Mr McFarland (Deputy Chairperson)
Mr Bradley
Mr Byrne
Mr Ervine
Mr Hay
Mr Hussey
Mr R Hutchinson
Mr McNamee
Mr M Robinson
Mr Savage

Mr A Coleman ) Royal Town
Ms J Crawford ) Planning Institute

The Deputy Chairperson: Ms Jenny Crawford and Mr Alex Coleman have come from the Royal Town Planning Institute to give their views to the Committee. Thank you for your submission. Please give a short presentation, after which members will ask some questions.

Ms Crawford: The institute appreciates the opportunity to give evidence to the Committee. I am the Irish planning policy officer for the institute. My colleague, Alex Coleman, is a legal associate member of the institute. He is also a member of the institute’s Irish planning policy panel and was the previous chairperson of the branch in Northern Ireland.

I want to summarise the points that the institute made in response to the Committee’s invitation to give evidence. It is the institute’s view that the replacement of the "consistent with" clause by one of "in general conformity with" may have the effect of weakening the status of the regional development strategy within the newly emerging planning framework in Northern Ireland. The institute wants to emphasise that Northern Ireland — indeed, the whole United Kingdom — is at the stage of reviewing and reforming planning systems in order to put in place a system that is more responsive to the requirements of both modern business and public confidence. We, therefore, responded to the point, made in the putting forward of the Bill, that the precedent had been set by other documents in other regions — in particular, structure plans using the words "in general conformity with" rather than "consistent with". Our view is that, to some extent, that precedent may be outmoded. The powers that be in England, Scotland and Wales are considering putting new planning frameworks in place. In England, for example, it is proposed that structure plans be abolished and that new regional development frameworks and local development frameworks be drawn up. The institute has found that the Government at Westminster are struggling with how to put those in place, given the absence of a regional framework of government in England.

In Northern Ireland we have regional government and we have a regional development strategy, so we are ahead of the game. The regional development strategy is the only such document in the whole of the United Kingdom, and it reflects best practice throughout the European Union on strategic planning. We suggest, therefore, that the unique wording in the Strategic Planning (Northern Ireland) Order 1999 — that development plans should be "consistent with" the strategy — reflects the importance and nature of that document.

Elsewhere the relationship that relates to the clause "in conformity with" is one between government — whether national or regional — and local authorities. Here, however, we have a very different relationship; it is the relationship between two Departments. That will have different implications.

Another reason we felt that the concerns that were being expressed as the foundation for changing the wording were insufficiently founded was that if, as we hope, the regional development strategy is going to be subject to constant review — and given that the strategy was examined and found to be sufficiently flexible as a regional document — it seems illogical to say that it could have a deleterious effect on the potential for local development plans to deliver their statutory function.

We also feel, for public confidence and for consistency and certainty, that we need a regional policy statement on the development planning system in Northern Ireland. Both England and Scotland have a planning policy statement on development plans. Such a statement is needed here, and it would help to set out the relationships.

We also wanted to highlight an issue that is largely about procedure. At the next stage, if we do have certificates of conformity or certificates of consistency — whichever is finally decided on — then what will the mechanism be for resolving differences between the two Departments if it is found that a local development plan is not consistent with the regional development strategy? From our experience, where such wording is used in relation to, for example, structure plans, these sorts of agreements can hold up the formulation and adoption of local development plans for quite lengthy periods. They introduce uncertainty, which is unhelpful to all parties, and can undermine the efficacy of the planning system.

One of our suggestions is that the Planning Appeals Commission should act as an independent arbitrator to resolve the differences between the two Departments and that its decisions should be binding. However, we have not considered in detail the procedures that would have to be put in place to enable the commission to make such decisions. That issue needs to be examined further. Those are the three main points in our submission, but we will happily discuss any other points with the Committee.

The Deputy Chairperson: I wish to discuss the issue of "consistent with" versus "in general conformity with". The Committee was comfortable with "consistent with" because it felt that there was no point in producing the strategy if it was not binding on everyone involved. The problem arose when the Department of the Environment informed the Department for Regional Development that several area plans that had been under way for some years were about to be published. However, those plans would not be consistent with the regional development strategy, and that would be embarrassing. Although the Department of the Environment understood what was meant by "consistent with", the best get-out was to change the wording to "in general conformity with", to avoid the Department getting into big trouble.

It might be more reassuring if the words "in general conformity with" applied to existing plans and "consistent with" applied to future plans. However, I am not sure that that would be possible. The Royal Town Planning Institute has obviously looked at that issue in some detail. How can that dilemma be resolved?

