Official Report (Hansard)
Date: Thursday, 18 April 2013
Committee for the Environment
Planning Bill: Stakeholder Event
The Chairperson: Good morning everyone and thank you very much for coming to Parliament Buildings to participate in this stakeholder event on the Planning Bill. I can see Tom coming. The Planning Bill was introduced in the Assembly on 14 January 2013, and it passed Second Stage on 22 January. Committee Stage began on 23 January and will conclude on 7 June, when the Committee will report to the Assembly. It is expected that the remaining plenary stages of the legislative process will take place in the autumn.
Today, we are focusing on five key areas of the Bill that have been raised consistently by you in your submissions. As you are aware, we are trying to condense as much evidence as we can into the time available — and I should not be vain; I need my glasses. Forgive me for a minute.
We have received over 100 written submissions from a range of individuals and organisations keen to make us aware of their thoughts on the Bill. I would like to take this opportunity to thank you for your written submissions and for your attendance today.
Before I outline the format for the evidence session, I would like to outline some housekeeping arrangements quickly. The toilets on this floor are outside any of the doors. Turn left along the corridor, and they are on the right hand side. If the fire alarm rings, which is unlikely, leave the Building immediately. Do not use the lifts. Follow instructions from the doorkeepers and Committee staff. If anyone feels unwell or needs assistance, please let a member of the Committee staff know immediately.
I will now outline the format for the evidence session. I understand that a paper setting out the order in which evidence will be taken has been provided. I trust that you all have a copy. There are five areas for discussion, and I will be strict in keeping you within the confines of the discussion area. Frustrating as it may be, we simply do not have time to go through every single aspect of the Bill. I hope that there will be some time at the end to address particular significant outstanding points that have not been addressed during our discussions.
For each area of discussion, I will begin by inviting comments from two preselected organisations. After that, I will open up the meeting for comments from the Floor. I ask you to be as brief as possible. We will stop you after three minutes, if necessary, in order to let as many people as possible have a chance to present their views. If you wish to speak, please signal to me or to the Committee staff. Members of staff have roving microphones, which must be used by those in the Public Gallery when speaking, so that we can hear you. You should also ensure that you state your name and organisation for the record because, as I have said, we are recording the session for the purposes of a Hansard report.
There will also be an opportunity for Committee members to ask questions of participants or seek clarification. Members can signal to Committee staff if they want to make comments or put questions to a participant or officials. Once an area has been dealt with, departmental officials will respond to the issues raised and answer any questions or points of clarification that Committee members may have. We will then move on to the next issue.
We will now start the discussions. Forgive me, I have a bit of a sore throat this morning and I hope that I can last through the whole session. I will do my best.
Clause 1 relates to the statement of community involvement (SCI). It introduces the requirement for the Department to produce a statement of its policy for involving the community in its development plan and planning control functions within one year of the clause coming into operation.
Ms Elaine Devlin (Community Places): We support the current reform of the planning system and welcome many of the proposals, particularly those that aim to improve community involvement. In particular, we welcome the requirement set out in the Bill for the Department of the Environment (DOE) to prepare and publish its statement of community involvement within one year of the Bill receiving Royal Assent.
The statement of community involvement will set out how local people and communities will be involved in planning decisions that affect them, including the production of development plans, decisions on planning applications and planning appeals.
We see the statement as a document that will set out clear principles, commitments and standards for involving local people and organisations in decisions that affect them. To enable people to get involved, groups, communities and individuals need to have the opportunity to learn about the relevant processes and develop skills and knowledge to influence decisions, and the statement of community involvement should recognise that. It should also indicate appropriate engagement methods to be used and should set out monitoring arrangements to ensure that it is making a difference. It should help to ensure that involvement is effective and influential; people are linked to the decisions that are being made; decisions better relate to community aspirations and needs; and that there is trust and confidence in the engagement process.
By clearly setting out how engagement will be front-loaded into the planning system, the statement of community involvement will contribute to the aims of planning reform by speeding up the planning process, ensuring that issues are dealt with at an appropriate stage in it and ensuring greater clarity for local people, communities and other stakeholders about the standard of engagement that will be expected in planning processes. The DOE statement of community involvement, which it has to produce within a year, will be a benchmark that will be used and looked to by local councils when it becomes their turn to produce their own statement of community involvement. Therefore, it is important that the statement is properly resourced, and it is important to get it right to ensure that consistent standards of engagement and involvement are applied across the region.
There are already lots of examples of good practice from England and Scotland, where local councils already produce statements of community involvement. However, it is essential that local people and communities are involved in the production of the statement of community involvement here so that local expertise can be drawn on and so that it can be tailored to meet local needs. It will also be important to involve the 11 council clusters in this process of developing the statements of community involvement.
Once a draft statement has been produced, it is important that sufficient time and resources are given to allow proactive consultation to take place with local communities and the public. Therefore, we recommend that work is begun as soon as possible on the statement of community involvement to allow appropriate time for a development consultation and to allow it to become operational and to be tested in a working environment before the handover of powers in 2015.
Another related provision in the Bill is the requirement for a pre-application consultation. Subordinate legislation setting out the standards for this is still to follow, so, obviously, this will be linked to the statement of community involvement and what is in there. Likewise, we would like to see those further regulations coming forward as soon as possible to allow proper time for development of these, consultation on these regulations and for them to be tested in a working environment before 2015. Although it is not included in the Bill, community groups often say to us that third-party appeals would also help to strengthen confidence of local people in the planning system and test whether engagement is really working.
The Chairperson: Thank you, Elaine. The next speaker is Ciaran Quigley. Ciaran, can you speak close to the microphone? It is quite a big room.
Mr Ciaran Quigley (Belfast City Council): I am the town solicitor with Belfast City Council, and, on behalf of the council, I thank the Chair and the Committee for the opportunity to contribute to today's proceedings on the Planning Bill.
The council welcomes the introduction of the Planning Bill in the run-up to 2015, when RPA will kick in. Hopefully, this will enable the Department to test some of the planning elements in the run-up to the relevant date in 2015 when the new arrangements will come into place. We commend that, in introducing the reforms set out in the Bill, all efforts are made to strengthen the relationship between the Department and the council, and we are working together on that. This is a real opportunity to further the effectiveness and resilience of the planning system in Northern Ireland.
We have a short comment on the statement of community involvement. It is a short clause, but it is an important provision. It ties in with what Belfast City Council holds most important in relation to communities and neighbourhoods. It is a central tenet of our corporate planning process, and we want to see how it will work out in practice. We want to work with the Department, and we welcome the opportunity to do so. At this stage, there is not much more that I can say, Chair. Thank you.
The Chairperson: Thank you, Ciaran. We have a bit of interference. I remind people to switch off their mobile phones. We now open the meeting to comments from the Floor. Anyone who wishes to speak should raise their hand and wait for the microphone.
Ms Lynn Scott (ASDA): I am head of town planning at Asda. My only comment on the proposed community consultation regulations is that we think that the 12-week prescribed period could be reduced to eight weeks. We are working in the Scottish system and are aware that the 12-week period is quite long. Most developers are geared up in advance of the submission of the proposal of application notice to go forward with the public consultation, and an eight-week period would be more reflective to ensure that there is not excessive delay upfront prior to the submission of the application notice.
My only other comment is that the regulations that come forward about what should be undertaken for the public consultation have to be very prescriptive. I find that the Scottish system works well. The requirements of a public consultation, a press notice and consultation with the local groups work well. However, the current English system is too ambiguous and can be open to interpretation. Due to possible concerns about judicial review, etc, I think that it should be prescriptive to the exact requirements of what the applicant will have to do.
Professor Greg Lloyd (University of Ulster): I want to make a point about a statement of community involvement. I think that we are in danger of missing a trick, because this is about engagement rather than simple involvement. Mention was made of Scotland. The evidence from Scotland shows that we need to encourage a wider democratisation of understanding about planning and to engineer, in some way, a culture change whereby we do not simply engage or become involved with planning when it affects us. We should, in fact, contribute to an ongoing conversation about the well-being of our land and environment.
Mr David Mounstephen (Royal Town Planning Institute Northern Ireland): We have over 560 members in Northern Ireland who work in the public, private, voluntary and education sectors, and we are the leading professional body for spatial planners. We welcome the opportunity to contribute to the debate. The Royal Town Planning Institute (RTPI) welcomes, in principle, the fact that the Department is to produce a statement relating to community involvement. Obviously, the detail of that statement is critical, and, at this stage, that is unknown. It has the potential to have very significant impacts on planning processes. Any statement must be truly useful to communities, the Department and to all those who engage with the planning system. It must not result in unnecessary delay or burdens on those people. The institute is very keen to be involved in the preparation of the statement and would welcome an early opportunity to provide input to it.
The Chairperson: We want to hear your concerns and comments, but we would also like to hear any recommendations to amend the clauses, if you think that that is necessary. Let us know in what way an amendment could address your concerns. We want to hear comments about changes and about how you want changes to be made.
Ms Liz Fawcett (Belfast City Airport Watch): I represent an umbrella residents' group. I want to seek some clarity. We have a comment about clauses 4 and 5. It is relevant to community consultation, which is not on your agenda as being discussed separately. Would you like to hear our comments now?
The Chairperson: Yes.
Ms Fawcett: We support the general thrust of clauses 4 and 5, which, as we understand it, give DOE the ability to widen the scope of notification of consultation requirements. However, we believe that it is vital that the legislation is more prescriptive where proposed development will clearly affect a wide area. We believe that it should be mandatory in such cases for the Department to notify everyone in that area. We have had an example of where publicity was not effective in a major development. That occurred last May, when the Department of the Environment was consulting on an application by George Best Belfast City Airport to vary the terms of its planning agreement. The figures submitted in the airport's application showed that up to 26,000 people would be affected by that. Our concern was that many of those people were completely unaware that the application was there. We can compare that with an example of good practice in a similar situation in Newham Council in England, when London City Airport submitted an application to vary its planning agreement. Newham Council sent out more than 10,000 letters to local residents to notify and consult with them. In addition, it displayed 200 site notices and advertised in local newspapers. We would like to see the legislation tightened up in that regard so that the Department is obliged to ensure that people on the ground know about it. In the application by Belfast City Airport, 21 schools were listed by the airport as being affected. Our understanding — and the Committee is very welcome to check this — is that none of those schools was notified by the Department of the fact that they had been named in that application.
We see this as an opportunity. We hope that the Committee will seek to tighten this up.
The Chairperson: OK. Thank you, Liz.
Mr John Moore (Holywood Conservation Group): Different groups in a community may have different views on a proposal, but there should be some definite way of ensuring that all aspects and all views on a new proposal are included in the statement of community involvement.
The Chairperson: Thank you, John.
Mr Elliott: I have a query. The proposed legislation indicates that each council will be responsible for its own statement of community involvement. How do people feel about that? Should there be one overarching statement of community involvement? I know that the Bill says that the Department will provide guidelines, but should there be at least some areas that it can work within, or will it leave it totally open to each council? I accept that what might be useful for Belfast may not be useful for Fermanagh or Tyrone, but I think there should be some overarching guidelines. How do members feel about that?
The Chairperson: I think that the officials may answer that later.
