Official Report (Hansard)

Session: 2011/2012

Date: Wednesday, 18 April 2012

Committee for Regional Development

Inquiry into Unadopted Roads - Northern Ireland Local Government Association

 

The Deputy Chairperson: I welcome the witnesses to the meeting.  I invite you to make your presentation, after which members will ask you some questions.  I remind you that Hansard is recording the session.

 

Mr Derek McCallan (Northern Ireland Local Government Association): First of all, I thank the Deputy Chairperson and the Committee for this further opportunity to amplify the evidence, both written and oral, that the Northern Ireland Local Government Association (NILGA) presented on behalf of the local government sector between January and March.  Our substantive evidence in January, both written and oral, has been supplemented with additional evidence provided in March, at your request.  You will be relieved to hear that I do not intend to go through that in detail, because you have that information.  I just wish to amplify, if I may, some key points, because brevity and outputs, as this Committee has shown, are much more preferable to longevity and processes for the sake of it.

 

I thank the Committee for initiating this review.  It is an example of the sharing of information and of listening and being listened to.  A range of stakeholders, including NILGA, supported the wish for a review, which is an evidence-based, integrated form of two-tier government.  So, I am glad that that exists in some quarters, and I applaud the review.

 

As I mentioned, I want to simply clarify and amplify some of the recommendations that we have already provided information on.  I will do that by outlining some very brief bullet points, if you are content.  NILGA called for a review of the current adoption of the Private Streets (Northern Ireland) Order 1980, to include protection against incomplete developments and give more powers of enforcement to the Roads Service and the Planning Service.  We recommend that the statutory orders bond be strengthened and its level increased to guarantee the proper completion of roads by developers or, if necessary, Roads Service, so that residents — your constituents and councillors' constituents — are offered proper protection.  We recommended that the Department for Regional Development's Roads Service encourages actively targeting developers who have responsibility for unadopted roads and streets to establish a time-bound, fine-oriented programme of compliance.

 

Since 18 January, as I mentioned, we have offered further information, as requested, relating to how divisional Roads Service offices maintain and prioritise backlog lists of roads that have not been adopted.  The utilisation and prioritisation of those are extremely important.  NILGA would like to offer the Committee assistance, if it may, by communicating the outcomes from the inquiry, perhaps through organising, again subject to your approval, some subregional outcome workshops to inform local councils, divisional Roads Service offices and other relevant stakeholders of what needs to be done and which organisation need to do it, in order to work together to resolve the issue of unadopted roads in Northern Ireland.  The menu that we put forward is very simple.  It is a "who, what, why, where, when, and how" menu to ensure that constituents and, in last place, the media understand that this issue is being dealt with by committed public servants, which I believe we all are, or at least should be.  Within the engagement exercise, we propose the adoption of a protocol with that combination of public servants and organisations that should be committed to solving this.

 

This is not rocket science, and it is not a panacea.  There are numerous precedents of local government and Departments working together.  An example is the fly-tipping protocol, which I am sure every Committee member is aware of.  Under that protocol, the menu of what has to be done is shared.  There is a dynamic response to it, and the outcome is that the right organisation creates the right solution, and that is done once.

 

We do not want a situation like that which arose in Coalisland recently, where a 100-house scheme was not completed for reasons with which you are probably more conversant than I am.  The developer went into liquidation.  Fourteen houses were owner-occupied, and the balance of the land was seeping sewage into the area.  Very public-spirited, dutiful members of three different agencies — council, Roads Service and the Northern Ireland Environment Agency (NIEA) — were looking at the problem, wanting to reach a solution, but wondering who would be indemnified to solve it.  In principle, that is good government seeking a solution.  In practice, we think that the menu of information and the protocol will solve that.  The outcome is people all working for the same end:  to improve the lot of citizens in Northern Ireland.

 

Bearing in mind that brevity is very important, I and my colleague Claire Bradley — who has worked with local government officers and a number of agencies to provide simple and effective outcomes to the inquiry, which we applaud you for instigating — are happy to take whatever questions we may be able to answer.  We reiterate our thanks for your request that we are involved in this, because two-tier government is good for citizens.

 

The Deputy Chairperson: Thank you for the presentation.  Before I bring members in, may I start by asking this:  what role does building control have in this whole process?

 

Mr McCallan: The situation with building control is best illustrated by an example.  If there is sewerage underneath an unadopted road, statute requires that building control officers play a role in solving that problem.  So, it is not the road but the sewer.  Specific reference is made to council building control officers, hence the need to work together on this.  That is the role of building control officers.  Building control officers across councils also think as laterally and creatively as their resources require.  They have a job in statute, but they also think three-dimensionally and communicate with Roads Service and NIEA about other issues.  That is my understanding of the legislative requirement of building control officers in councils.

 

Mrs D Kelly: Thank you for the presentation.  Given that new legislation has come through the Assembly in relation to clean neighbourhoods, with more authority being given to local authorities, and now that RPA is back on the agenda, do you see any opportunity for councils to be given more statutory power to resolve some of these issues?

