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

Mr B Gamble ) Department
Mr I Raphael ) for
Ms S Mossman ) Regional Development

The Deputy Chairperson: Members have a letter to the Department for Regional Development from the Committee Clerk regarding the issues raised by the Planning Appeals Commission during the evidence session last week. Members should also have a copy of the Department’s response.

Today we shall take evidence from the Department for Regional Development, and we have a short PowerPoint presentation. I welcome Billy Gamble, Ian Raphael and Sharon Mossman. Perhaps you might make a quick presentation; no doubt members will have questions for you afterwards.

Mr Gamble: Mr Raphael will make the presentation. We should like to capture the types of issues raised during the evidence session and in your letter. We shall clarify those points and any others you may have.

Mr Raphael: I want to address some points which emerged as a result of the evidence which the Committee received from the Royal Town Planning Institute and the Planning Appeals Commission on Wednesday 18 September. Two issues were raised at that Committee meeting. First, the Royal Town Planning Institute raised the question of the change of the wording in the Strategic Planning Bill from "consistent with" to "in general conformity with" with regard to the regional development strategy. Secondly, the Planning Appeals Commission raised a point about fairness, particularly with regard to the statements, which are a feature of the Bill.

I want to outline why there was a need to change "consistent with" to "in general conformity with". It will allow the Department of the Environment the flexibility which it feels it needs to secure the ordinary and consistent development of land, which is its requirement under the legislation. It will allow a flexible response to unforeseen circumstances in the regional development strategy. We anticipate that the need for such flexibility will not occur frequently, as one hopes that the strategy has covered all the key themes and objectives which may emerge. However, we considered that point with regard to the change in the wording.

Mr Ervine: Can you give us an example of when such a situation has occurred?

Mr Raphael: I shall come back to that point, as it is interesting, and I can give you one or two examples.

The "consistent with" wording does not provide anything to deal with circumstances unforeseen in the regional development strategy. However, the Planning Appeals Commission mentioned that it recognises the real world which we live in. New issues can emerge over time, and the change of wording accommodates that possibility. It is important that the primacy of the regional development strategy be maintained, which is the point which the Committee kept in mind when debating the Bill.

The statement process will be in four stages. The first will be at the stage of the draft plan when the information is reviewed. The Planning Appeals Commission’s report, following a public inquiry into the draft plan, will form the second stage. The third stage will be when the Department of the Environment makes a decision to adopt the development plan, and at the fourth stage the adoption order is published.

At the stage of the draft plan, the Department of the Environment will send the draft plan and any associated material to the Department for Regional Development, which then has 28 days to offer comments in writing. Those comments form the first statement, which can be of either conformity or non-conformity. For each of those two scenarios a strategy is in place. A statement of non-conformity means an objection by the Department for Regional Development to the draft plan, the implications of which I shall explain later.

The second stage of the process is the report of the public inquiry into the draft plan at which the issue of conformity or non-conformity is fully considered. That report will make recommendations in the light of submissions received from all participants in the inquiry. Objections may be raised at the public inquiry on the issue of the plan’s conformity or non-conformity with the strategy. If the Department of the Environment accepts an objection to the plan, the second statement may be one of non-conformity.

The Department of the Environment could call officials from the Department for Regional Development as witnesses at the public inquiry if the first statement were one of conformity with the regional development strategy. On the other hand, if our Department’s statement is one of non-conformity, it is objecting to the plan and becomes "a party to the inquiry". I shall come back to that important point later.

At the stage of the draft adoption order, the Department of the Environment sends the Department for Regional Development copies of its draft adoption order and statement, and we have 28 days to comment. That order takes into account the whole question of conformity as considered by the Planning Appeals Commission at its public inquiry. The Department for Regional Development then issues the second statement, which the Department of the Environment is required by the Bill to consider. That statement is not an objection to the draft adoption order, nor is it determinative. That is fundamental in the light of the Planning Appeals Commission’s point that the second statement gives the Department for Regional Development the opportunity for a second bite at the cherry as a party to the inquiry. That is not the case, as the second statement is neither an objection nor determinative. The Department for Regional Development is simply making a comment on the draft adoption order.