Mr Elliott: I was just wondering what the public feel about that.
The Chairperson: Representatives from the Northern Ireland Local Government Association (NILGA) are here. Derek is here. Would you like him to answer that?
Ms Karen Smyth (Northern Ireland Local Government Association): We welcome the Bill, and we know that a great deal of importance has been attached to piloting things such as the statement of community involvement. However, the time frame involved, when we are also coming up to local government reform, will be quite difficult for us. We look forward to seeing what the Department is going to produce and would be keen to use that as a potential model for councils to take their own statements of community involvement further. There is a regional approach at a departmental level. Once the councils take over planning, it is desirable to boil it down and take a more local approach to statements of community involvement. We want to see a consistent approach to formulating those.
The Chairperson: Perhaps officials could respond to that later. A number of people have expressed concerns about the tight timescale of one year before planning powers pass to councils and about how much involvement councils may have in the production of the statements. We look forward to hearing from Angus or Irene on that.
Mr Boylan: I would like to welcome everybody. I want to pick up on two points. The first is on engagement. Professor Lloyd is right about that: it has to be meaningful. I hoped that the session today would bring out ideas from you. We need to bring people together to make a meaningful contribution in the community, yet we have not heard anything about that. People have commented on the statement of community involvement, but no ideas have come back about who they think should be in place. Are we going to say that is going to be Tom, Dick and Harry? Who is it? Where do we start the process? Who is involved in it is one element; the other element is the decision-making process. What tools are we going to give to people to make that decision? Who will make the final decision? How will that stand up? As we bring out all the clauses today — and there are a lot more contentious clauses than this one — I want to hear more contributions. At the end of the day, this is going to be about the decision-makers, and they need to have the tools.
My other point is on the neighbourhood notification. We have said that we would like that to be in statute as part of the Planning Bill. Perhaps the departmental officials can address that. Neighbourhood notification is vital to this process, whether urban or rural. At present, that is not in statute. Chair, will the Department respond clause by clause or respond at the end?
The Chairperson: I will ask the departmental official to give his view on that.
Mr Angus Kerr (Department of the Environment): I thank the stakeholders for their positive comments about the statement of community involvement, which the Department views as important. Work will commence shortly on that. We will not wait until the Bill comes into effect before we bring that work forward.
Even though it applies to the full functions of the work of the Department in planning, we will not extend it to looking at development plans because the Department is not bringing forward any development plans before the transfer of functions. That is an area on which we would happily engage with people, particularly given that we view that work as being important as a test bed and a pilot for the work that will come from councils.
Engagement and involvement are the watchwords. It is our intention to engage with the community and key stakeholders as much as we possibly can in the preparation of the statement. As I said, we will commence that work very shortly. The sooner we get that done and the statement into place, the longer it will have to take effect.
A number of points were raised, focusing on publicity issues. Mr Boylan and others mentioned notification. We will take that work forward through subordinate legislation, so it will be fully consulted on. There are opportunities in that to look at how the Department currently undertakes its publicity around planning applications and planning functions to try, for example, to look at statutory requirements for neighbour notification. Other options include site notices and other forms of engagement and publicity that may be important. That work will flow from the Bill, be ongoing and be consulted on.
Comments were made on the provisions in pre-application community consultations. Those issues can be dealt with through the statement of community involvement and what our approach to that will be. With regard to the 12-week period, that is a period for which we have to be given notice, but it could be that the community consultation takes place in a much shorter time. We have to know 12 weeks before the application comes in, but it may come in in a shorter time, provided it meets the requirements of the associated engagement process.
Tom Elliott raised a point about the council approach after the Bill when the Planning Act is being implemented. When councils come forward, they will have the statement of community involvement that we will have prepared through the Bill for the Department. They will also have guidance on how we think the approach could work, which will be based on testing our statement of community involvement. However, the Act and probably the subordinate legislation that will flow from it on SCIs are likely to give councils the flexibility to do their own thing in statements of community involvement because part of it is to try to engender some innovative thinking in how to engage with the public and communities on planning. Certainly, looking at SCIs from other jurisdictions, I think that there are some novel and good ideas coming through from certain authorities on how they engage with the public in different ways. So, it is hoped that we will set a standard for consistency, which is important, and allow councils the flexibility to bring forward their own approach. Have I covered all the issues?
The Chairperson: Yes. So, there will be one statement of community involvement from the Department. Flowing from that, will each council need to produce something similar?
Mr Kerr: There is a requirement on us, while we are the planning authority, to prepare a statement of community involvement. That will take us up to 2015. There will be a similar requirement on councils post-2015 to produce a statement of community involvement on how they will involve the public in the way in which they want to conduct planning. There are basic statutory requirements that the Department and the councils need to comply with, but we want to allow councils the flexibility to take novel and different approaches in how they engage. There are all sorts of methods of engagement, as you are familiar with, ranging from the more standard traditional ways, such as public meetings, and so on, through to other methods that councils in other jurisdictions have moved into, such as social media. So, it is to allow councils to look at that and indicate what way they might like to move forward with some of those issues.
The Chairperson: Similarly, they have to produce that within one year of the functions being transferred.
Mr Kerr: No; that is a requirement on the Department. The councils will need to prepare a statement of community involvement before they get to a certain stage in their development plan process. It will be worded so that they have do it before they "consult" around their plan because it is important that they set out how they do that before they get to that stage in the plan.
The Chairperson: Does anyone want to ask Angus further questions? He is the policy director of the DOE.
Lord Morrow: Will we end up with 11 different plans?
Mr Kerr: Yes, there will be 11 different development plans. The facility is in the legislation for any of the 11 councils to come together and prepare a joint plan. I suppose it is similar to the current position in which, theoretically, you could end up with 26 separate development plans. As you know, the Department has tried to pull plans together: sometimes they come forward as one district, but often they are joint, such as the northern area plan.
Mr Boylan: I thank Angus for his responses. My only concern is that whatever the Department brings out, it has to be right. There have to be flexibilities, but that is down to interpretation, and you are allowing some flexibility for different council areas to deal with that. The stakeholders here should be involved in and aware of all that. The key element is what comes from the Department, allowing balance and flexibility to have all those issues tied in. People need to consider that and think about the contributions that will be made in that process.
Mr Kerr: I absolutely agree with that.
Mr Tony McGuinness (Belfast Holyland Regeneration Association): I am concerned about the use of the words "engagement", "notification" and "consultation". Is it the case that we will still be regarded as third parties under the new legislation rather than as neighbours, the community or people affected?
Mr Kerr: I am not sure that I follow the question completely, but the whole ethos around planning reform, the original Planning Act and the Bill is to increase meaningful community engagement and involvement in our overall planning processes. It is to try to make that stronger, more meaningful, to front-load it and have it as early as possible, through the plans that the councils will be preparing and the process of dealing with planning applications. That is why we have pre-application community consultation to allow communities to engage meaningfully even before the planning application is submitted.
Mr T McGuinness: Hopefully, this question is more precise: do we have a say in the decision-making? Do our public representatives — councillors — have a say in the decision-making? The planners are making decisions that affect communities. In fact, such decisions have almost totally destroyed our community. We do not have a say. They talk about overall public interest, but they do not know what that is. They do not know about sustainable communities. They do not know about health and education, public order or any of that. With our planning applications and appeals, we had the backing of the council, the police and many other agents, but that was simply disregarded because we were third parties.
Mr Kerr: The current and future system takes the views of objectors in planning matters very seriously. They are material to any planning decision. Councils are statutory consultees within the process. Of course, post-2015, local councils will make those decisions.
The Chairperson: We have to move on. We are running out of time already.
We will now discuss clause 2, the general functions of the Department and the Planning Appeals Commission (PAC), and clause 6, the determination of planning applications. Clause 2 amends article 10A of the Planning (Northern Ireland) Order 1991. A statutory duty is imposed on the Department and the PAC in exercising any function under Part II or Part III to do so with the objective of furthering sustainable development, promoting or improving well-being and promoting economic development. Clause 6 amends article 25 of the Planning (Northern Ireland) Order 1991 and section 45 of the Planning Act (Northern Ireland) 2011 by including provision that material considerations in the determination of planning applications include a reference to considerations relating to any economic advantages or disadvantages likely to result in granting or refusing planning permission. The majority of stakeholder commentary was on those two clauses.
I will first ask Nigel Lucas from the Construction Employers Federation (CEF) to speak.
Mr Nigel Lucas (Construction Employers Federation): Good morning, and thank you very much.
The Construction Employers Federation welcomes the opportunity to participate in this stakeholder event. We represent around 1,200 individual construction firms in Northern Ireland, large and small. The construction industry makes a substantial contribution to the local economy and supports many thousands of jobs, directly and indirectly, as construction activity also creates demand for goods and services in many other sectors.
Clause 2 introduces an amendment whereby the Department will have a statutory duty, among other things, to take into consideration the furthering of sustainable development, promoting or improving well-being and promoting economic development. From the business community's viewpoint, it is vital that Northern Ireland has a planning system that is fit for purpose. That not only will allow indigenous businesses to grow but will send a clear message to overseas investors that Northern Ireland is open for business. That will attract new businesses here and help to create new jobs in the local economy. The provision in clause 2 to take into account the promotion of economic development is wholly consistent with the commitment by the Northern Ireland Executive in the Programme for Government to ensure that 90% of large-scale investment planning decisions are made within six months and that applications with job creation potential are given additional weight.
As the measures relating to the promotion of good design and economic development were not consulted on with the stakeholders when the Planning Bill was at consultation stage, it is essential that they are robust and given full consideration in the context of the planning reform agenda. The CEF strongly believes that when an economic case for development is unequivocal, and as long as the planning application is consistent with existing planning policy and sustainable development principles, the planning application should be approved and any such proposed development should take place. That is not to say that rapacious entrepreneurs should be given the green light to cut down trees and tear up green fields in the name of economic progress. The CEF is the champion of best practice, which includes environmental protection and sustainable development. Any such planning application that has the potential to have a significant impact on economic development should be carefully monitored in co-operation with the various agencies to mitigate any threat of environmental damage so that the local economy can benefit from such an investment. That is particularly important in the current economic climate, where environmental protection should not be sacrificed for economic expediency. That said, the CEF and the wider business community strongly believe that clause 2 should have the full support of the Environment Committee and, indeed, the entire Assembly to facilitate inward investment, promote economic prosperity and help to rebalance the local economy.
Mr James Orr (Friends of the Earth): Thank you and good morning.
We have no problems with the aims of the Planning Bill to speed up planning applications, strengthen the economy and offer better environmental protection and community involvement. Friends of the Earth totally believes in that. The problem is that those aims will not be achieved if clauses 2 and 6 go through. The clauses will change the planning system for ever, and they will change it for the worse. They are simply repugnant and probably unlawful. They are repugnant to the stated aims of the legislation. These are the most far-reaching clauses, which I think have been slipped in through the back door; there has been no regulatory impact assessment, no equality impact assessment, no public consultation, no independent professional planning input and no comparative assessment with other jurisdictions or planning authorities. On that basis, this is the fourth attempt to introduce an economic supremacy concept. Therefore, I thank the Environment Committee for allowing us to give expression to these views.
