.00 am to 7.00 pm. You will be aware that that is not commercially viable for the industry. An asphalt plant would possibly have to open at 5.00 am for lorries to be going out the gate at 7.00 am. Those conditions have sometimes been applied as a mistake by a planning officer. It is difficult for a client to go back and take it out. In some cases, the company might just decide to leave it there. Therefore, we are suggesting a clause to provide that the Department or councils consult the developer on conditions prior to planning approval. However, we recognise that the planning authority is the decision-maker.

On clause 53, with deals with the power to impose aftercare conditions on the grant of mineral planning permission, I will give you a few paragraphs to back my suggestion that nature conservation be added. The three stated aftercare conditions in the current legislation and in this Bill relate to agriculture, forestry and amenity. I am proposing that nature conservation should certainly be added either alongside amenity or as a fourth aftercare condition.

I am sure that you are all aware of the significant opportunities that this industry can give in creating new habitats and protection of species. The industry is doing that, and it has been put forward in restoration objectives, but there is an opportunity to have it in legislation. Therefore, I have suggested that nature conservation be added as a fourth aftercare condition, and that a definition of nature conservation be added to the interpretation provisions. We believe that the developer should take advice, whether from the Department of Agriculture, the Forest Service, the Environment Agency, councils or a relevant NGO on such matters under those aftercare conditions. Again, we are looking at local priorities in those areas. In clauses 53 to 55, on restoration and aftercare, steps may be specified in aftercare conditions. Again, a natural succession is regeneration. It is an opportunity to create biodiverse habitats on site. That should be added.

We have comments on duration of planning permission. Again, the comments on the clauses relate to changes in permissions, conditions or modifications. We have stated that if any changes are made, it should be done in consultation with the developer. If any conditions are made in error by the planning authorities, there should be no fee to change them because that is their mistake. We raise again the issue of consultation prior to approval of imposing conditions.

Good afternoon, and thank you for facilitating our request to provide further evidence in support of the Royal Town Planning Institute’s written observations on the Planning Bill. I am the incoming chair of the local branch of the institute. With me is David Worthington, who is a past chair and a current member of our policy and practice committee, which meets quarterly at our London headquarters.

I will deliver the principal presentation, and, following that, David will assist me on any points of clarification or additional information that the Committee may seek.

You probably know that the RTPI is the leading professional body for spatial planners in the United Kingdom. We are a charitable organisation that has the purpose of developing the art and science of town planning for the benefit of the public as a whole. We have over 20,000 members, 500 of whom reside in Northern Ireland. They are drawn from the Planning Service, local government, the public sector, the community and voluntary sector, and the private sector. The reforms are of great interest to our members, who work in and use the system on a daily basis.

As a general proposition, the RTPI supports the reform of the planning system in Northern Ireland and the devolution of planning powers to the lowest level of government. On the whole, we welcome the Bill. Rather than repeat the content of our written response, however, we want to use our time this afternoon to explain in more detail our main concerns with the Bill as it is presently drafted.

We have identified four topics to discuss: the acceleration of the process and its consequences; whether the reform will be adequately resourced; the timing of an introduction of the plan-led system; and the role of the Department. The Committee will also be aware that the RTPI is taking part in the stakeholder event tomorrow, when we will address three of the four topics that you have invited some comments on.

As we indicated in our submission, we are uncomfortable about the Bill’s being launched in the mouth of the Christmas break. We are also uncomfortable about the Bill’s anticipated expedited passage in the Assembly’s current term. The Bill is a complex document, and our members are concerned that the amount of time that has been set aside for its scrutiny, particularly at Committee Stage, could well be construed as an underestimation of its intricacy and of its importance for the future of Northern Ireland. That said, the institute fully appreciates the need to reform the planning system in Northern Ireland. Reform is overdue, and we support the current impetus and enthusiasm for delivering positive change to the system.

It is unfortunate, however, that the timetable appears to be dictated by the looming dissolution of the Assembly in the spring. The institute supports openness and transparency in the process and is keen to avoid any perception that the acceleration will undermine meaningful consultation with the planning profession. We do not want the acceleration to result in an underdeveloped framework that stymies, rather than stimulates, sustainable economic growth and that lacks public confidence.