 

Mr McCallan: Yes; a contemporary, two-tier, local government/central government approach has to be welcomed.  We should look beyond the literal responsibility.  We should also look creatively at being properly resourced.  We should look at expanding the role to ensure that resources, legislation and a proper design of that service is afforded to local government as a partner.

 

Mr Byrne: NILGA recommends a protocol, but is a protocol strong enough?  Protocols can be fine, but there could be some sort of mechanism that is more effective in ensuring that a solvent development company carries out its duty and gets the roads and sewers adopted.  In the event of a development company going into liquidation, at the moment it seems that there is an escape clause for everybody:  the receiver, the banks and the former directors of the company.  Do you have any thoughts on that?

 

Mr McCallan: I agree that protocols can sometimes not have teeth and not be enforceable.  The protocol we are referring to is with the public agencies, but we have also recommended the strengthening of the bond and the capturing of that by the Roads Service from the bondholder should a developer, for good reasons or ill, not be able to fulfil it.  I understand and support the comment made.

 

The protocol we are proposing is similar to the protocol for fly-tipping, as we are asking the agencies to both dutifully and enthusiastically come together to deliver this.  Ultimately, however, there needs to be strong legislation and enforcement, as we recommended and as I am sure other stakeholders did, so that Roads Service are given real powers to move on this, should a developer renege, as has been the case in both parts of these islands.

 

Mr Beggs: You mentioned the instance in Craigavon, where three different agencies were looking at the situation.  Are there fundamental problems with legislation, when someone can occupy a house that does not have a sewerage system?  Was the occupant at fault for moving into the house when it did not have a sewerage system, or were the occupant's solicitors at fault?  Some of the problems may be caused by the developer.  Had the developer ignored all his responsibilities?  The answer in this case is yes.  Ultimately, it is very difficult to legislate for everything, but is there a fault in the legislation when someone could go into a house before there was a sewer?  Does that need to be changed before we start to look at how we fix such situations when they arise?

 

Ms Claire Bradley (Northern Ireland Local Government Association): That probably happens most often when people buy new houses.  In such cases, the buyers' solicitor will be furnished with an initial certificate to outline that planning permission has been granted for the sewers, the roads and whatever.  It is only after completion that the solicitor is sought for the final certificate and the works are signed off.  There is a question about the time period:  do you build all the houses first or ensure the roads are in first?

 

Mr Beggs: I have heard of some situations in which sizeable developments are occurring off private roads, for which there are no bonds.  Is there a particular problem with sizeable developments off private roads when there are no bonds, and do you have any suggestions as to how to solve it?  If there had been a bond, the bondsman would have come in and put the sewer in.

 

Ms C Bradley: Your solicitor should have your bond in place, particularly if it is a new development, under the legislation.

 

Mr Beggs: You are missing the point.  If a development is off a private road, you do not have to have a bond.  If a development has fewer than six units in a road adjacent to an adopted road, you do not have to have a bond.  A couple of people have contacted me who have gone into small developments right beside a long-established road, the road has never been finished and it has become apparent that there is no bond because there was no need for one, because the development was under a certain size.  A similar situation has arisen with the road being unfinished.  I am just trying to identify whether there is a problem with people occupying houses too early, or whether there should be another form of bond, even if the development is on an unadopted road, as another way of securing that the road will be finished.  That way, even if it is not up to full adoption standards, at least there will be tarmac on the road and the sewers will be safe.

 

Mr McCallan: I will attempt to answer that question.  The solution is a combination of tightening and widening the bond, to make sure that all of those instances fall under the bond system.  To go back to the member's earlier point, there is a gap in legislation.  All legislation is interpretable.  All legislation involves a range of people, from the homeowner — who, in my view, is the most innocent — to those who are professionally specialist and should, but do not always, spot everything, which suggests to me that there is an opportunity for the legislation to be tightened.  As the member inferred, that would not be a panacea, but there would be legislation and a protocol and it would address the bond enforcement issues that have been referred to. 

 

All that has been captured, and the issue is quite clear.  Constituents have approached the member who asked the question, and many councils have approached us.  In summary, my answer to those questions is that it can be solved.  We should come together to do it once and do it right.  We have exposed a problem.  Your inquiry identified that problem.  The solution is in our hands, but all those issues need to be developed in partnership.  We are here offering that partnership and at least some of the solutions, but we cannot provide them all.

 

Mr Beggs: I say very clearly on record that there is a gap where sizeable developments off private roads can be developed and everybody assumes that that will be an adopted road, but there is no need for the developer to finish it to make it an adopted road and there is no bond.  Some of these difficulties can also occur in smaller developments where there is no requirement for the road to be adopted.  The innocent purchaser, who may be purchasing for the first time, may not be aware of the detail.  I only learned of this detail in the course of this inquiry and after constituents approached me and I contacted Roads Service.  There are some gaps that are not fully understood.  We, as a Committee, ought to try to draw those out and help fill them.