The legal and independent professional planning opinion that we have received suggests that clause 2 will be interpreted as giving supreme weight on all applications, policies and development plans not even to the economy but — this is an important point — to narrow economic sectoral interests. The clause means that economic considerations will be the first among equals; in legal terms, primus inter pares. It will end up outweighing every other consideration. In simple terms, that is because sustainable development is already infused with the concept of economic interests. To add in this extra economic duty will, in practice, override all other considerations. This changes 50 years of planning law and practice. Planning goes with the land; it does not go with the applicant. Planning will no longer be in the public interest, which includes the wider needs of the economy, but will simply go with the narrow economic claims of a particular developer. I think that we need to separate those two points: the interests of the economy and the interests of the claims of a particular developer.
We honestly do not know what the problem is that these clauses are trying to solve. Northern Ireland already has one of the most permissive planning regimes in western Europe. Of all commercial applications, 96% are currently approved; 47,000 homes have been built in open countryside in the past 10 years in Northern Ireland; according to freedom of information requests, half of all quarry applications do not even bother applying for planning permission and instead are retrospective. You can even build a holiday resort in the setting of our only world heritage site. We simply do not know what the problem is that these clauses are purporting to try to solve. There are many planning problems: lack of consistency; lack of certainty; no up-to-date plans; environmental damage; and town centre decay. Those are real, valid planning problems. Developers, employers and architects do not tell me that the problem is that economic considerations are not given enough weight. So my recommendation to you is to delete the new economic duty and simply define sustainable development in an intelligent way that balances economic, social and environmental considerations.
I will be very quick on clause 6. We think that this clause is a gift to lawyers. As we all know, our planning system is already highly legalised and defined by endless battles in the courts. That is a sure sign of poor governance, poor policy and poor legislation. The clause is another example of very bad law and will be a source of endless litigation. Developers and others will seek to challenge, while the planning system has weighted economic advantage — and to whom?
Let us take a supermarket development. Asda will say that it will create 120 jobs; Tesco will say that it will create 140; and Sainsbury's will come in with 200. Locals will point to the economic disadvantage, saying that the price of their houses has been depressed because they overlook a car park rather than a green field. Others will say that house prices have increased. This will end up in very clumsy, unworkable and litigious bad practice, and we will be a laughing stock across the world. It is aggressive and unworkable, and it should not have reached this stage.
By supporting the supremacy premise in clause 2 and the chaos of clause 6, you will effectively be saying that all other planning considerations do not matter and that issues of landscape protection, protecting our cultural heritage, creating socially balanced communities, respecting nature, promoting the rights of individuals and helping a participative democracy do not matter.
Take, for example, the republican plot in Milltown cemetery, a children's play area, Navan Fort or Carson's statue in front of Parliament Buildings, none of which has any definable and tangible economic weight. These clauses could allow those places to be sacrificed for a car park, a bingo hall or an abattoir. I am not saying that that will happen, but you will allow it to happen if these clauses go through.
I am sure that some of you are thinking that it is all about the economy these days, so just let it run. That argument, no matter how seductive, is counterproductive for three reasons. First, it ignores the fact that the environment is the source of all our wealth, particularly in a country —
The Chairperson: Will you be quick?
Mr Orr: — OK — where tourism and agriculture are so important. Secondly, we currently measure the economy in GDP. Car crashes, terrorist attacks, deforestation and pollution all add to GDP. Is that the basis on which we want to measure good planning? Most importantly, finally, there is no evidence that planning is a brake on economic development. If there is, please show me peer-reviewed evidence from any other country that says that a good, healthy planning system is a brake on economic development. I can point to lots of healthy economies that have a good, robust planning system as a prerequisite.
Whatever you think about these clauses, I urge you to think that this is not about the economy or about planning. Please do not try to solve the problems of the planning system or the economy by dismantling the planning system. Try to solve the problems of the planning system by dealing with the problems of the planning system. [Applause.]
The Chairperson: Thank you, James. I know that I have given James a bit more time. We have allowed a lot more time for this discussion because it concerns two of the most controversial clauses. I believe that Nigel wants to say a little bit more.
Mr Lucas: Thank you, Madam Chair. I want to make a brief statement about clause 6, if I may.
Clause 6 introduces a new provision that material considerations in the determination of planning applications includes a reference to considerations relating to any economic advantages or disadvantages likely to result in granting or refusing planning permission. The CEF fully supports this provision, as it is wholly consistent with clause 2 on economic considerations. The construction industry can deliver key economic benefits to the local economy. The multiplier effect of the construction industry into the local economy has been well documented. Every £1 invested in construction generates £2·84 into the wider local economy.
Inward investment by new businesses will provide long-term economic benefits to Northern Ireland as a whole. New jobs mean prosperity and more money circulating in the local economy with an increase in demand for goods and services in other sectors that will also benefit.
Previous attempts to underpin the role of planning in promoting economic development have been unsuccessful. However, given the likelihood that the economic downturn will be with us for several years before any significant recovery is seen, we cannot let this opportunity be lost. That is not to say that developers should not have regard to good design, sustainable development and environmental impacts, but, on balance, the outcome must be in favour of economic considerations.
The Minister of the Environment succinctly summed up the situation in the debate on the Bill's Second Stage on 22 January 2013:
"There is a presumption of development in law. Some people do not like that, but there is a presumption of development in law. The purpose of the planning system is, working from that principle, to then mould planning policy and decisions that take into account all the other factors that properly and reasonably should be taken into account." — [Official Report, Vol 81, No 2, p70, col 1].
That sentiment is strongly supported by the CEF. We commend clause 6, and we ask the Environment Committee and the Assembly to embrace this golden opportunity to stimulate economic growth by supporting the inclusion of clause 6 unamended.
The Chairperson: May I ask a question, Nigel? It may be a follow-up from James's comment. How will we reconcile situations in which a developer wants to build, but a business says that doing so would cause it economic disadvantage, or a house owner saying that building a factory beside their house would bring its price down? Will we be pitching people against people or developers against developers? How can we manage that, Nigel?
Mr Lucas: I do not think that it is a case of competing with one another like that. What we are saying is that economic advantage and economic considerations should not overwhelm other considerations or be given principal weight. They should be among the equal determining factors, whereas, previously, they have not been. I will go back to the example: if you have a large-scale overseas investor looking to bring many thousands of jobs into Northern Ireland, surely that has to be taken into account when considering such valuable investment; at the same time, the application for such a proposal must meet and be consistent with planning policies and sustainable development.
The Chairperson: The problem is that a developer or business may say that they will create 600 jobs, but how can that be monitored after planning permission has been granted? There is no mechanism to determine whether, two years down the line, they have fulfilled their promise of creating 600 jobs. I am just highlighting the difficulties associated with weighing up the advantages and disadvantages. I will let other members come in.
Mr Weir: For anybody involved in planning applications at present, there is always some weighting of competing interests. When someone wants to build, there is often local opposition. So some of this will involve trying to weigh the advantage to the applicant against any disadvantage of potential loss of amenity or other losses. Sometimes, everyone is in favour of or against an application, but, generally speaking, any form of planning involves judging competing claims and interests. Therefore, although economic considerations may be in a different sphere, the Bill does not completely differ from what is there at present.
The Chairperson: At present, the considerations are things such as loss of light.
Mr Weir: A whole range of things is relevant to planning considerations. Quite often, an applicant's advantage, whether the application is of a retail or domestic nature, competes with disadvantage to others. You mentioned economic advantage or disadvantage, which is often involved with planning. Potentially, this will cut both ways, which we need to take into consideration. I am sure that many of us are often faced with constituents who say that the impact of such and such being built will economically disadvantage them because it will lower their house price. Until now, we have had to say that that is not a relevant consideration because, strictly speaking, it falls outside planning. Clause 6, however, cuts both ways and applies both to those who favour particular developments and those hostile to them. In every case, someone will have to make a value judgement, as happens at present.
The Chairperson: Will it create a greater potential for more litigation, legal challenges and arguments?
Mr Weir: With respect, if there is a conflict about how any planning decision is interpreted, there is nothing to stop anybody indicating that their views were not taken into consideration, and that applies to a range of things. I am sure that there are a lot of developments about which people said that the impact on them was not taken into account — I have seen many such developments. So this would not necessarily lead to any litigation additional to that which exists at present.
Mr Elliott: I listened to Nigel saying that he does not want outstanding weight placed on the economic aspects; rather, he wants them to be given equal weight and equal consideration. That makes me wonder whether the rest of the audience has a similar view. Are people saying that the economy should be given equal weight and equal priority in the legislation, or are they saying that the economy should be given a lesser weight?
The Chairperson: No, they are saying that it should be given equal weight, but they argue —
Mr Elliott: That is what Nigel from the CEF said, but I wonder what other people think. Are they saying that it should be given lesser weight?
Mr Boylan: Chair, I hoped that you would seek more comments from the floor before we responded. I want to hear people making proper arguments and giving examples of how they think that this will impact. I listened to James, and I know that he is passionate about particular issues. James, you need to demonstrate your case to the Committee. We will debate the issues and introduce a Planning Bill that will be handed over to the decision-makers.
I know that someone from the Bill Office is here. I want to find out about the legal stance of this clause because I do not want to agree a Bill that will not give people the right tools to make decisions. The next couple of years will be a transitional period in which the legislation will bed in, and I do not want to be hearing about legal challenges here, there and everywhere.
I know that this is not a debating forum, but I want to tease out the argument. We talk about community involvement and getting people together to make plans for growing their own communities and economies. We now say that there is an economic argument. You cannot separate planning and economics regardless of what you are doing. If you are building a house in the countryside or a factory in an urban setting, you cannot separate planning and economics. The issue is whether people believe that economic considerations should be given a determinate weight or full weight. That is why I want to hear people's arguments, and, to be honest, I am not. This is about economic consideration being one of the criteria involved in the planning process; it should not be about weight. If people have other ideas, I would like to hear them express them to the Committee. I do not agree that this clause is like planning policy statement 24 (PPS 24).
The Chairperson: I will open the floor to the stakeholders now.
Ms Judith Annett (Northern Ireland Biodiversity Group): I chair this group, which is a non-departmental public body of the Department of the Environment. We submitted a response to the Planning Bill, and I hope that the Committee will read the entire response because I do not want to read it out now.
The debate should hinge on what we mean by sustainable development. I thought that we all had, since 1992, a very clear view of what was meant by sustainable development. It is a form of development that meets the needs of the present but does not prejudice the ability of people in the future to meet their needs. I also heard that from the CEF. Much of what the CEF said is absolutely correct. We need circumstances in which developers can come forward with good projects and have reasonable expectations that those will be treated fairly.
We decided what sustainable development was in 1992, and we worked that right through until everything for which we use European funding must be sustainable. To my knowledge, everything promoted by the Tourist Board, the Department of Enterprise, Trade and Investment (DETI) and all Departments has to fit into that category and definition so that we are not taking away the capacity of future generations to be able to live; nor are we taking away the capacity of this generation to have clean water and clean air, safe food, an absence of flooding and an absence of major climatic events that we cannot deal with and control.