There are two particular issues of concern. The first is the reliance on much subordinate legislation and many other regulations to give effect to the proposed reforms. We do not see any commitment to their production and content or to a timetable for implementation. Our legal associates, who are also members of the institute, tell us that the detail may well be unworkable in our particularly litigious environment. They raised concerns about how the drafting will stand up to scrutiny. They urge that careful attention be paid to the final drafting and wording of clauses.

Secondly, it is far from clear how or through what mechanisms the new legislation will be delivered by newly created planning authorities. There seems to be a lack of integration between the planning reform and the parallel reform of local government and the transitional arrangements. In our view, the Committee must seek clarification on both points from the Minister.

Our second topic is about resourcing the reform. Our members have highlighted the need for the reform to be adequately resourced. The issue is not just the financial consideration; it raises personnel and staffing issues, as well as the capacity of councillors to embrace the full suite of planning powers that are to be devolved.

As far as the training and education of councillors is concerned, the RTPI can provide significant assistance and can offer links to other councillors in the UK through our politicians in the planning association, which is administrated through our headquarters. We are keen to take a proactive and participatory role in the development of professional training sessions for planners and councillors, and we intend to raise the matter directly with the Minister in the near future.

It is clear to us that the proposals will require major cultural change and additional funding. The institute fully understands the budgetary pressures that are on the Department, given the significant fall that there has been in application receipts over the past 18 months. For that reason, we accept that it is necessary that a review of planning fees takes place. However, we were disappointed that the consultation paper that emerged late last year did not contain a comprehensive overhaul of fees and that wider funding issues remain for future consultation. The institute has already warned that planning fees should not be the sole source of funding and that there must be a public funding base that might come through rates, for example. We think that the review should be completed swiftly so that a situation of certainty and stability in the planning profession and the wider development industry can be created. In the meantime, we are certain that the Department must keep a balanced view of efficiency savings, the maintenance of a professional and fit-for-purpose service and the ability of a development management to levy fees to match costs without jeopardising the potential for economic recovery. If fees are to be increased, our members are certain that that must be matched by a quality service for its customers and a service that supports economic recovery.

The institute has another concern in that area because of the loss of professional expertise in the Planning Service through redeployment and the very recent announcement on potential future redundancies. The institute is already on the record as having made the point, and we would like to restate it, that it is anxious that the haemorrhaging of the professional planners carries significant risks for the operation of the planning system in Northern Ireland. It has inevitable consequences for the delivery of the priorities of the Northern Ireland Executive and the Programme for Government. The Committee must seek assurances from the Minister that individuals who exercise planning powers are properly trained, that all units and functions of the new planning hierarchy in Northern Ireland are adequately staffed by professional and administrative staff, and that there is adequate funding that does not rely on receipts that come from applications or other revenues that are generated solely by the system’s users.

The issue of resourcing takes us to our third point, which is to do with the timing and introduction of the plan-led system. We note that there is some inconsistency between clause 3 and clause 25. One requires the Department to take decisions in accordance with the plan, and the other requires the council to have regard to the development plan. The Committee will be aware that previous resourcing difficulties in combination with the external judicial proceedings have meant that preparatory work on updating and renewing development plans has largely ceased. The consequence is that, from 1 January 2011, we have only one up-to-date area plan that covers the two district councils of Ards and Down. That is about 8% of Northern Ireland, compared to about 19% of local plan coverage in England. The Department for Environment, Food and Rural Affairs has strongly criticised that figure.

It would be unfair and inequitable to expect newly formed local councils to take decisions on the basis of planning frameworks that were, in some cases, prepared almost 20 years ago in economic and other circumstances that were very different to those than exist today. Although the institute supports the introduction of the plan-led system, we are certain that its introduction must be held back to allow the new generation of local plans to be rolled out.

Our views are reinforced by the lack of detail on the new community planning framework that is also proposed. It seems to us that there are a number of unresolved issues with it, including the definition and identification of community; how it interrelates with the other elements of the area plan framework; how conflict is to be reconciled when policies pull in opposite directions; and how community plans will be timed and sequenced against the delivery of local plans. We consider that the presumption in favour of development should remain in the interim, although assurances must be sought from the Minister that the new suite of plans will be expedited following the devolution of planning powers.