Importantly, we still come back to the point about the need to secure the overarching nature of the regional strategy — hence the so-called double locking mechanism, the statement on the first stage and the statement on the second stage, something which we feel is very important from the perspective of the regional development strategy.

The fourth stage is publication — the Department of the Environment will publish the adoption order. Significantly, at that stage — and I once again return to the point made by the Planning Appeals Commission about a party not having the right to comment or object at that stage — a party with legal standing dissatisfied with the published adoption statement supplied by the Department would be able to apply for leave to challenge the decision on the adoption order judicially.

Mr Gamble: Could you explain what the term "legal standing" means?

Mr Raphael: A party who had objected to the public inquiry would have legal standing to seek leave to challenge the Department of the Environment’s decision on the adoption order judicially. That would give the opportunity to someone with legal standing to object to the adoption statement and adoption order effectively.

In conclusion, the Planning Appeals Commission view as expressed to the Committee rests on a number of assumptions. The first is that the Department of the Environment would be a party to the inquiry. The Department would only be a party to the inquiry if the first statement were of non-conformity. The Planning Appeals Commission is saying that the second statement would be a further submission by one of the parties to the inquiry and that the same opportunity should be given to others.

As I hope I have explained, the second statement is not an objection, and there is therefore no issue of fairness or unfairness; we are not being given the chance as an objector to make a comment outside the public inquiry process. It is a technical point, but I hope that members understand that the second statement from us is simply a means of our making a comment on the draft adoption order by the Department of the Environment. There is still a mechanism for a party with legal standing to object to the draft adoption statement and order.

The fourth stage makes it clear that the second statement has been made in respect of the draft adoption order. That order will already, among other things, have taken account of the report from the Planning Appeals Commission, and the report will include recommendations on the whole issue of conformity or non-conformity. The issue of fairness is wrapped up in the public inquiry procedure whereby parties have the right to object on the point of conformity or non-conformity.

Mr Gamble: I shall make two comments which may help. The integrity of the overarching nature of the regional development strategy is critical, hence the need for the two linked statementing procedures. The second statement, though not an objection to the plan, is extremely important, in that it is the final comment or opinion from the Department for Regional Development on the conformity of a plan before it is made. Given our experience, we can advise that the period from a draft plan to a finished plan can sometimes be extremely long. We should want the final comment before the Department of the Environment seeks to satisfy the law that the plan must be in conformity with the regional development strategy. We are suggesting nothing in the process that would support the argument that we should not make that second statement.

My final point is that the second statement should not be determinative for the Department of the Environment. The reason is clear, following advice from senior counsel that its being determinative in a planning sense would almost usurp the authority of the courts and potentially that of the Department of the Environment and its functions under the Departments (Transfer and Assignment of Functions) Order (Northern Ireland) 1999. It cannot therefore be determinative in planning; it can offer a view and an opinion. It is an opinion in relation to how that plan conforms to the regional development strategy.

The Deputy Chairperson: Could you give examples of unforeseen circumstances?

Mr Raphael: It is hard to foresee unforeseen circumstances.

Mr Ervine: That is what you have listed.

Mr Raphael: It could be a significant commercial or economic development proposed in the greenbelt or in the countryside which could not have been anticipated because of changing economic or development circumstances. It could be something that was outside the policy considerations set out in the regional development strategy. In addition there could be major changes which dramatically threw considerations of the region’s housing need requirements off course. Something of that sort could not possibly have been anticipated when we started to prepare and assess the whole question of demographic change three or four years ago. It would certainly have to be something of significance.

Mr Ervine: I am not sure that I got an example. There was something that might be an example, but I have nothing definitive. For instance, if some property developer came up with a grand scheme to build houses in the hills — and no doubt the whole of Northern Ireland would be quite interested in buying them despite the challenge to the environment — you are saying that we are leaving a door open for entrepreneurial attitudes. Could I have a more definitive example? I am not trying to be unreasonable; I just want to understand it.

Mr Gamble: We argued long with senior counsel about trying to reach consensus on the wording. We felt that there was a great deal of comfort in the regional development strategy in coping with the unexpected. An opposing view was put by counsel acting on behalf of the Department of the Environment that there was a rigidity in the term "consistent with" which would not allow practical decisions at ground level in the face of something unexpected and extremely significant or might rule out a consistent approach.