Sustainable development also requires us to look at externality. So, if a major economic development site is allowed on a floodplain, and a major flood occurs 10 years later, the cost is borne by the businesses involved. However, the public purse is also hit because it pays for the emergency responses, and so on. We have to look at every development and ask what effects it will have. I think that, in the Bill, "economic" means financial, and definitions are part of the problem that prompted so many people to write in about these two clauses. "Financial" rather than "economic" considerations must have been part of the thinking behind saying, "economic advantages or disadvantages" because economic effects are, for example, considerations that relate to any public or private economic effects likely to result. Those are on a very broad front of cultural, financial, danger, safety, clean air, health, etc. So, in the way that the clause is drafted, I think that economic effects differ from economic disadvantages
I find it difficult to make an intelligent response because there are no definitions. However, in summary, I think that we have been quite sophisticated over the past 20 years in putting forward the phrase "sustainable development". Even if the Northern Ireland Tourist Board does not say, "This is our sustainable tourism strategy" and DETI does not say, "This is our sustainable economic development", that is what they should mean. "Sustainable" should always be a word hidden in brackets. That is why the likes of the Quarry Products Association (QPA) and the Construction Employers Federation are making major efforts to reduce their impacts and to use smart technology so that they can continue to live in a society that wants us to be as wealthy in all those areas in 10 years' time as we are now. Therefore, I do not really see this as being an either/or; it is not pro-development or pro-conservation. I really do not like that kind of adversarial view of the Bill. We all agreed on the term "sustainable development", which everybody has been working on for 20 years. It feels as though putting in two separate things called "economic development" and "sustainable development", without giving us the benefit of their definitions, is a step backwards
If you define "sustainable development", you encompass everything that the CEF, the Quarry Products Association and I are talking about. My worry is that when you define "economic development" as something separate from that, you get a definition that, inevitably, is not as good as that of sustainable development. That, by implication, has an impact on the capacity of future generations to live as wealthily as we do now. There is a lot more in our submission, and I recommend that you read it, but that is the critical point. In many ways, a lot of us are talking about the same thing. Somebody has introduced the words "economic development", which seem to mean something different from "sustainable development". However, I do not think that, in reality, they do, which begs the question: do you really need to have the phrase "economic development" in the Bill because that is already included in "sustainable development"?
The Chairperson: Thank you, Judith. You say that sustainable development also includes economic development. Are you saying that sustainable development includes both socio-economic and environmental aspects?
Ms Annett: It does. It means that it has been taken into account. So, for example, Tesco comes forward with a really good project, which would create a lot of jobs and be welcomed by local people. If, however, the project has externalities — unintended economic, social or cultural effects — that cost other people money, comfort, health, wealth, recreational amenities or whatever, it must be looked at very strongly. Clause 6 states:
"considerations relating to any economic advantages and disadvantages likely to result"
That is part of what a good planner does, and I do not think that we will try to write into the Bill everything that a good planner does. If you are minded to keep clause 6, and I hope that you are not, the phrase:
"considerations relating to any public or private economic effects likely to result"
using the proper definition of the word "economic" would be better. It is about recognising that economic development projects — unless sustainable, which means that they have been thought through at the design phase — have externalities that may come back on the public purse or have some other effect on people, meaning that they may end up costing more than the current benefit. That is what planners do, which is a very big and very difficult job, but I do not think that we can include everything that planners need to do. The phrase "sustainable development" has been very well defined over the past 20 years. As part of the UK, we are subject to a lot of agreements on taking forward only sustainable development. To me, that seems perfectly adequate.
Professor Lloyd: Sorry to butt in again, Chair. Frankly, I think that we are on very thin ice. This debate is not about the planning system; it is, in fact, about land. We are doing exactly what the Planning Bill is trying to avoid: we are polarising the arguments, either in favour of economic development or environmental protection. Everything that I have heard here goes back to that polarity. It is adversarial in different ways. The language may be soft, but the positions are extremely far apart. I would argue that we need to know exactly what we are working with: what is the land economy, the land resource, of Northern Ireland? The last time I looked, we were not making land any more but losing it. Land is eroding and being contaminated, polluted and flooded. We must nurture this very fine and finite resource. The planning system is there to ensure the use and development of that resource in the interests of Northern Ireland. We have then to ask whether we understand the true value of that land economy.
I commend you to read the foresight study undertaken in England, which looked at the holistic value of land. Sadly, the foresight report has not taken a grip as it should have done, and one of the reasons for that is that we are in a long depression. There is reference in all places to growth, and growth at any cost conjures up frightened responses. We have to be very careful about that. The foresight study showed that it is possible to identify and bring together a balanced set of views, but then define appropriate administrative arrangements. If the foresight report is not enough, I commend you to look at the Scottish Government's land use strategy, which is taking very brave decisions in saying, "This is the value of land in Scotland. This is the land that can be used for certain purposes, and this is the land that is of better value to Scotland if kept in its natural state."
Mr Gordon Best (Quarry Products Association): I commend the Committee on organising the event today. Thank you very much for the invitation. I want to start by making a point about James Orr's earlier comments on the quarry industry. His figures were very misleading and historical. When we sat down with the DOE and the Planning Service to improve the standards in the industry, quite a lot of retrospective applications came in. Many related to minor issues, such as going slightly outside a boundary or having a weighbridge that needed planning permission. Today, I stand here very proudly as the representative of a quarry industry that is probably one of the most environmentally responsible on these islands, if not in Europe.
I agree with Judith that there has to be a balance. I will take off my industry representative hat and stand here as the father of a 14-year-old, a 12-year-old and a 10-year-old, who, God willing, will leave university with a qualification in 10 years' time. I hope and pray that all our children and grandchildren will be able to find jobs, build a home and live with their families here in Northern Ireland. Unfortunately, as Nigel highlighted, there have been delays in the construction of many very important infrastructure projects in the past number of years. Young students, architects, designers and engineers coming out of university have only one option: to jump on a plane to Canada, Australia or New Zealand. I want a planning system that is fit for purpose. Our future prosperity and quality of life depend on how we grow our exports, attract inward investment and attract tourists from all over the world to our beautiful country. We in the QPA recognise that. We do not want economic development at any cost, just for the expediency of creating jobs. As I said, there has to be a balance. I appeal to us all to agree that the balance between environment and economy is in the true spirit of sustainability, as Judith highlighted, so that all our children and grandchildren do not have to do what many, unfortunately, are having to do now and go to other parts of the world to seek work, leaving their parents and family.
Mr John Anderson: I am a member of a number of organisations, but I am speaking as a heretic today.
We are missing the point, which is this: what happens with the legislation in the real world when an application comes before a council planning committee? I had a conversation with a councillor a number of months ago. I will not embarrass him by mentioning his name or party. He told me that he was very keen on the environment and that he was a fisherman. However, he said that, in his borough, if an application comes in that will affect an area of prime landscape and a river but has significant economic advantage, his core vote would not allow him to vote against it, no matter what he thinks. The point is that we are front-loading legislation. The checks and balances are lagging behind. They will trail in, possibly well after a significant bad precedent has been set. There is a warning here, and excuse me for putting it in these terms: if the ghost of Charlie Haughey is not to take over our planning system, we need to be very careful about the legislation.
Ms Diane Ruddock (National Trust): I would like to pick up on some of the comments and questions that Committee members raised. Tom challenged us on whether we agree with the comment by Mr Lucas about simply giving the economy equal determining weight. The answer lies in what our colleague from the Northern Ireland Biodiversity Group said: it is there in sustainable development. I point members to the fact that PPS 1 includes a good definition of what sustainable development is. It states:
"Sustainable development seeks to deliver the objective of achieving, now and in the future, economic development to secure higher living standards while protecting and enhancing the environment."
That covers the economic, social and environmental aspects of sustainable development. That is already there in the planning system and the Planning Bill. The risk is that if you add in an additional clause to give further weight to economic considerations, you put that out of balance again. You invite and almost force decision-makers into a system of having to give the economy supremacy in places where that is not appropriate.
I also want to pick up on Cathal Boylan's very fair point, which is that the responsibility goes to the decision-makers, who, in a couple of years' time, will be councillors. They will be put in an exceptionally difficult position. He made the point that the decision-makers need the right tools. Those tools are really good development plans, the mechanisms to provide them and then a plan-led system in which the community is involved, and everybody understands how the system works. The plan for the area, agreed in advance, is your key decision-making tool. You then need really good statements of policy, whether that is our current planning policy or whether we look forward to the single planning policy statement (SPPS) coming later in the year. Those are the tools that the decision-maker needs. If you add the economic clause to the legislation and ask decision-makers to weigh economic advantage and disadvantage, which are ill-defined terms and do not actually even necessarily refer to a sound economic business case, you are not giving them tools but putting barriers, challenges, frustrations, delays and difficulties in their way.
My final point is in response to your question, Chairman. How are we going to do this? Are we going to pitch member of the public against member of the public, private developer against private developer? This is really about putting a benefit into planning legislation for private interest rather than the broader public interest, which is what the planning system should be all about. If these clauses go through, the stark answer to your question is yes: we are going to pitch members of the public against one another and developer against developer. That is not going to be a good outcome for the planning system.
Everybody is in agreement that we need a really good planning system to take advantage of all the good things that Northern Ireland has to offer. I genuinely believe that the expertise, passion and commitment in this room could work together very effectively to design that planning system and get the kind of balance that the system really needs.
The Chairperson: Thank you, Diane.
Mr Richard Buchanan (Institute of Directors): By way of background, the Institute of Directors (IOD) has consistently welcomed the Executive's commitment in the Programme for Government to growing a sustainable economy and investing in the future. We note that, in the PFG, the planning reform programme is identified as one of the building blocks in pursuing that objective.
For some years, the IOD has argued in favour of economic considerations being included in the menu of factors that planners must take account of when reaching planning decisions. In taking that stance, we have never insisted that economic considerations should eclipse all others when a final decision is taken. Far from it. We recognise, for example, that protecting the environment and promoting sustainability are also important components of growing the economy. However, we do not believe that they are mutually exclusive. We have sought a level playing field — a situation where economic considerations are among the other salient issues of which account must be taken when decisions are made. In that regard, we have taken comfort from the Minister of the Environment's statement to the Assembly on 22 January:
"I want to make it very clear that, whatever else the Bill proposes, it does not state, as PPS 24 suggested, that economic considerations should be given determinative weight." — [Official Report, Vol 81, No 2, p45, col 1].
We take the Minister at his word on that.
In some of the submissions made to the Committee on this consultation, it has been suggested that Northern Ireland is unique in attempting to introduce this factor in planning legislation. That is not the case. The importance of the planning system in relation to the economy has also been recognised in Scottish planning policy, which sets out the Government's key principles and expectations for development management. The first of those is that it should support the central purpose of increasing sustainable economic growth. In Wales, the Environment Minister, when speaking about a consultation on planning reform, said:
"As part of our ongoing review of the planning system I am keen to support the recovery of our economy by removing unnecessary bureaucracy and providing clarity for users."
So, there is general recognition of the importance of the planning system in building the economy. However, in conveying the intention to introduce economic matters as a mandatory consideration, the Bill is devoid of detail as to how that will be put into effect.