We also wonder about the role of and relationship with the emerging regional development strategy review, which sits at the top tier of the policy hierarchy. The RDS was material to decisions on individual planning applications and appeals, but at draft and adopted stage, the area plans have a statutory requirement to be in general conformity with the RDS. However, that statutory requirement appears to be diminished in the Bill. We can find only two references to the RDS in the Bill. The first requires policy to be “in general conformity” with it, and the second requires local development plans to “take account of” the RDS. It seems to us that there is some uncertainty regarding the status of the RDS. Indeed, the 10-year review of the RDS confirms that the statutory requirement is under review. The Committee must seek clarity on the role of the RDS, because, without a clear strategic vision and guide, there is the potential for local authorities to focus solely on their own agendas, which will lead inevitably to long-term bad delivery and cause difficulties with balanced delivery.

Our final point relates to the Department’s role. We understand the need to retain some degree of control and oversight of the delivery of planning functions in Northern Ireland. However, our members feel that the Bill is drafted in an overcautious and inflexible manner that will deprive local authorities of the ability to freely exercise their planning functions. We urge the Committee to challenge those areas of unchecked and unnecessary departmental intervention, which must inevitably result in the duplication of manpower and resources.

The Bill provides for much departmental involvement in the area plan, for example, with its statement of community involvement, a timetable for review, the terms of such a review, or the revision to the plan. The Bill also allows the Department to prescribe the form and content of the plan and to refer it for independent examination. There is also provision for the Department to consider the independent report that comes back from the examiner.

It seems to us that the checks and balances that are built in through the intervention and default powers in clauses 15 and 16 are adequate to safeguard the Department’s position. We consider there to be significant replication between the development control and management function in the powers provided in clauses 26 and 29. It may well be that there is a timing problem between the Department’s determination for a proposal that is regionally significant or a major application. That would have a knock-on, delaying effect for the commencement of the 12-week consultation period. That must also frustrate development ambitions.

However, we support the schemes of delegation, which mirror the existing streamlined arrangements in the Planning Service. In fact, the Planning Service won an award with the RTPI in London. We are keen to see those arrangements retained in the new planning framework.

We welcome the proposals for the Department to set performance targets for local authorities. However, that must be about much more than naming and shaming. There must be some financial sanction for those councils that fail to determine their applications and to deliver their planning functions in a timely manner. In the same way, authorities that consistently achieve their targets must be rewarded. We consider such carrot-and-stick mechanisms to be enormously important in securing responsiveness, speed, simplicity and, most of all, deliverability. Those are important characteristics that ensure the professionalisation of the system.

To sum up, the RTPI welcomes reform. However, it seeks clarification, assurances and revisions on a number of aspects of the Bill, including the production of subordinate legislation; integration with the parallel local government reform; adequacy of resources; prompt roll-out of the new generation of area plans; and departmental intervention powers, which should be considered and appropriate.

Perhaps we should say people power.

I agree, and we have asked for the model. There was a time when applications were coming in and things were good in the Planning Service, and I can assure you that all the fees that were gained did not just go into the model or to cover staff costs; the amount of fees was well above that. Those fees went to the Treasury or somewhere else. We have to get a proper model in place.

Mr Worthington:

The Planning Advisory Service report might be of assistance with that.

The Chairperson:

We heard about the accelerated time frame, and we know that there is a good body of work to be done. We also know that we have an opportunity to change things during the clause-by-clause scrutiny. The devil is in the detail. You mentioned subordinate legislation, and we need to look at that. In addition, we were thinking of looking at a review period.

Ms Thompson:

Various parts of the Bill refer to regulations. What will those regulations say? When will we get a chance to comment on them? A lot of this is reliant on something else.

Mr Worthington:

A lot of the nuts and bolts of it do not work without subordinate legislation.

The Chairperson:

We intend to roll out a programme of training that is specifically tailored to councillors. At one point there was a suggestion that the Town and Country Planning Association would hold its annual conference in Northern Ireland. As RPA receded that was taken off the agenda, but it could be brought back on again and a programme of training could be worked out.

Mr W Clarke:

Obviously, there are clear lessons from what happened across the water in the area of planning reform. Do you see any comparisons between what happened there and what is happening here? Is there anything that we should do differently?

Mr Worthington:

The Localism Bill that is going through the House of Commons will bring in a planning system in England that is different to the one that we are working on. When the Localism Bill was first discussed, one of the key issues was the notion that communities would be allowed to define themselves. That would have produced inward-looking plans, but the Localism Bill as introduced provides that councils rather than communities should make that definition. We have a number of shared space initiatives here that encourage communities, particularly those in areas with a lot of peace lines, to look outwards, towards each other. It is important that communities here do not self-define but are defined by councils, to avoid inward-looking plans.