Rather than 100 pieces fitting together, one piece might not fit, and if we were to continue with the "consistent with" argument, that would mean that the whole plan was potentially out of kilter. We were saying that there is comfort in the regional development strategy: senior counsel advised that that the idea of having "consistent with" in all points might make it too difficult to deal with the real issues on the ground. Therefore the revised wording provides a degree of latitude.

The Deputy Chairperson: The Committee expects the policing of that aspect to be rigorous. We should be fairly fraught at the first sign that the Department of the Environment’s taking the wording with an attitude summed up by "Jolly good, very interesting. Now let us get on with the real world."

I still do not quite understand why you have not been able to secure agreement with the Planning Appeals Commission on this point, for what you have described is logical. Why does it not accept it, and does its legal opinion not accept your logic? I presume that you had many discussions on the subject with it before we arrived at this situation.

Mr Gamble: There is an onus on us to go back to the Planning Appeals Commission, having met you and having heard its session last week. We must explain the position as we see it. It is predicated on several assumptions. We have presented a reasonable argument, and we can set that out to the Planning Appeals Commission. One hopes that it will not have a problem with that.

Mr Hay: The Planning Appeals Commission sees you, Mr Gamble, as having a second bite of the cherry, which is what its representatives have said to the Committee. It has made its decision, and the Department is being involved again — it makes it messy.

Mr Gamble: We do not wish — and I do not suggest that the Planning Appeals Commission wishes — to open an inquiry, as that is not in anyone’s interest. However, there is an issue for the Department about the integrity of the regional development strategy. Several things can happen from the drafting of the plan to its being made. There is a legal obligation on the Department of the Environment that the plan should be "in conformity with" the regional development strategy. We have a mechanism in the shape of a second statement and the protocol which we shall have in place with the Department of the Environment. That is, as we progress, we ensure that there is convergence with the plan and the regional development strategy, which was the Deputy Chairperson’s point. Therefore we do not face a situation down the line where the two diverge. That is critical, and the protocol is the key to that. In many ways the assurance of the second statement before they make the plan is important.

Mr Raphael: You raise an important point. The Planning Appeals Commission rightly wants to protect the procedures surrounding the public inquiry, for that is its remit. During last week’s evidence session, its representatives said that they are not commenting on the legality of our proposal, but that they were referring to the procedural side, and that is quite right. We want to be sure that it is correct; hence the need for taking a legal opinion so that nothing will be floating around that could create problems. The Committee is correct that it is important that the matter be addressed properly, and the Planning Appeals Commission’s point is reasonable.

Mr Ervine: The Department for Regional Development has huge power and authority here, not only because it is the Department, but because it is the guardian of the regional development strategy. However, there are several implications to be looked at. Your ethos is wonderful, but can we guarantee that, in 10 years, the ethos of the departmental officials and the Minister will be just as wonderful? Is the passing of Bills and other legislation not about stopping excesses?

There is potential for a coach and horses to be driven through your suggestion that flexibility is needed in unforeseen circumstances. I understand the logic of that; however, there is a danger that unforeseen circumstances could be invented. I do not suggest that you would do that, but it could happen further down the line.

If I am an individual objector, and therefore with legal status, should we ever have joined-up government, would my opinion stand a chance in the hallowed halls of the Department of the Environment against the opinion expressed in the Department for Regional Development in its second statement? That chance would be remote. A little person like me would only be getting in the road. There will be a growth of the use of that flexibility, and little people like me will be steamrollered.

There is a further implication. Is there any provision whereby a little person could get legal aid to take on the might of the Department of the Environment and the Department for Regional Development? Your Department has been silent on that issue. Although I have raised an objection, unless I was wealthy, that objection would not matter. I should be swamped, because every time we talk to a Department about anything, there is the looming spectre of legal counsel. What chance does the little person have?

As the Bill stands, I am absolutely opposed to the second statement. It means that a loophole may be created at a later date, and it affords minimal opportunity for the little person to present an argument. Some developers will be able to afford it. However, ordinary people and small groups of people will have opinions. I am fearful about the way in which the legislation has been designed.