The IOD supports these clauses in the Bill because they establish the principle of taking economic matters into account. However, there is a caveat to that support. We want to see clear proposals from the Department on how that would work in practice, and we want a commitment from the Department that it will consult widely on those proposals before this clause comes into effect in law. We would be very happy to engage constructively with others in this room and the Department in putting good practice guidelines into place.
Our position on the proposal to support good design is similar. Who could argue against this as a genuine, logical proposal? However, what constitutes good design? What is good to some can be ugly and offensive to others. Who will decide what constitutes good design? How will they decide it? Again, although the IOD supports the principle, we want to see more detail from the Department on how that will be applied in practice.
In conclusion, we understand the fears expressed by many that these clauses will allow developers to ride roughshod over environmental issues in making planning decisions. There is no reason why that should be the case. What we want is a fair balance to be struck between the economic and other considerations. We believe that the Bill, at long last, offers that prospect.
The Chairperson: Thank you, Richard. I ask for comments to be brief, please. We have a large number of people who want to speak, and I want to give everyone a chance to have their say.
Mr Peter Carr (Belfast Metropolitan Residents' Group): Thank you for the opportunity to speak, Chairperson. I would like to take up Cathal Boylan's point about what the economic impact of these clauses might be. The way I would like to do that is to ask you to look at the world around you. The combination of an out-of-control banking sector — weakly regulated — and an out-of-control construction sector — weakly regulated — has destroyed three European economies in the Republic of Ireland, Portugal and Spain. These clauses will change the balance of power in our system. They will make it more like those systems that have conspicuously failed. I suggest that, had the clauses been in place 10 years ago, our economy would not just be in difficulty, it would be flat on its back. We would have had an excessive boom and an excessive crash comparable to that experienced in the South. I suggest to the Committee that these clauses are bad clauses. The economic prosperity of our society and of the construction sector lie in strong regulation. I ask you to reject the clauses.
The Chairperson: Thank you, Peter.
Professor Geraint Ellis (Queen's University Belfast): I am a professor in the school of planning at Queen's. I and six other colleagues, who are all experts in planning with over 180 years' experience of researching and working in planning and with three professors among us, have considered the Bill in some detail. We came to the conclusion that it is very difficult to stress the fundamentally negative impact of what is being proposed here. We have set out a proposal in a letter that details some of the potential negative legal and practical consequences of the Bill. We can discuss some of those in detail if you want.
To focus your minds on this, I think that we need to focus on three key characteristics of what is being proposed in these clauses: it is mad, it is bad and it is dangerous.
I suggest that it is mad because it is irrational. There is no need for what is being proposed, it does not address any actual problem and there is no proof that the economy is being held back by planning. We have heard from representatives of the development industry and the Institute of Directors that all they want is for the economy to be put on an equal footing. Well, it is already. Therefore, by their own admittance, there is no need for what is being proposed. They have said it themselves. They do not want any beneficial emphasis on the economy, and at the moment there is none; it is equally balanced. So, in a sense, it is irrational because there is no need for it.
It is bad legislation because the way that it is worded absolutely leaks ambiguity. As far as we know, it has not been subject to any proper appraisal and there is no research on the impact of what will happen, negative and positive. There has been no regulatory impact assessment or equality impact assessment, and we are just rushing into this, hoping that it will have the consequences we want. In our submission, we also highlighted some very fundamental legal issues. Unlike in Scotland and Wales, which have been mentioned, this Bill tinkers with some of the fundamental legal concepts of the planning system. It could all be undone as a consequence.
And it is dangerous. I do not know whether people fully understand what we are dealing with here. We have rested on 40 or 60 years of case law that has defined what is and is not a planning matter. What we propose to do here is to throw all that away and remake that case law. So actually, while we all want the economy to succeed, what we are going to do for the next five years, maybe, is to go to the courts to redefine what these clauses actually mean. I think that we will end up regretting this, for the economy and everything else.
The Chairperson: Thank you, Geraint.
Ms Michelle Hill (RSPB): I am a senior conservation officer with the RSPB. I just want to pick up on a couple of points that other folk have mentioned with regard to having a robust definition of "sustainable development" in clause 2. That would negate the need for the additional economic subclause. We should look to our friends across the water in Scotland, and to some of the Scottish policy, where there is a balancing of the economic, social and environmental gains. Scots seek them jointly through the planning system. They also relate to the five guiding principles of sustainable development that are set out in the UK's shared framework for sustainable development. Bear with me; I just want to read out those five guiding principles. They are: living within environmental limits; ensuring a strong, healthy and just society; achieving a sustainable economy; promoting good governance; and using sound science responsibly. I have not heard anything today from anyone that would contradict any of those guiding principles. If we had a definition of "sustainable development" in clause 2, that would negate the need for that subclause, and it would balance the three elements — the social, the economic and the environmental. That would allow us to achieve the right development in the right place. I just want to finish on this: the planning system should promote development that supports the move towards a more economically, socially and environmentally sustainable society.
Mr Gerard Daye (Mount Eagles Drive Action Group): I will be very brief. It is a mistake to keep environmental development separate. It is our view that it should be subsumed within sustainable development. The definition should be that given in PPS 1. There are good sustainable development definitions there. It should be holistic and include social, economic and environmental aspects.
From our local perspective, if the economic consideration became material, it would mean that our local glen, which we have campaigned to protect and which the Department, through the consultation process in the Belfast metropolitan area plan (BMAP), has conceded should be an urban landscape wedge — and we are hopeful that the Minister, through BMAP, will designate it — will be lost. We would see a lot of our natural assets destroyed. We strongly recommend that the sustainable development model is the one used and that the other one be struck.
Mr Gary Jebb (Queen's University Belfast): We very much welcome the opportunity to contribute to the debate. Thank you for the opportunity to consult on the Bill. However, amendments to clauses 6 and 17 introduce a level of additional requirement, paperwork and, perhaps, ambiguity that has the potential to cause further delays in the statutory planning process. Rather than improve its efficiency and effectiveness, it may make it a more sluggish process.
Obviously, clause 6, as we have been discussing, makes the assessment of economic advantages or disadvantages explicit. Although, in itself, that is probably not unreasonable, it is not clear why it is necessary. The principle of sustainable development is already at the heart of the planning process, and that includes consideration of social, economic, environmental and physical aspects. We believe that that balance is appropriate and relevant. We give some more detail in our written submission.
Let me touch on clause 17, which is not specifically on the agenda today. My organisation is 80% located within three adjacent conservation areas, and the change from a "no harm" test within the conservation area to an "enhancement" test creates a very significant additional challenge. Within the conservation area, we need to achieve an appropriate balance between preservation and development. Clause 17 raises the bar significantly and, from the university's perspective, it is very subjective. It will become a much more lengthy process. The university believes that clause 17 unnecessarily introduces a level of ambiguity into the planning process and that it has the potential to cause further delays. Rather than improve efficiency and effectiveness, it may actually hamper development.
Ms Gemma Attwood (Community Relations Council): I am a policy officer with the Community Relations Council. I thank the Committee for facilitating this conversation. For us, Northern Ireland is still a community emerging from conflict, and the realities of contested space need to be addressed. We cannot afford to think that our divisions are normal, that they will simply disappear and that they do not have any relevance to social or economic goals. We believe that public spaces should have permeable boundaries and should not become anyone's territory. They should be open and welcoming. I have listened to what people have been saying. We believe that the Planning Bill has a huge role to play in moving our society forward, creating shared, open and welcoming spaces, and addressing the issues around contested spaces. Given the conversation around the definition of "sustainability" and "well-being", we think that these will not be natural outcomes unless we get further clarification about what those definitions mean. We would like the Committee to consider that further.
Mr Herbie McCracken (Belfast City Airport Watch): [Inaudible.] — Belfast City Airport Watch and Cultra residents. I have been asked by my clients to attend this morning to put on record their concern that if the economic aspect is overplayed, it is very likely that — [Inaudible due to MLA mobile phone interference.] — 50 years younger.
It bothers me a little bit that you may run into trouble with the Aarhus convention. As you probably know, the Aarhus convention was set up in Aarhus in Denmark in 1998. Some 40-plus countries have signed up to be environmental democracies, keep their citizens informed about environmental matters, provide all relevant documentation and not allow legal costs to be prohibitive or unfair.
It is quite interesting that Cultra Residents' Association is the only body that has actually taken proceedings to Geneva. We had an oral hearing before a tribunal in the Palais des Nations in Geneva on 1 July 2009. The UK Government had four specialist lawyers there. To our satisfaction, we actually won the case. Before we brought the proceedings, we were told by a Government Department that the Aarhus convention did not apply to Northern Ireland. Some research showed that it did, and we had the success of a court hearing in Geneva. It seems to me that there is a real danger that if the economic aspect is overplayed, you are going to run into problems with Geneva.
Ms Jonna Monaghan (Belfast Healthy Cities): We also agree that it is a question of how we balance these things. We would like to point out that economic benefits do not arise simply from building new estates and developments, but from creating places where people feel safe and welcome and where they want to spend time. It could be about protecting and enhancing green space or our town centres. They can lead to direct new business opportunities. Yes, it can be difficult to quantify those, but that is there. In addition, there are inherent benefits for people that are about enhancing our primary asset, which is our people as well as our environment. There are other economic benefits. For example, if people feel more comfortable about socialising and meeting up in shared spaces, the costs that are associated with community safety can be cut. It can be about reducing ill health and healthcare expenditure, and it can also enhance people's access to local services and reduce their reliance on benefits. We really want to stress that it is important to keep the focus on how planning fundamentally shapes people's lives at the forefront of all of this. We are a bit concerned about the way that sustainable development is defined in the Bill. That is sort of lost. There is a clause on well-being, and it is really important to keep that. We are aware that people have had concerns about how you define that and how it will be operationalised, but it can be identified in a number of ways. For example, planning has a role in creating conditions that help people to access the services and amenities that they need to let them access services, socialise and choose health-promoting behaviours and activities. Through our membership of the World Health Organization's Healthy Cities Network, we have a wide range of contacts across the UK and, indeed, across Europe who are experts in this field and who would be really happy to assist with developing this, if that would be helpful.
Mr Mounstephen: The Royal Town Planning Institute supports economic development and recognises its importance. Indeed, it recognises the important role that planning plays in relation to it. However, the institute considers that the specific reference to the promotion of economic development undermines a proper understanding of sustainable development, which already includes economic development through what is often referred to as the triple bottom line approach, whereby social and environmental factors are considered alongside economic ones. It is in that context that the institute is concerned about the introduction of a specific reference. Indeed, it is the institute's position that, through sustainable development and a proper understanding of it, we can arrive at having greater well-being, which is one of the other general functions contained in the Bill. In our written submission, we proposed a form of words that further defined sustainable development and made reference to economic, social and environmental objectives, the idea being to try to unite these three important dimensions of sustainability rather than differentiating between them. The benefit of that also is that there is a degree of flexibility built in by balancing those objectives and deciding what weight should be attached to them, perhaps even at different stages of the economic cycle.
On the specific mention in clause 6 of economic advantages and disadvantages being material considerations, it is the institute's position that these already are material considerations and, indeed, that they are already addressed and covered through the regional development strategy, PPS 1 and PPS 4. No doubt, they will also be addressed in the single planning policy statement that is to be prepared.