Ms Crawford: My understanding is that the Strategic Planning Bill makes provision for derogation in relation to those plans that have raised concerns. Although we were disappointed that at least one of those plans had not been sufficiently integrated, we felt that it was fair that such plans should be granted derogation given that the Assembly had only recently confirmed the strategy.

At an earlier consultation stage, the Department assured us that derogation would apply only to existing plans that were not consistent with the strategy. Therefore, it is not necessary to struggle with the wording. We would simply recognise that those plans are not "consistent with" the strategy, nor, it could be argued, "in general conformity with" it.

Mr Coleman: An element of derogation is inherent in the introduction of any regional development strategy. The English system will produce regional development strategies on a regional basis. As work on area plans is ongoing, some plans will have already been started before the regional development strategy is introduced. Depending on how advanced they are, it may be possible to bring some of them into conformity with the strategy. However, derogation will be necessary if gestation is too advanced. Some plans will always be caught in the middle in transitions of this kind.

Mr Ervine: If I heard Mr Warke of the Planning Appeals Commission correctly — and I think that I did — he welcomed the change in wording.

I find that interesting because, if I have interpreted you correctly, you believe that too much latitude is being offered to whichever Department — and probably both. Is my interpretation that you feel that too much latitude is being afforded, or that there is a capacity to move away from best practice, correct?

Ms Crawford: That has certainly been our argument. There seems, at face value, to be so little difference between "consistent with" and "in general conformity with"; you are really talking about dictionary definitions. Why was the decision made to change the wording? Admittedly, there is some speculation that it may be to give greater latitude to local development.

Mr Ervine: Please do not believe that I am trying to upset you, but what I am about to say may have some effect. In acknowledging that it was wise to change the wording, Mr Warke suggested that we all "live in the real world". Your wish to retain the wording would indicate that you do not live in the real world. Are you, therefore, the true guardian of all things good in relation to planning? I am not trying to provoke you. I merely want to make the point that your words are at absolute variance with those of someone from the Planning Appeals Commission.

Mr Coleman: The institute’s position is based on the assurance that the regional development strategy will be constantly reviewed, if not annually then at least on a five-year basis. If the political commitment and the resource commitment to constant reviews exist, there should not logically be any necessity for change. If one adopts an alternative view and says that in the real world there will be resource pressures and the resources may not be found in five years’ time to carry out a review, that would be a different set of circumstances. We can only go on what the Department is saying currently. If the Committee feel that the Department’s commitment may not be as strong as in latter years, that would be a different set of circumstances.

Mr Ervine: Thank goodness there are two sides to the argument.

Mr Hussey: Thank you for your presentation. I note that you represent the Royal Town Planning Institute, but I have a concern about the rural population. I am trying to bring into line the situation of identified settlements vis-à-vis those who live in the rural community. You would agree that we do not want a regional development strategy that is over-prescriptive. We do not want one that says: "There shall be a house there. There shall be a shop there." The regional development strategy should be a directional document. If the regional development strategy is a directional rather than a prescriptive document, is the wording of "in general conformity with" not more suitable than "consistent with"?

Ms Crawford: I agree certainly that the regional development strategy and all regional frameworks that are currently being developed are aspirational, strategic and set out a vision for the regional area they cover. They are valuable in that they give an idea of where a development would go. It is critical that that then relates to the democratic decision-making. The regional development strategy is valuable as it is the most democratic planning document that we have in Northern Ireland. I accept that.

The regional development strategy is not prescriptive with regard to planning. Those producing local plans already have the freedom to influence the development of their local areas. The regional development strategy, as it is set out, does not hinder that. One of the aspects that the independent examination panel considered was whether the strategy was sufficiently flexible, even with the wording as set out in the Strategic Planning Order (Northern Ireland) 1999. The panel found it to be so. It is not a prescriptive document, and it was not designed to be a prescriptive document.

Mr Hussey: Zoning is included in area plans for identified settlements, but outside such settlements the lines are much more blurred. I do not wish to weaken the democratic input. People around this table who argue cases on behalf of individual developers would appreciate the words "in general conformity with", rather than "consistent with", to allow for that democratic input to planning decisions.

Mr Savage: I welcome the discussion. Large villages are allowed to grow into small towns, and if those small towns continue to grow, there will come a time when there is no open space left in such towns. In advising the Planning Service, where does the institute draw the line? Where development is allowed in open spaces, recreation facilities will soon disappear. What advice does the institute give the divisional planning offices on that matter? This has become a major problem in certain parts of Northern Ireland, and there is no open space left in some towns where development has taken place.