Mr Gamble: I hope that the Committee members who duly endorse the regional development strategy and its principles will equally endorse the statementing procedure to protect the integrity of the strategy on those principles. Through the two statements, we seek to offer that degree of protection to the regional development strategy’s key principles. It is to be hoped that the individual who may oppose a change to the townscape’s character, to cramming or to a failure to connect transport will look to that statementing procedure, which says that that plan does not conform to the regional development strategy for certain reasons. That is what the statementing procedure seeks to do. It is a twin-locking procedure to protect those interests and views.

Mr Ervine: I understand that no slight is intended on the people who are attempting to develop the regional development strategy. I am looking to the future and to what might become a practical reality. After all evidence has been heard, the guardians of the regional development strategy may still not be keen. Given that you are the guardians of the regional development strategy, the Department of the Environment is placed in an interesting political situation. Versed with a political misjudgement to make and protection of the individual, I am not convinced that that protection would be guaranteed in the Department of the Environment’s mind. It must be remembered that we may have joined-up government some day. Departments may talk and relate to one other and, therefore, have common purposes and interests. There are common purposes and interests that are legally alien to the individual’s arguments.

Mr Gamble: Planning is always subject to restrictions. We believe that the regional development strategy’s principles are fundamental and that the Committee shares that view. All we seek to do through that process is to ensure that plans meet and expand on those principles, and that they conform to the regional development strategy. There are two important interlocking points in planning. Through the Strategic Planning Bill, we suggest a twin- locking arrangement to give that assurance. It is a matter for the Assembly and its Committee to decide whether that is a sensible way forward.

The Deputy Chairperson: My understanding is that your first statement is a valid legal statement and is your view.

Mr Gamble: Both statements are in statute; one is potentially an objection.

The Deputy Chairperson: The first is an objection, and that is taken into account. Your second statement simply reiterates your first, but you have said that it does not have a statutory base.

Mr Gamble: It has a statutory base, but it is not treated — [Interruption.]

The Deputy Chairperson: It is not determinative and is not an objection. In effect, you say that you objected before and that you still object now. Planners are not obliged to take any particular account of it, which is presumably why you can go to judicial review.

Mr Gamble: No. The second statement is made, before the plan is made in the draft adoption statement when we see the outworkings of all the discussions of the public inquiry and we have a sense of the type of plan to be made. Before the Department of the Environment can satisfy its statutory duty, which is to introduce a plan that is in conformity, we shall have an opportunity to say whether we believe it is in conformity.

The Deputy Chairperson: However, you still say that you object.

Mr Gamble: Not necessarily.

The Deputy Chairperson: If you still believe that it does not conform to the strategy, it just confirms your original objection. Your statement will say that a plan is either in conformity or it is not.

Mr Gamble: Where a plan is not in conformity and before a plan is made, the Department of the Environment, having worked through the objections and views of others in an inquiry, may decide to take action in order to bring the plan into conformity. Therefore, our second statement could be to endorse that that plan is now in conformity.

The Deputy Chairperson: The initial application does not conform to the regional development strategy. If it is modified and submitted for a second time, and it conforms, that is jolly good. If the second submission does not conform, you have said that it does not have a material effect, other than that it is neither determinative nor an objection. Therefore, you feel that it is not a second bite of the cherry because it merely highlights the previous situation. However, if you say that it does affect the process, you are agreeing that it is a second bite of the cherry. You must be careful; you cannot have it both ways. Your argument that it is not the second bite of the cherry is based on your belief that, as the second submission only confirms that the plan still does not conform, it is neither a determination nor an objection and, therefore, does not have teeth. The second submission confirms the status identified in the first submission. If you argue that it does not have that status, it must be a second bite of the cherry.

Mr Gamble: If a plan is not in conformity, the Department assigns a statement of non-conformity, which is an objection. If, having discussed the plan with others, who may share similar views, we decide that the plan has not taken account of certain issues, we have an opportunity to offer an opinion before the plan is made. The status of that opinion is that the Department of the Environment must consider it in statute in the planning process. If two versions of a plan are submitted, both of which are not in conformity, there are two yellow cards against that plan. The view of learned colleagues is that it would be unwise for the Department of the Environment to proceed in the face two non-conforming statements.