The Chairperson: David, are you saying that we do not need clause 6?
Mr Mounstephen: Yes, it appears that way. The institute undertook a consultation exercise with its members and had a consultation discussion afternoon. Although there is a range of views and the institute represents over 560 members, it was understood and recognised that economic considerations do form part of those already considered in the planning process when determining planning applications.
Ms Tanya Jones (Fermanagh Fracking Awareness Network): We are deeply concerned about the effect that these clauses may have on the consideration of applications by major invasive industries, such as shale gas exploitation. It is inevitable that the applicant's assertions would be given the greatest weight, especially as other economic effects would be largely unknown, and those potentially affected may not necessarily even know it. Global experience suggests that estimates of jobs, revenue, etc, in these sectors are very unreliable and that they generally end up being revised downwards. Meanwhile, there would be significant economic detriment to existing sectors in Fermanagh, especially tourism and agriculture. There would also be significant economic public costs for infrastructure, the health service, monitoring, etc, that are not easily quantifiable. If something went wrong, as is statistically overwhelmingly likely, there would be increased costs on the emergency services, etc, and if an applicant ceased to be in business, there could be an enormous burden on the public purse for decontamination, etc. So, for all those reasons, we believe that clause 6 is unworkable and that the economic test in clause 2 is not a sufficient measure of the net economic effects for Northern Ireland. We think that, as others mentioned, a properly defined test of sustainable development is necessary to assess all the factors.
Ms Lynn Scott (ASDA): The wording of the clause does not suggest to our business that there is an open-door policy for all the applications that we are going to bring forward in Northern Ireland. However, we welcome the promotion of economic development, as it is a positive step towards recognising the important role that land development plays in the economy not just through the bricks and mortar but because it boosts employment opportunities, creates jobs and helps local communities. We are fully aware that it is an assessment of all the factors in the round, so the question is whether it will simply assess what job creation will be provided. You have to look into the financial impacts that any application brings forward.
However, we have concerns. If the policy is to be adopted successfully, there would need to be a clear understanding of what will be assessed and how. As part of that, it is key that there is sufficient upskilling of planning officers and councillors so that they can determine all the issues that are in front of them.
Mr James McCabe (Mount Eagles Ratepayers' Association): Promoting economic development is a material consideration in the decision-making process, and I have serious concerns about that. Who would police it? Who would enforce it? Who would be the economists? Does the Department have the trained people? Those points come from a community that has suffered greatly in the past as a result of the planning conditions that were given to developers. I am concerned that developers may inflate themselves and their egos again to the point where the bubble may burst for a second time. My main concern with that is that, in my area, an application for 1,200 houses has been ongoing for 12 or 13 years. The builder, who is bankrupt, is a consultant and is now making decisions in my community. That situation should have been redressed in the planning process here. Enforcement should be put into effect more strongly. My point is that we are again looking at a process of economic development, and we do not have the people or the enforcers to police it.
Ms Sue Christie (Northern Ireland Environment Link): There has been a lot of talk today about balance. That seems to reinforce the traditional view of planning, which is very adversarial, as it looks at a versus b and how they balance each other. If you listen carefully to the definition of sustainable development that Diane Ruddock read, you will see that it is about not balancing but how we achieve economic development, how we achieve a better way for our land and how we use our land intelligently. It is then about integrating all those factors to get a good outcome for now and for the children. Trying to look at economic factors versus environmental factors creates a false dichotomy, and we really need to look at how we achieve both.
I echo the RTPI's comments that the amendments are not needed and that they will cause problems. They will make the processes in the system take longer; they will not speed them up. Therefore, they will not facilitate what the Bill is trying to achieve. We are dealing with problems of definitions, issues with who benefits and who will be disadvantaged, and who will assess that. There are unintended, unacknowledged and unknown consequences, and all that has to be judged. We need to work together to identify the best way to achieve the economic development that Northern Ireland needs, not think about how we balance out and put economic issues against environment issues. It is a matter of considering how we achieve both.
The Chairperson: Are there any comments from members, or do you need any clarification from the stakeholders? If not, I will ask the departmental officials to respond to the comments that have been made so far. Angus, you have been scribbling away.
Mr Kerr: Yes, I have indeed. There are quite a huge amount of comments to respond to, so I apologise if I do not cover everything. It makes me think, Gordon, that you might want to think twice about advising your children to study planning at university. [Laughter.] I am only joking — I can fully recommend it.
The starting point is that the two policies are key policies that both the Executive and the Minister have brought forward and are fully behind. They feel that they are very much in line with the Programme for Government and the direction that the Executive want to move in. That is the first key point that I, as a civil servant representing the Executive on this particular proposal, need to make. I think that that needs to be brought through very clearly.
In a more general sense, the clauses are really not about compromising the wider purposes and principles of the planning system, which some people here today maybe suggested. I do not think that that is considered, from both the Minister's point of view and ours, to in any way be a likely result of the introduction of the clauses. We would not have brought the clauses forward if we did not think that they were legally correct. We are firmly of the view that these clauses, and the Bill in its entirety, are legally correct.
The other point that I will make is that economic considerations are already material. We have heard a lot about that today, and we accept that. So, the focus of the clauses is really to confirm and clarify that. They will continue to be material factors as a result of the Bill alongside all the other relevant matters in the decision-making process. The proposed provisions are in no way a direction that gives determinative weight to economic considerations, or, for that matter, more weight to any other considerations that are mentioned in the Bill. The weight that is to be attached to any material factor will be a matter for the decision-maker in the context of the nature and scale of the proposal, all relevant policies, planning considerations and the rationale behind the decision.
The promotion of economic development and clause 6 do not seek to elevate those objectives or considerations in the planning system. By definition, other material considerations are neither subverted nor diminished in importance as a consequence of those provisions, which, in time, will require further policy guidance to ensure that a balanced and proportionate approach is followed. We accept that there are issues about the definitions, understandings and practical outworkings of that guidance.
The Department does not intend this to lead to further bureaucracy or complexity, to slow the system down or to impact in any way on the overall character and integrity of the planning system. The inclusion of economic development proposals does not absolve the Department of its sustainable development duty, which is still firmly there. Neither does it divest the Department of any other statutory duties in the habitats directive, the strategic environmental assessment directive, the environmental impact assessment directive or any of the other environmental and other directives that the Department needs to take into account and that apply.
There is an issue with definitions, practical outworkings, and so forth. Further elaboration will be set out in the new single planning policy statement, which we believe will deal with the core principles underlying the reformed planning system. It is through that that we will address how economic considerations are to be taken into account along with the other considerations that pertain to the planning system. It will assert the purpose and role of planning, including the sustainable development context. All that will be consulted on widely, and I think that a lot of the concerns and issues that have come forward today will hopefully be addressed through some of that work. Where issues of definition and scope, and so on, are concerned, it is accepted that the planning system does not exist to protect the private interests of one person against the activities of another. That will not change as a result of the Bill; that is not what is intended in these provisions. Private interest can sometimes coincide with public interest, but the basic question is whether the proposal would unacceptably affect the amenities and the existing use of land and buildings that ought to be protected in the public interest. That is a fundamental principle in PPS 1, and I think that it will continue.
The economic advantages and disadvantages of any particular proposal would be considered not in the private financial interests of one individual or one group of individuals but as a whole in the wider public interest. As I said, that has to be explained in much greater detail as we move forward with SPPS and further guidance. The Department will publish that guidance, which will identify the scale of developments to which such considerations should apply. So, it is not our intention that someone who is building a small extension or a very small development does a lot of work on economic considerations. The focus is on the system not getting clogged up in that way. The proposed SPPS will set out details of economic considerations based on a balanced and proportionate approach, which, as I said, will work in the public interest. It will look at that in the round and will look to be proportionate. By that I mean proportionate to the scale and type of application that the Department is facing.
To finish, I will maybe echo some of the points that some people, including Sue Christie, Greg Lloyd and others, made about those provisions. From our perspective, we do not envisage the system moving forward in an adversarial way; that is not the intention of these clauses. I echo what I think Nigel Lucas said. We do not think that economy and environment have to oppose each other and that to go one way means automatically not going the other. As we move the planning system forward, and informed by this legislation and the other policy and guidance, we want to see a much greater alignment of the two, whereby environment and economy can work together for the benefit of all and bring a lot more collaboration in the system.
That is probably all that I have to say about economic considerations, so I am happy to take questions. I am conscious that I may have missed a number of other points, Chair, and I would be happy to come back to them.
The Chairperson: I think that you covered the overall gist of the argument. Angus, it is mentioned in the submission, and someone else said today, that clause 2 should perhaps explain very clearly what sustainable development is rather than having this extra element about economic development added on. Would it be easier or more acceptable to people to clearly set out what sustainable development is, including its economic, social and environmental aspects?
Mr Kerr: It may be more acceptable to people, but through the SPPS and further guidance, we will have to explain and define what those concepts mean and, more importantly, what they mean for planning. There are accepted definitions of sustainable development, many of which we heard today. A sustainable development strategy has been brought forward by the Office of the First Minister and deputy First Minister, I think, and —
The Chairperson: Should the definition be put succinctly into clause 2?
Mr Kerr: That is quite a bit of detail to go into for primary legislation. We would not ordinarily do that, but it could be looked at. You may want to put something into subordinate legislation or, as is probably more usual with such issues, into guidance and policy. PPS 1, which sets out the general principles behind the planning system, defines it at the moment, but we think that we need to develop it a lot further to bring it up to the present day and to reflect the pressures that are facing the system at the moment.
The Chairperson: David Mounstephen from the Royal Institute of Town Planners said that clause 6 is very difficult. The planners in the institute have been consulted, and they disagree, as they think that the definition should be in the Bill. Have you consulted your departmental planners? Have you asked them whether there will be problems implementing it?
Mr Kerr: Yes, we have. As you know, planning in Northern Ireland is divided between the operational directorates and the directorate on legislation and policy, which I am responsible for. However, we are very closely linked. In a sense, that is one of the advantages of having planning at central government level. Obviously, that will not be the case when we move closer to the post-2015 period and councils take on the more operational aspects of planning. So, we work very closely together. There have been concerns. There are issues, particularly with definitions and practical implications. Clearly, there will be a concern that we do not want to delay or stymie the planning system because of additional assessments and work that may need to be done but that is not necessary. That is why I say that, when we bring forward understandings of what it really means in practice, we need to be very clear that we discuss the scope and extent of the provisions, the types of applications that it will affect and how we handle those considerations for the applications.
The Chairperson: So, is it right to put that in primary legislation? Should it not be put into guidelines?
Mr Kerr: Yes. Our intention is to put it into guidelines and policy.
The Chairperson: It is in clause 6 of this primary legislation.
Mr Kerr: The intention is to explain in guidance and policy the meaning and definition of clause 6. The Minister and the Executive are very keen to clarify and confirm that those economic considerations are material. That is not to say that they are elevated, but it is important that we explain that and put it on a legislative footing.
The Chairperson: When you put them into law, they are certainly being elevated. There is no doubt about that.