The Chairperson:

There is a serious need for capacity building and resources. I thank the witnesses for their presentation and I look forward to working with them again.

The Chairperson:

We move on to the oral evidence session from the Royal Institution of Chartered Surveyors (RICS). I welcome Ms Diana Fitzsimmons, Mr Bill Morrison, Mr Ben Collins and Mr Liam Dornan. You are all very welcome. Please give a presentation to the Committee and then I will open the meeting to questions from members.

Mr Ben Collins (Royal Institution of Chartered Surveyors):

I am the Northern Ireland director of RICS. I will say a few brief words of introduction, and then each of my three colleagues, all fellows of RICS, will make a brief contribution. We understand that we have 10 minutes to make a presentation at the start.

The Chairperson:

We will give you a wee bit more than that.

Mr Collins:

Thank you for giving us the opportunity to speak to you about the Planning Bill. RICS has a requirement to act in the public interest and provide advice to the Government of the day. We have 3,000 members who work across land, property and construction in this region, including all aspects of the planning process. Our oral evidence will be supplementary to the written evidence. It can also be made available in a written format should the Committee wish.

As our written submission suggests, we are generally supportive of measures to devolve more planning responsibilities to councils. However, we will use this evidence session to highlight our concerns about implementation issues. Liam Dornan will deal with implications for councils, Diana Fitzsimmons will deal with development plans and third-party appeals, and Bill Morrison will deal with conservation areas and governance.

Mr Liam Dornan (Royal Institution of Chartered Surveyors):

I will touch briefly on a very important issue for local councils, which is capacity building in councils. This is quite a big move, when one thinks of the way in which planning was devolved to a separate Department. RICS recognises that there is a need to ensure sufficient capacity in central and local government to ensure that the reform of the Planning Service is delivered in an effective and efficient manner. To that end, we hope that staff in the new planning services in central government and local authorities will be provided with sufficient resources. RICS has offered the Department assistance with training, and Minister Poots said during Question Time that he would welcome that.

We welcome and support the inclusion of a statutory duty in the exercising of planning functions. We encourage the Committee to impress on the Minister the importance of sustainable development and the need for councils to comply with the spirit of the legislation. RICS recognises that councils, in their statutory functions and daily business, strive for sustainable solutions for development in their areas, especially when building new facilities for the public in their area.

Clause 18 concerns the power of the Department to direct councils to prepare joint plans. RICS has concerns about councils being directed to work on joint plans in that fashion. We would welcome some kind of incentive to councils that decide, without direction by the Minister, to engage in the production of plans without intervention. A joint approach in some instances would be important, but councils coming together of their own volition would be better than their being directed by a third party.

Clause 25 deals with the hierarchy of developments. There are still some issues to be clarified in that regard. The proposed legislation states that the Department can decide that a local development is a major development. Some elements of the criteria for those decisions are contained in clause 31. We need some clarification as to when the Minister can invoke that clause. This could be an issue with some of the local developments in our major cities, such as Derry, Belfast, Newry and Lisburn, depending on the size of the projects. It may undermine the workings of local authorities.

Clause 26 deals with the definition of “regional significance”. RICS has some concerns, as were described previously. It may bring the Minister and the council into conflict if the Minister or the Department suddenly decides that a local development is regionally significant and should, therefore, be looked after by central government and the Minister.

Clause 27 deals with pre-application community consultation. That part of the Bill will place a duty on a council to consult with the local community. That is important if the local community is to have an input into development in an area, especially where regionally significant projects are concerned. The applicant is responsible for that consultation, and the RICS would like clarification on issues that deal with the definition of community. That includes how far that definition goes in the consultation and the breadth of the consultation that is required by the process. It is important for the developer to consult with the council on that so that the council can use its good services to maximise consultation with local people.

Ms Diana Fitzsimmons (Royal Institution of Chartered Surveyors):

I am a planning consultant and the office director of Turley Associates. We have about 100 applications with the strategic projects team in the Planning Service. Those applications are for regionally significant projects. We have another couple of hundred applications with the local divisional planning offices. I was formerly principal commissioner with the Planning Appeals Commission, so I have experience of conducting two development plan inquiries. Before that, I was an academic, and before that, I was a planner in the DOE’s Planning Service.