 

Mr Dickson: Thank you for your presentation.  I feel that it perhaps solves only part of the problem.  It deals with the public sector side of things as regards protocols, but the other side to this is builders — I am reading a document from the National House-Building Council (NHBC), which provides a lot of the bonds — solicitors and, for many people, lenders.  I note that, in some other European countries, the problem has been resolved by the local authority, presumably building control or the equivalent, issuing a "fit for occupancy" certificate that states that there is sewerage, water, electricity, street lighting, and a whole list of things.  That meets your protocol argument, but it would require changes to the statute.  Although a protocol is very valuable, we also need fundamental statutory changes, particularly with regard to new developments and the whole issue of what is adopted and what is adoptable.

 

NHBC tells us that the Department has made changes.  Where previously Northern Ireland Water and Roads Service had a combined bond, there are now separate bonds.  I know that it is not for you to answer, but I would like to be in a position to ask them why that happened.  Did it come about because of the changes to Northern Ireland Water?  Presumably, it did.  Was it really necessary?  Can we put it back together, or is it wiser to have the two things separate?

 

It is very welcome that the statutory agencies come together and get their act together.  However, I would like to have heard NILGA's proposals on fundamental changes to statute.  Would you prefer that a bank, building society or solicitor should be legally obliged to tell people that they are simply not allowed to occupy a property until the appropriate certificate is received from the local authority?  Would you like that fundamental change to be made through legislation?  Would you like other legislative changes in order to resolve these problems?

 

Mr McCallan: There has been reference to the legislation.  Another member referred to our wish to develop the enforcement role of building control officers.  If we move towards that through the protocol and engagement events, both the information that we have already provided and the technical information from group building control officers could assist in getting us to the point of advancing the occupancy clause that you refer to.  From our point of view, if were we to assist in the co-ordination of further engagement, it would be a recommendation for us to pursue and look at the technical people in the sector.

 

Mr McNarry: Sorry for being out for the first part of your presentation.  You are welcome, Claire and Derek.  Maybe someone mentioned this, but you make reference to the National Assets Management Agency (NAMA), which I am pleased to see.  Have you any work done on that subject?  Are there any indications as to what problems may arise, and, if so, how they could be prevented?

 

Mr McCallan: Yes; as members will be aware, we requested information from a number of councils.  The evidence provided previously to this Committee included representations from Antrim Borough Council's chief executive.  My colleague Claire will hopefully be able to give you a summary of what was provided by our colleagues on that council.

 

Ms C Bradley: The issue was raised by Antrim Borough Council not on the basis of actual examples but more hypothetically.  It was asked whether, in cases where a developer goes into administration and a development comes under the remit of NAMA, the bond could be drawn down to complete the works and whether it being held by a third party would be an issue.  There was no definitive answer; it was more a theoretical example from the council.

 

Mr McCallan: There was a very strong expectation for us to assist in answering how that would be resolved.  The NAMA reference was made because of the possibility of such a situation happening.  However, as Claire said, it was not based on direct experience; it was based on people saying that the situation will happen and it needs to be sorted.

 

Mr McNarry: Is it our job or NILGA's job to get more information on NAMA and any situation like that, Chair?  Is anybody contacting our Department of Finance and Personnel about that?

 

The Committee Clerk: On the back of the documentation that NILGA provided earlier and as part of the inquiry, we invited representatives from NAMA to come here to give oral evidence.  That was declined, with officials saying that NAMA has no interest in respect of that.  On the Committee's instruction, we wrote again to NAMA and pointedly put the question in respect of surety bonds, etc.  NAMA's response, which is contained in the written evidence in members' packs, was:

 

"Further to your recent correspondence in respect of the above, I can confirm that NAMA neither issues nor holds any surety bonds for works in Northern Ireland with reference to the Private Streets (Northern Ireland) Order 1980."

 

So, on that basis, NAMA has declined to give evidence on the issue.

 

Mr McNarry: I do not want to dwell too much on this, and I suspect that NAMA might not respond, but is there any method by which we might request of NAMA a list of the sites that it is involved in?

 

The Committee Clerk: NAMA has indicated that it is not involved in any sites here and that it does not have anything under the Private Streets (Northern Ireland) Order 1980, which is —

 

Mr McNarry: It is involved in sites here; it is involved in land here, as far as I understand.

 

The Deputy Chairperson: David is right; we should do some follow-up on that.

 

Mr Beggs: If I heard the Committee Clerk correctly, he said that NAMA indicated that it does not hold any bonds.  However, bonds are always held by independent third parties, so NAMA would not hold any bonds if it had got the sites via developers.

 

Mr McNarry: That is a good answer, Roy.

 

Mr Beggs: I am just pointing out that that is not an escape route for them.

 

The Deputy Chairperson: If members have no further questions, I will thank the NILGA representatives for their submission and offer of help.  I am sure that, as we progress through the inquiry, we will be in dialogue or communication with you again, because we intend to come to some solid conclusions on all of this.

 

Mr McCallan: Thank you, Chair.  We are here to help.

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