Mr Kerr: There is an argument that legislation is the highest form of policy, in a sense. However, I think that you have to look at the wording and at what is actually said. Unlike the case with PPS 24, the view is that it is not giving greater or determinative weight to those considerations. We are simply saying that they are a material consideration, albeit that they are in the highest form possible, which is legislation.
Mr Boylan: I just want to make a quick point, Chair; I know that we are stuck for time. It is not new for us to discuss economic arguments when talking about planning applications; that has happened previously. However, if this is the way to go and it is approved, I suggest that we look at the actual application process and criteria and try to narrow them down a wee bit more. We could then also introduce new measures for checking for economic advantage or disadvantage. I suggest that the green book approach could maybe be considered. Somebody asked whether there were not economists in the Department. I am sure that there are. If we go forward with that, we could consider that in the process and think about where that would lie in the legislative process.
Mr Kerr: Absolutely. That is a critical point. We need to look at all the options that are out there for how we would make such assessments and judgements. Instinctively, my view is that we do not want to overburden the system with a lot of complexity and more complex tools than need to be brought to bear. Sometimes some of those considerations can be handled in a more strategic way. In some of the more well-publicised applications that were around in the past, such as those by Runkerry and Rose Energy, where those issues were critical, they really were considered in a fairly strategic sense. So, yes; all of that will be included. That is one of the things that we will look at with the green book.
The Chairperson: Can I just ask one question about an issue that I think Geraint Ellis from Queen's and James Orr raised? If you are saying that economic development is already a material consideration and that, in a general sense, there is already a presumption in favour of development in some planning, what problem are we trying to solve by introducing the two new clauses on economic development? Is there a problem that we are trying to solve by putting in those new clauses? If so, what is it?
Mr Kerr: Yes, I understand. The Minister and the Executive really just wanted to clarify and confirm that economic considerations are material and that they should be taken into account in determining planning applications and, under clause 2, in bringing forward policy. That is considered an important approach that they wanted to take.
The Chairperson: So, we are not talking about addressing a problem as such.
Mr Kerr: It depends on your view and assessment of the planning system and how it operates at the moment. There would be a presumption and concern out there that some of the work that planning has done in the past has tended to overemphasise some of the other types of assessments. I suppose those are statutory assessments that go through when you are dealing with some planning applications. Perhaps part of what lies behind some of this is that it is about how we make sure that we clarify that the economic considerations are also taken into account and are just as important, although not more so.
Ms Annett: I would just like a point to be clarified, Chairperson. Am I hearing that there will be two different definitions of economic development in the Department of the Environment, one that is called "sustainable economic development" and one that is called "economic development"? Will they be used at different phases? I think that it is important that we distinguish between development planning and development control. For development control, I would hope that there is one definition of development, which is sustainable development.
Secondly, is it not the case that the Government in Northern Ireland have put themselves behind sustainable development so that, when we get an aquaculture strategy, a coastal strategy or a marine planning strategy, they will all have the word "sustainable" in brackets before the word "aquaculture" or "tourism" or "development", even if it is not stated? That was the point of mainstreaming and of having a sustainable development strategy that all Departments are signed up to. It was also partly the point behind having a biodiversity duty, which came in with the Wildlife and Natural Environment Act. So, I just find it quite odd that there might be two definitions that the Government will support, one called "economic development" and the other called "sustainable economic development". To be honest, I thought that we had moved past that.
Mr Kerr: We are saying that we are going to have to explain how all this works. You are right to differentiate between development planning and development management, and so on. However, we need to explain how all those concepts work for the planning system, and that includes sustainable development. As I said, there are already definitions out there, and there is a sustainable development strategy that applies to all Departments already. So, this is really about looking at what that means for planning and the different aspects of planning that you referred to. That needs to be set out in the single planning policy statement, and it should go through the consultation, and so forth, which we propose to do as part of that work.
Mr Gerard Daye (Mount Eagles Drive Action Group): I have two questions to ask. If there is going to be a definition of economic development and sustainable development, will there be an implication that a part of the economic development would be unsustainable? My view is that it should all be sustainable economic development.
Secondly, would additional weight be given to consideration for fracking if that economic development consideration were put through?
Mr Kerr: Again, that is a definitional point. The Bill is not talking about sustainable economic development; it is talking about the concept of sustainable development, the promotion of economic development and, in clause 6, how that applies to the application process. So, it will be about defining those concepts and what they mean for planning. That will then inform planners and decision-makers about how they should balance some of those decisions in applications. However, no — there will not be a sense of promoting unsustainable economic development, and so forth. That is not the intention behind it.
Fracking is an issue to which the provisions of the Bill pertain, and it is another example of a controversial area of planning. Whatever we decide about how we move forward with some of those concepts, it will apply to fracking as much as to any other form of development.
The Chairperson: I am aware of the time. Some members may have to go fairly soon, and we may lose our quorum, so I will be very strict.
Clause 10 is our next discussion, which is on public inquiries. I will ask Elaine Kinghan, Sue Christie and Geraint to give a presentation. I will be really strict. You have three minutes each. Angus, please take notes and we will ask you to respond at the end.
Ms Elaine Kinghan (Planning Appeals Commission): Good morning, Chairperson. Thank you for providing me with an opportunity to give my views on this clause on behalf of the Planning Appeals Commission and to participate in today's stakeholder event.
Clause 10 will give the Department the power to appoint persons other than the Planning Appeals Commission to conduct public inquiries and hearings into major planning applications. I have three major concerns that I have set out in detail in my response to the consultation, and I now propose to summarise my views briefly.
My first concern is about independence. The proposal would mean that the Department, which takes the final decision on the application, would also be responsible for appointing the person to report and make recommendations to it on the proposal. My concern is that, in the context of public confidence, a person appointed by the Department would not be generally perceived or accepted as independent. Perhaps I can give you an example. Supposing the Department issues a notice of opinion to refuse a major planning application and the applicant decides that they wish to have a hearing into the reasons for refusal, would they feel confident that, if the Department was appointing the person to hear the case, that person would be independent? Similarly, would the person who was appointed feel comfortable if they were to disagree with the Department's view? It is essential that public confidence in the impartiality and independence of the public inquiry process is maintained, and, for that reason, there should be no change to the current arrangements, which are that the PAC, which is an independent body, should continue to conduct the appeals and inquiries.
My second concern is a procedural one. The PAC has considerable experience and expertise in what is a very difficult and complex area of work, and we have well-established procedures and practices for running inquiries of this type. Those who are involved in the process are familiar with our procedures and know what to expect. It is inevitable that there will be differences in the way that inquiries and hearings are conducted by the commission and departmental appointees. That would result in confusion for participants and could be considered unfair if there is a difference of approach.
My third issue relates to cost. It is worth pointing out that the commission does not charge the Department for its services. We run the administrative arrangements for the inquiries and provide commissioners to conduct those inquiries. I am confident that we have the capacity to do the work, and we will continue to give it top priority. Under the proposals, the Department would have to bear the costs of the person appointed, as well as taking on the administrative burden and costs of the inquiry.
Finally, in my response to the Committee, I suggested that, if there are residual concerns about the commission's capacity to undertake the work, an alternative could be to amend article 111 of the Planning Order to allow the chief commissioner to make temporary appointments for specific projects. I already have those powers to appoint assessors to assist commissioners but do not have the powers to appoint them to carry out work in making recommendations to the Department in their own right. However, that would preserve the principle of independent adjudication and ensure consistency of approach.
Ms Christie: Northern Ireland Environment Link believes that the independence — and the perception of the independence — of those who undertake public inquiries is crucial to maintaining the credibility of the planning system. Any direct appointments by DOE might cast doubt on that, given that it is the role for which the Planning Appeals Commission was established.
The PAC can, we understand, appoint temporary commissioners if in-house capacity is not available for a particular inquiry. Whatever procedure is established, it must ensure that there is no actual or perceived conflict of interest between the appointed commissioner and the parties involved.
The Chairperson: Thank you, Sue. Geraint, could you be as brief as possible?
Professor Ellis: I will. I was, largely, going to echo what was said, but in doing that I would like to draw on some research that Queen's University did two years ago. It was a far-reaching piece of work that looked at what the public — your constituents — felt about the planning system and the priorities for planning reform.
It made rather uncomfortable reading, because it showed a very high level of mistrust, I am afraid to say, in the involvement of the political class in planning, but also in the transparency and accountability of the system. For example, 70% thought that the public interest was rarely or never reflected in planning decisions. That partly relates to clauses 2 and 6 in our discussion, but it is particularly relevant to clause 10.
We have a perfectly adequate independent body, the Planning Appeals Commission, the independence of which, as far as I am aware, has never been questioned. Therefore, I do not understand the motives of the Department in wanting to appoint a member who will, inevitably, be at least open to the perception of being impartial.
The Chairperson: Do members have any questions for the contributors? If not, we will move on to the next discussion, which is about clause 20, on fixed penalties.
Ms Hill: Thank you for the opportunity to comment on this clause. The RSPB is concerned that clause 20 could be interpreted in such a way that, following the payment of a fine, no other action can be taken against an offender. Further clarity in the clause is required to communicate that fixed penalties should not be seen as an alternative to remedial action and that the offender could be liable to further action if the breach in planning control is not rectified. Payment of a fine should not absolve the offender of remedying the breach of planning control.
The Chairperson: Thank you, Michelle. We have only one contributor. Does anyone wish to speak on this issue?
Mr Moore: The previous contributor's opinion is that, once someone has paid a fixed penalty, there would be no further action. That is also our assessment. From that, it follows that, once someone has abused the planning system and has paid the fixed penalty, they can drive a coach and horses through the whole process with total immunity, which is totally wrong.
Mr T McGuinness: There are probably going to be contamination and rectification costs that will have to be paid from the public purse if people just get a fixed penalty notice. I do not think that any costs should be incurred by the public purse; they should be imposed on the developer.
The Chairperson: Thank you. If there are no further questions, we will move on. Clause 23 concerns the duty to respond to consultation. I invite Alderman Jim Dillon from the Northern Ireland Local Government Association to speak.
Alderman Jim Dillon (Northern Ireland Local Government Association): Thank you very much for the invitation to partake in today's event. As you know, I am representing NILGA. I have been requested to speak about the consideration of clause 23, which proposes that the statutory consultees are to respond to consultation requests within a prescribed period or such other period as is agreed in writing between the consultee and DOE. The clause also gives the DOE the power to require reports on the performance of the consultees in meeting their response deadlines. As a councillor of many years, it is my experience that the processing of planning applications is delayed many times due to the late response of statutory consultees.
NILGA and our member councils would welcome the removal of the uncertainty and the delay associated with late responses. However, we have a number of queries about how the clause will operate in practice. Who will have the authority to enforce it across the different Departments involved? There is also a worrying lack of clarity on the resource implications that statutory consultees face because of their responsibilities for planning applications and consents. We in NILGA have noted the potential for deeming no received response by the agreed date as offering a tacit non-objection. We highlight the potential issues that that could cause to public safety. If Roads Service is deemed not to have objected to a project that, in reality, has poorly designed road access, which later results in regular traffic collisions — that has happened in the past — would that not be a serious issue? NILGA is keen to ensure that the agreed targets for response are realistic and achievable so that they can be met. We cannot have any deviation from that. A regular report on performance would be welcomed. We very much hope that that is an improvement.