The points that I want to make are about the proposed plan-making system and the fact that third-party appeals are lacking in the Bill.

The RICS supports the fact that councils will be making local development plans, the two elements of those being the plan strategy and the local policies plan. It also supports the fact and that those two elements need to be consistent with each other. However, we have some issues about how quickly local councils will be able to do that. Obviously, the big issue is always timing and the timeliness of plan preparation, particularly in the context of a plan-led system, which the legislation will introduce.

Developers and inward investors need a very predictable planning system, and that is very much part of the reform process. We agree that councils, in preparing their local development plans, must take account of regional policy and guidance from DOE, DRD and OFMDFM. They must also contribute to sustainable development. All those matters are in the Bill.

As we are all aware, sustainable development is a term that has been defined differently by different people, so it is quite difficult to cover. The local development plan must also comply with any EU obligations. Therefore, it will not be an easy process for councils to carry out plan making, because they will have to listen to what people on the ground, or at the coalface, have to say while being in accordance with all the higher-up plans.

Obviously, the Bill is very much the skeleton of the new development plan process. The Bill states that a lot of that will be developed further through development Orders and regulations, which will be the meat on the skeleton. It is very important that those Orders and regulations are issued as soon as possible so that we can see exactly what is required in the form and content of a plan, the consultation procedures, the content of a statement of community involvement, the plan review process and procedures. We should also be able to see exactly what is required in the content of an annual report on a plan, which the council will prepare. We do not see any of that detail in the legislation, so it is obviously for Orders and regulations to cover.

We note that the DOE will retain extensive plan-making powers. You may want us to comment further on that. We think that that is probably OK at the moment, because it reflects nervousness in the Department about the councils’ ability to carry out those plans in a short time. That may change over time, and the Department of the Environment will hold fewer powers of direction.

We are concerned that community planning is not mentioned in the Bill. It is the layer below the local development plan, and it will obviously be a non-statutory planning process. Given that practice in community planning differs right across England and Scotland, we are not quite sure what community planning is and what it will be about. We need to learn from best practice across the water. For example, who will prepare the community plan? Will it be an all-district community plan? What groups will be consulted in the process of preparing such a plan? We need to avoid community disillusionment with the public participation process, so we suggest that people are consulted once on both the local development plan and the community plan to avoid death by consultation.

We believe that training for councillors and council officials is very important. It is important that the measures are not introduced until new councillors and their officials have received thorough training. That is because the system needs to be seen to be fair, impartial and open. It also needs to be seen to comply with all the regional planning policy statements and the regional development strategy. That is not an easy process to match up, as it is very much a balancing process. The RICS is happy to contribute to training councils.

The PAC is the preferred vehicle for the examination of a plan, as it is well trained and has a track record of being open, fair and impartial. However, if there is a huge backlog of plans waiting for examination, we can see the merit of having a well-trained independent examiner.

When it comes to making representations on the soundness of a plan, which is in the Bill, there should be an opportunity for those defending their interests against such a representation to be heard at the examination as well. However, I do not see that, which used to be called counter-objecting, in the legislation.

Another issue to consider is the definition of the soundness of a plan. In England, the word “soundness” has caused a lot of problems for the Planning Inspectorate. In fact, it turned away the first two plans that were submitted to it for examination because they were not sound. We need to be careful that we do not get bogged down. Therefore, we need a definition of the word “soundness”.

Finally, third-party rights of appeal are not included in the legislation. The RICS has traditionally been against introducing third-party appeals on the grounds that they would further delay decisions on planning applications. However, if the Assembly is keen to introduce such appeals, it could learn a lot from the system in the Republic of Ireland, where such appeals can be made only by those who have objected in the first instance. The appeal has to be submitted within four weeks with a full supporting case. In practice, there are no oral hearings in the Republic of Ireland, so it is a very speedy system of appeal.

Mr Bill Morrison (Royal Institution of Chartered Surveyors):

By way of background, I am a planning consultant, as is Diana. Formerly, I was divisional planning manager for Downpatrick and Belfast, so I have a little bit of insight about both inside and outside the system.

The Chairperson:

Your name rings a bell.

Mr Morrison:

I want to make three points on behalf of the RICS. The first is a general point, the second is about conservation and is quite specific, and the third is about something that could be introduced into the Bill if people were minded to address the pressing problem of planning delays.