Ms Crawford: One of the most valuable features of the regional development strategy is that it sets out policy on just such issues. It includes a policy for protecting open space. Unfortunately, at present, there are not enough relevant local plans that clearly incorporate that policy. If there is not at least the drive to implement local plans that are either "in conformity with" or "consistent with" the regional development strategy, a very important resource will be being ignored. We hope that we have the political and legislative back-up to move the strategy forward. The policy to ensure that there is sufficient open space is contained in the regional development strategy, but it may not be contained in local plans.

Mr Coleman: I do not wish to labour the point, but the key to the whole system is that the regional development strategy be reviewed at least every five years. That will address social and demographic change, or the perception that change is needed in a particular area of Northern Ireland. Where changes have taken place, or population projections have not proved to be accurate, change could be made at a strategic level. That is a political and resource commitment that the Department for Regional Development would have to make. In that way, other changes, in addition to those concerned with open space, could be taken into account. If the policies that Ms Crawford described are not strong enough, stronger policies could be put in at the next review of the strategic document. They would be the cornerstone of the plan process.

Mr McNamee: Thank you for your presentation. During the debate on the regional development strategy in the Assembly I mentioned the wording, because the strategy refers to the change in the wording between "consistent with" and "in general conformity with". Derogation in relation to those plans which are far advanced and almost completed is dealt with in the Bill. In the Chamber I told the Minister that I hoped that the change of wording would not weaken the primacy of the regional development strategy in giving it direction. The Minister’s response, which was based on legal advice, was that "consistent with" would be unnecessarily inflexible with regard to the development of future plans. Your submission stated that the legal advice to the Department had not been explained. Would it be useful for the Committee to ask the Department to elaborate on the advice that it received on the change of wording, bearing in mind that the regional development strategy does not deal with any specific area plan and that it is a strategy document for the region?

Ms Crawford: That would be useful; certainly the institute would have found it useful in its deliberations.

Mr Coleman: The precedent that attaches to the words "in general conformity with" is relevant in England and Wales. However, that is a different system, where there is one Department and the planners are operating, by and large, in a local authority context. The framework in which those same words would have to be interpreted by the Planning Appeals Commission or the High Court in Northern Ireland is different. Here there are two Departments of equal status, and the planners, and the planning context, are from a centralised authority — the Department of the Environment. I do not doubt that there are legal arguments of precedent, but there are other, equally weighty, factors on the other side, and it would be interesting to see what those factors are.

Mr Hay: This is an interesting topic. We are really talking about policing the regional development strategy. The Department of the Environment is responsible for handling planning applications, and the Department for Social Development is responsible for strategic development across Northern Ireland. The Department for Regional Development is making sure that all of this fits into the regional development strategy, but it is still trying to leave it flexible enough not to stifle major development in Northern Ireland.

I am sure that everyone associated with planning in Northern Ireland will have different ideas on the best way of policing the regional development strategy. "In general conformity with" sends out the clear message to people that, whatever they do in development, they must adhere to the regional development strategy. I agree that there must be guarantees that the strategy will be revisited to ensure it is working — whether it be after three years or five years.

You said that a dispute between the Department of the Environment and the Department for Regional Development should go to the Planning Appeals Commission. In my experience, the Planning Appeals Commission can take quite a while to look at a dispute.

I know of planning appeals in Londonderry that have been sitting for nine months before there is even a meeting to try to resolve the issue. I wonder whether that is the best mechanism for resolving disputes. Is there another mechanism that could speed matters up and not create a blockage, especially when it comes to major planning applications? I have heard of major planning applications being held up for two or three years because of disputes and appeals.

Mr Coleman: The institute believes that there are three possible models. In a dispute, the first certificate of non-conformity would go into the normal area plan inquiry as an objection. We are, therefore, talking only about the second certificate of non-conformity where a draft plan has been sent to the Department for Regional Development.

There are three possible ways forward. If the two Ministers in the Executive cannot resolve matters, the first resolution procedure would be the courts. However, our courts have a common law tradition, which does not take kindly to deciding matters of policy. They are happy to decide on matters of procedure but not of policy. The other way of dealing with it would be on an ad-hoc basis, where an inspector or arbitrator would be appointed as each dispute arose. That is a fair enough method, but there would have to be agreement regarding the person concerned. There might be some loss of continuity, because the same person would not be appointed to every case. It might take time to find a suitable arbitrator. The other alternative is to use the existing dispute resolution machinery, which is the Planning Appeals Commission. On balance, the institute thought that that would be the best, and most consistent, way forward.