The Deputy Chairperson: Absolutely, but the second non-conformity statement is an opinion.

Mr Gamble: It is an opinion.

The Deputy Chairperson: The second non-conformity statement is an opinion, but it could lead to a judicial review, which gives the Department teeth. The Department can, as the original objector, go to judicial review if the Planning Appeals Commission makes a decision with which it is unhappy. Therefore, it is a locking mechanism. However, my concern is that, as the second statement is an opinion, it allows the Department to argue that it is not a second bite of the cherry.

Mr Gamble: The Department does not believe that it is a second bite of the cherry.

The Deputy Chairperson: It is neither a determination nor an objection; ergo, it is an opinion. Technically, the Department of the Environment would be silly in all sorts of areas, including its dealings with the Committee. The process is fraught — the planners can thumb their noses the Department, in which case it would seek a judicial review, at which the Committee would be terribly excited because the planners were not conforming to the regional development strategy.

Mr Gamble: That is a good summation.

Mr Savage: The more I listen, the more confused I become. Mr Raphael mentioned the green belt, which, especially in my constituency, is changing. If a developer makes a good case that states that there are opportunities to create employment in a green belt, will the Department look at his argument favourably?

Mr Raphael: That is not what I said. There is an existing policy framework for dealing with development in, or outside, the green belt in development plans and, especially, in the strategy for rural Northern Ireland. Such a case would be dealt with in the context of the existing planning framework and policy. It would take something of such magnitude that had not been foreseen in the strategy. However, normal development in the countryside to do with developers seeking permission to build would be dealt with in the existing planning framework and policy.

Mr Savage: That is fine for someone who can afford to pay consultants to talk to the Department, but not for small businesses. Changes must be made, and the entire issue must be tightened up. I can think of a few examples of small businesses in Craigavon and Dromore that would be affected. I sat on the council for more than 20 years, and there were times when I got very angry with the planners. I know of someone who fought for a long time to get permission for a replacement dwelling. A change of personnel in the planning department ensued, and the person who bought the site was granted permission to build four houses on it. Legislation must be introduced to tighten that up to prevent such situations from happening.

The Deputy Chairperson: That is an important issue, but we are talking about two different matters. One is the planning legislation, which is a matter for the Department of the Environment, and here we are examining the strategic overview of a watchdog on the Planning Service and the systems that it uses.

Mr Gamble: One issue that we shall raise with colleagues is housing in settlements and the tension that surrounds replacement dwellings. It is critical for the Department to have discussions with the Committee on those matters.

The Deputy Chairperson: That is the next stage. The next item that the Committee was due to discuss was the report, but we do not have time. The next stage is to take the regional development strategy and concentrate on strategy and policy. That is the interesting meat in all this. The regional development strategy deals at a broad strategic level, but, in the next stage, we get into areas such as how we police what is happening.

Mr Gamble: They are the practical issues.

Mr Ervine: I am unclear about one point. When was it determined that a percentage ratio would be set between brownfield and greenfield sites? Did the Department agree with that?

Mr Gamble: Yes, but the ratio is not set. That percentage is the minimum that would be set.

Mr Ervine: I fear that we could see the early development of greenfield sites, because of the adjustment between the two determinations of "in general conformity with" and "consistent with". If a Department was not keen on that percentage being delivered, it could develop greenfield sites much earlier because of the effort that is involved with brownfield sites. What do you mean by "unforeseen circumstances", as that could open up a can of worms? I have several issues of concern, not only about the individual but about what has been agreed, and almost decreed.

Mr Gamble: I agree entirely. There are principles in the regional development strategy that are not negotiable, and that is clear. How we do it, which was the Deputy Chairperson’s point, is getting down to the detail. Phasing land through land release is critical. We advise the Department of the Environment on how it carries out urban capacity studies and how it proceeds with the phasing of land to fulfil those targets. We hope that that reassures the Committee.

Mr Raphael: The Department of the Environment is committed and signed up to the principles of the regional development strategy, particularly those regarding housing development and the best way to manage and monitor a situation.

Mr Ervine: I am not really worried about those issues at the moment.

The Deputy Chairperson: Thank you for attending the Committee session, and I apologise to your colleagues. Time constraints mean that we cannot meet them today.