I will deal first with the more general observation. Picking up from the Chairperson’s comments at the end of the Second Stage debate, we asked whether the Bill would work in practice, whether it would do what it intends to do and whether anything had been overlooked. Generally, the RICS takes the view that the Bill does what it says on the tin: it transfers planning powers to district councils with a few additional tweaks. Perhaps it is the additional tweaks that need to be looked at fairly carefully. The Bill contains the checks and balances, but the RICS would endorse two points that the Chairperson made at the Second Stage debate that powers for planning should not go to councils before they are:

“working within a new statutory governance framework and an ethical standards regime”. — [Official Report, Vol 59, No 2, p117, col 2].

Similarly, we say that links between community planning and development plans need to be clearly explained. Diana has addressed that particular point.

The more specific point that I want to make addresses clauses 103 and 104, which relate to conservation. Generally speaking, the powers in those clauses will come across from the Planning (Northern Ireland) Order 1991. In our opinion, the introduction of additional factors needs to be looked at carefully. The proposals are to change the conservation law to bring partial demolition under control and to apply an enhancement test to development. We feel that those measures should be approached with some caution. They address long-standing case law in England, and, despite the passage of time, no attempt has been made to change that. That sends a signal that there may be something to be cautious about in introducing those two measures. All that the RICS wants to do is flag that up and ask that the Committee look carefully at that particular element.

I will turn now to the no harm test. If something is proposed in a conservation area, the law as it stands states that:

“the desirability of preserving or enhancing the … conservation area”

should be taken into account. In other words, whenever we look at a development proposal, we must ask whether it preserves or enhances the character of the conservation area. The courts in England have taken the view that the critical element is that it causes no harm. The no harm test is fundamental to planning policy. That is the point that the RICS wants to underline. If a proposal causes no harm, it should be allowed in principle. However, the Bill proposes something that goes a stage further by introducing a test to ascertain whether a proposal enhances conservation.

I am a supporter of historic buildings and conservation generally. I am member of the Ulster Architectural Heritage Society, which champions this measure. However, I am concerned that it may take planning one step too far. It makes it very difficult to conceive of how a development would measure up to the test of enhancement. If a proposal is put forward, and it causes no harm, we can understand that. If it has to enhance an area, we wonder what is going to be involved.

My second point, which is also addressed in the Bill, is partial demolition. At the moment, if someone is in a conservation area and is required to carry out demolition, the courts have ruled that consent is required only if the building is to be totally demolished. If it will be only partially demolished, consent is not required. That has been addressed in the Bill, but it raises questions about whether it will lead to an abundance of planning applications for every minor issue that might have to be dealt with. For example, a householder wanting to push down a wall in their back yard will now ask whether he needs conservation area consent. They may or may not need planning permission, and, in many cases, it will be permitted development. However, such a case will fall under this element of the Bill. The complication is that there could be a lot more planning applications and applications for consent to demolish. That would introduce bureaucracy and would raise the question of whether it is absolutely necessary. If it ain’t broke, don’t fix it.

My third point addresses the concerns that are prevalent at the moment about delays in planning processes. The RICS notes and commends the Planning Service’s successes in streamlining. The Planning Service has done a lot over the past two years, after it got a lot of criticism about the length of time that applications were stuck in the process. Things have improved.

We welcome clause 224, which will introduce consultee obligations. In other words, if someone is consulted in the process of planning applications, they will have to reply within a certain time or suffer some consequences that are yet to be determined. That at least puts pressure on consultees to come back with responses in time, which is a positive move.

However, processes remain cumbersome, and that is compounded by challenges or the threat of challenge at various stages, particularly where public inquiries are involved. I am talking and thinking about Sprucefield, Belfast City Airport or, most recently, Newtownards. The RICS feels that some thought could be given in the Bill to measures that would address the Minister’s concern that issues should be resolved at inquiries and by decision-takers, with the courts being the last resort. That must be right.

Therefore, the question that I ask on behalf of the RICS is whether there is merit, under the Bill, in setting up a new regime to prevent challenges ahead of a planning decision and to raise the bar in what needs to be demonstrated. The significance of that, ahead of the planning decision, is that, at the moment we have challenges coming at various stages of the process, and when the application goes to public inquiry for one reason or another, environmental issues may not have been addressed, so the inquiry is pulled and the application is looked at again.