As Ms Crawford said, there are details to be worked out. If a matter were referred to the Planning Appeals Commission, and the two Departments subsequently agreed, could they recover the reference? Would it take the form of written representations or a public hearing? Could third parties attend? You would not want a rerun of the area plan inquiry. The third issue to be considered is whether the Planning Appeals Commission should act as a tribunal, taking decisions on the evidence presented to it, or as an expert, taking other considerations in the planning sphere into account.

The institute, having thought that through, concluded that the Planning Appeals Commission option was the best one.

Mr Hay: Disputes do not happen that often, but it is important to have the proper procedure in place so that action can be taken if it is needed. We need to examine that issue more closely.

The Deputy Chairperson: I am afraid that I cut Mr McNamee off in half flow.

Mr McNamee: Mr Coleman spoke about the resolution of disagreements between the Department of the Environment and the Department for Regional Development, both being considered as equals. However, the Minister and others have referred to the regional development strategy as an overarching strategy for the region; other strategies should flow from that and reflect what is contained in it. With regard to "in general conformity with" or "consistent with" regional development strategy, I imagine that priority should have been given to the Department for Regional Development. In the event that there is a need to resolve a disagreement between the two Departments you suggest that the Planning Appeals Commission should be involved. What requirement is there for the Planning Appeals Commission to have due regard to the regional development strategy, as opposed to the Planning (Northern Ireland) Order 1991 and planning statements?

Mr Coleman: That would be a new head of jurisdiction for the Planning Appeals Commission. If the Committee were to suggest that as a dispute resolution option, it would be beneficial if, in its recommendations to the Department, the Committee could consider the basis on which the Planning Appeals Commission could undertake that. As with all planning forms, material considerations would have to be taken into account. However, it would be up to the Committee to suggest a framework and particular methodology for the Planning Appeals Commission to resolve disputes.

For example, it is often only at the eleventh hour — immediately before going into court — that people are able to resolve difficulties. If that were the case, could the Department then withdraw the application to the Planning Appeals Commission? That is a very practical decision that would have to be taken. Would a referral to the Planning Appeals Commission be irrevocable? The Committee’s work in those areas would be very beneficial to the Department.

Mr Byrne: The Strategic Planning Bill mainly refers to the Department of the Environment and the Department for Regional Development as having the primary input into views about the shape of a local development plan. Given that the regional development strategy is the primary framework, and that local development plans are largely expected to live within its parameters, is sufficient account being taken of a local authority’s having some input into the development of a local development plan or looking for amendments or changes to such a plan after the initial draft stage?

Ms Crawford: That is a key point, but perhaps not for inclusion in the Strategic Planning Bill. It may be more appropriate to a wider review of local government and planning in Northern Ireland and the whole role of local government in developing policy for their particular areas. The current perception is that there is a lack of input from local government, and a lack of involvement by local people, in the local development planning process. Perhaps that is a separate, although complementary, issue to that under consideration here.

Mr Coleman: That is an interesting point. Mr Byrne is quite right. Where, in relation to an area plan, there is a dispute between the Department of the Environment and the Department for Regional Development, it should be borne in mind that the local authority is one of the major stakeholders involved with the plan. I would have thought that where a referral is made on the second limb to the Planning Appeals Commission, any local authority would be tremendously interested in the outcome. The Committee will have to think about that.

Although no one would welcome a replay of the area plan, if the Planning Appeals Commission were arbitrating in a dispute, what other stakeholders could make representations to the Planning Appeals Commission? Would it only be public authorities and the statutory consultees, or would non-governmental organisations or members of the public be included? Arguably, the Committee should address that question if it decides to recommend that type of dispute resolution.

Mr Hussey: You mentioned the periodic review of the regional development strategy. Many area plans are past their sell-by date. Given that, and the length of time it takes to produce those plans, how confident are you that a proper review system for the regional development strategy can be established?

Mr Coleman: That is a resource question. Commissioner Warke’s comments have validity in that there are resource pressures "in the real world". The Committee must make a judgement call on that and balance it out.

Mr Hussey: But experience makes one wonder.

Mr Coleman: That is a very fair argument.

The Deputy Chairperson: Thank you very much for your very interesting submission. It has raised many issues for the Committee to put to the Department next week.