No doubt it will be one step at a time. Diana, we talked about the PAC earlier. We may create duplication if we create a process in which plans are sent to the Department with the possibility of their being sent to the PAC and returned to the Department. You have been on the inside of that process, so what are your views on that point?

On the capacity issue, Bill told the Committee that there is a backlog as a result of redeployment and other issues. That backlog could be cleared quickly, but further problems could be created if we move it on a further step, as decisions will need to be made. There is nervousness in the Department about this, which is fair enough.

Ms Fitzsimmons:

The Planning Appeals Commission has evolved the process. It used to take a very long time to conduct a public inquiry. Examinations are much quicker, as they are commissioner led, but they could be further tightened and speeded up quite substantially. For example, a lot of people do not turn up when they said they would, and there is a great deal of time wasting. A number of commissioners should work on one plan to get it through quicker. In my opinion, the point is to use the Planning Appeals Commission’s resources effectively.

The Chairperson:

Bill, just before I open it up to Committee members, you spoke about clause 224 and the duty to respond to consultations. I will not mention my experiences as a councillor, but, given that there are different applications for different developments, should the time frames for the receipt of consultees’ responses to such applications be broken down?

Mr Morrison:

Clause 224 will leave a lot to development Orders and so on to specify what sanctions will be placed on consultees. However, at least the provision is in the Bill, and there probably will be an insistence from Departments for those responses to come back on time.

One way that a consultee can get out of that duty is to say that they need more information. That is a delaying factor that perhaps no legislation can overcome. If someone needs more information, it must be provided and the file is put away until that information arrives. The recognition that consultee responses are crucial to the time frame of processing planning applications is important, and I am glad to see it in the Bill.

The Chairperson:

The Chairperson:

That is fine. I think that you are correct on that.

We are being told that we will not have enough time to scrutinise the Bill, but a lot of questions will be asked before we are finished. We have an opportunity to get it right. There will be a transition period when people take time to bed in and get it right. Subordinate legislation will determine how it rolls out on the ground, and some of the issues that we talked about today will raise their heads. For the record, I have nothing against those architects — or architects in general — but I am giving examples of what we have heard, and we need to look at that. Thank you.

COMMITTEE FOR THE ENVIRONMENT

OFFICIAL REPORT (Hansard)

Planning Bill

26 January 2011

Members present for all or part of the proceedings:

Witnesses:

The Chairperson: (Mr Boylan):

Councillor Jack Beattie (Northern Ireland Local Government Association):

Councillor Arnold Hatch (Northern Ireland Local Government Association):

Councillor John O’Kane (Northern Ireland Local Government Association):

Mr David McCammick (Northern Ireland Local Government Association):

The Chairperson:

Cllr Hatch:

The Chairperson:

Cllr Hatch:

The Chairperson:

Cllr Hatch:

The Chairperson:

Cllr Hatch:

The Chairperson:

Cllr O’Kane:

The Chairperson:

Cllr Hatch:

The Chairperson:

Cllr Beattie:

The Chairperson:

Mr McCammick:

The Chairperson:

Cllr O’Kane:

Cllr Hatch:

The Chairperson:

Cllr Beattie:

Cllr Hatch:

The Chairperson:

Cllr Hatch:

The Chairperson:

Mr McCammick:

The Chairperson:

Mr Kinahan:

Cllr Beattie:

Mr McCammick:

Cllr Hatch:

The Chairperson:

Cllr O’Kane:

The Chairperson:

Cllr O’Kane:

The Chairperson:

Cllr O’Kane:

The Chairperson:

Mr W Clarke:

Cllr O’Kane:

Cllr Beattie:

Mr W Clarke:

Mr McCammick:

Mr W Clarke:

Cllr O’Kane:

Mr Ross:

Mr W Clarke:

Mr Ross:

Mr W Clarke:

Mr McCammick:

Mr W Clarke:

Cllr O’Kane:

The Chairperson:

Mr Savage:

Cllr Beattie:

The Chairperson:

Mr B Wilson:

The Chairperson:

Cllr O’Kane:

Mr B Wilson:

Cllr O’Kane:

The Chairperson:

Cllr O’Kane:

The Chairperson:

Cllr Beattie:

The Chairperson:

Ms Esther Christie (Northern Ireland Housing Executive):

The Chairperson:

Ms Christie:

OFFICIAL REPORT
(Hansard)