Ms Scott: Thank you very much for giving me the opportunity to speak on clause 23. We very much welcome the introduction of a strict 20-day time frame for consultation responses. It should be enforced with suitable penalties. Provision should also be made for applications that can be determined without response. We find that, currently, we can be delayed by up to two years, waiting for consultations to come through.
Clause 23 accommodates a get-out clause that allows for certain consultees to amend the prescribed period for providing a response. That would only add uncertainty to the process. It would likely be used to stymie development, as currently occurs. We also have the current issue whereby consultation responses are drip-fed and, hence, extend the time period to determine applications. The get-out clause should be removed and replaced with a policy that, in extreme cases, when a response cannot be provided within a 28-day period, provides for a holding position stating why it cannot be provided and what further work has to be undertaken. If that cannot be agreed, the applicant, at the very least, should be included in the discussions about what the extension of timescale should be.
Clause 23(3) states:
"The consultee must give a substantive response to any consultation".
That needs to be amended. We believe that the prescribed period should be 28 days. We also think that the applicant should, at the very least, be party to the discussions about amending that prescribed period.
In clause 23(4), there is a requirement to provide a substantive response. That needs to be prescriptive; it could be open to judicial review if every consultee does not follow the same route. As a minimum, there should be commentary on the application, a clear recommendation and any conditions that should be applied if they recommend approval. However, we find that many consultees ask for information that is not required at the application stage but relates to later points in the development process. We think that more regard should be given to the use of suspensive conditions by consultees instead of holding up development and the determination of applications with matters that can be dealt with at a later date.
The Chairperson: Thank you. Are there any comments from the floor?
Mr Lucas: This is probably the most important provision of the Bill. At present, the planning process is blighted. It requires consultees to respond within a prescribed period, but the blight arises from protracted negotiations in the planning process. In the past, it has not been unusual for a planning application to take two years or more to complete. Much of that delay has been caused by the failure of consultees to respond in a timely manner. The statutory time period has not yet been established.
CEF welcomes the clause. If a planning application has been properly made and meets all current planning policy, we recommend that the time period for the response should be no more than 21 days. However, we emphasise that consultees must give a substantive response within that time period and not hold off until the last day and submit a holding reply only for it to take another two years before the matter is dealt with. That would be totally unacceptable. If that is the case, there should be the right to ask the Department to intervene to require the consultees to give a substantive response within the prescribed timescale and to take enforcement action if that does not happen. In summary, a fixed timescale will bring greater efficiency and much more certainty to the planning process.
The Chairperson: Thank you, Nigel.
Mr Mounstephen: The Royal Town Planning Institute understands the motivation for the clause and welcomes it. However, some of our members expressed concern about its potential operational implications. In particular, there is a concern that consultees will send default responses requesting additional, perhaps unnecessary, information to buy more time, which may result in additional costs and delays for people engaging with the system. The duty of consultees needs to be clearly established. Any guidance in relation to procedural matters or what constitutes a substantive response must be drafted in such a way as to ensure the achievement of the objective of the clause, namely timely, final and correct consultations.
The Chairperson: Thank you, David.
Ms Christie: We totally support this clause in its efforts to speed up the process of applications and to clarify the position for the applicant. We have some worries about particularly complex and large applications that require detailed environmental impact assessments, because those may take longer than 21 or even 28 days to complete. However, it should be the duty of the consultee to let everyone involved know what the time delay is likely to be. There may be occasions when extra time will be required due to the complexity of the assessment.
The Chairperson: Your point is that it should not be one size fits all.
There are no more comments. Do members have any questions for the people who have spoken? Does anybody want to talk about any issues or clauses that we have not covered so far?
Mr Best: On a positive note, I want to commend the Department for inserting clause 9. It is a clause for which the Quarry Products Association and the RSPB had lobbied for quite a while. Historically, the only restoration processes to which you could leave a quarry or sand and gravel site were either landfill or agriculture. Now that this clause has been inserted, ecological processes can be included. Obviously, that will help us to enhance biodiversity and improve wildlife sites.
The Chairperson: Thank you, Gordon. Are there any more comments?
Ms Anne Casement (Ulster Architectural Heritage Society): I am conscious that very little has been said about Northern Ireland's outstanding built heritage. As an organisation specifically concerned with the built heritage, the Ulster Architectural Heritage Society is keenly aware of the added threat posed to that heritage and its potential — recognised in a recent debate in the Northern Ireland Assembly — to deliver long-term sustainable economic gains, by the inclusion in the Planning Bill of an additional, specific, statutory requirement to promote non-defined economic developments.
In support of that, I remind you that three of the five Northern Ireland Tourist Board signature projects relate directly to our outstanding built heritage. The economic benefits of our heritage are clearly accepted by the Tourist Board. I also point out that the built heritage sector is already significantly disadvantaged by the absence of a very skilled workforce that is capable of dealing with the very particular needs of these projects. There is also an issue in the fact that VAT is not chargeable on newbuild projects but is chargeable on the repair and alteration of existing buildings.
The Chairperson: Thank you.
Ms Victoria Magreehan (Ulster Wildlife Trust): The Ulster Wildlife Trust offered detailed comments, mostly on clauses 2 and 6. Most of that has been covered today, so I will not go into it again. There is one thing that I feel has been missed and to which I would like to draw the Committee's attention. The Committee will be well aware of the marine spatial planning framework that will be one of the outworkings of the Marine Bill. We urge consideration to be given to how the two planning systems will develop in tandem and to seek some consistency in the approaches taken to terrestrial planning and marine planning. The two systems need to integrate in order to avoid confusion and the potential for a lack of consistency in approach. Think, for example, of coastal developments, which quite often have to work with the two systems. That can lead to much confusion and bureaucracy, which can hold things up. We would like a lot of consideration to be given to how those two things develop in tandem. We feel that that is an important point.
We would also like coastal management to be considered in the context of climate change. Predicted impacts and the potential need for managed retreat in certain areas should be considered in that context. That is something to be considered in land and marine policies.
Finally, Greg Lloyd mentioned earlier that we would like to see the same leadership that has been shown in Scotland, which has developed a land use strategy. We would like the planning policies and Planning Bill to fit into that. We would like a debate around how we plan to manage the land as a resource for future generations. We would like the outworkings of that to result in a land use strategy for this country.
The Chairperson: Thank you, Vicky.
Ms Christine Cosgrove (Dundonald Green Belt Association): I would like to summarise on a couple of issues. First, clauses 2 and 6 are not required. As you have already said, economic development is considered in the planning system. My other point is on clause 23 and consultation. I agree that there should be a time frame for consultees to return responses. However, I would like to know when the consultation documents will be restored to the Planning Service website. That is the only way that third parties can discover what the responses to an application have been.
The Chairperson: Angus can answer that point later.
Ms Laura McDonald (Belfast Healthy Cities): I want to raise a general point. We believe that there is a need and an opportunity to review the list of statutory consultees. Health bodies should be incorporated, not least to ensure that the impact of major development on healthcare provision can be assessed and planned for. Access to healthcare remains an important need, and the planning system has a duty to ensure that that is aligned.
Similarly, we promote that education bodies should be consulted to ensure that school places can be appropriately planned for, as education is one of the key determinants of health and future earnings potential. It is important that the planning system supports equal access to good education for all. In particular, liaising with education bodies can help to avoid creating postcode lotteries, which not only artificially inflate property prices but create economic disadvantage by increasing inequalities in education.
The Chairperson: Thank you.
Mr Thompson: This is a personal submission, but I have been involved with the Waringstown Development Association (WDA) and various town development associations since prior to 2011. My experience of the planning system goes back to the public inquiry into the Craigavon development plan 2010 and the still unresolved planning issues in Waringstown. You will be aware as a Committee generally, if not as individual members, of the failings identified in those processes and the eventual acceptance by the previous Minister that the system was not fit for purpose. In our experience — it is a local planning office, so this may be totally inappropriate to other offices, but I can speak only from my experience — the planners have shown themselves to be virtually incapable of implementing the various changes to the existing system during that period, including — [Inaudible.] — PPSs, and so on and so forth. I had a direct phone call from somebody telling me that a PPS was just an advisory document and was irrelevant. We now have something written down that says that it is a mandatory document. That resulted in a situation in Waringstown where a listed building was literally desecrated, which should never have happened.
The point is that, in these circumstances, how can I, we and the public have confidence that the planning departments will implement in a genuine, correct manner whatever is decided upon? Surely we need to get the horse before the cart. If you have these ideas — [Inaudible.] — you need to have a planning department that can — [Inaudible.] — otherwise it becomes an irrelevance. Thank you.
The Chairperson: Thank you, Paul.
Mr Mounstephen: On the back of our consultation event with members, there was a discussion about clause 17, which deals with conservation areas. Some of our members feel that the introduction of the higher test would have the unintended effect of a lack of investment in our town and city centres where a lot of conservation areas are designated, and, consequently, derelict buildings in those locations could be affected. The institute questions why the Bill is deviating away from the nationally recognised preserve-or-enhance test by introducing new legislation that is open to interpretation and which will almost certainly be challenged in the courts.
If I may, I would like to say one sentence about clause 10, which deals with public inquiries and major planning applications. Our members also expressed concern about the proposal to introduce the option to appoint persons other than the Planning Appeals Commission. Thank you.
The Chairperson: Thank you, David. I think that Queen's mentioned that, too.
Mr Carr: I would like to make two quick points about clause 23, the first of which is about resourcing. I think that the councillor highlighted a very important issue. If timescales were tightened, there would need to be, I would imagine, some commensurate additional resourcing of the bodies that are required to make the replies. My understanding is that they already have a heavy caseload, and the consequence of tightened timescales could be an increase in the number of defaults. That would lead to applications being considered on an insufficient-information basis, which could have bad consequences. I sound that cautionary note and seek an approach that involves additional resourcing to make that workable.
Secondly, from speaking to planners, I know that there is a grievance from that side of the fence that has not been aired so far, and that is the untimeliness of the responses that are requested from developers. Developers' dilatoriness in providing information is a major cause of slowness in the planning system. If the timescales are going to be tightened on the one side, it would probably be sensible to apply the same logic to all requests for information and to tighten them on both sides.
The Chairperson: Thank you, Peter.
Ms Annett: It is also important that the Environment Committee considers what is not in the Bill. There are some important things going on, and this is a chance to sort some of them out.
In connection with what the representative from the Ulster Wildlife Trust just said, it is important that, if required, the terrestrial elements of the marine planning process are put into the Bill so that marine planning and terrestrial planning are consistent at the coastline, where they overlap in the intertidal zone. The Marine Bill addresses that, but there are no specific arrangements or mechanisms included in it. There probably needs to be something in terrestrial planning to say the same thing.
In order to comply with the water framework directive, it is worth considering the introduction of buffer zones on rivers, lakes, wetlands and coasts to protect their ecological functioning from certain types of development. That would need to be brought in somewhere in terrestrial planning.
The prevention of infilling any additional wetland areas in Northern Ireland, designated or not designated for housing or other development purposes, would be important to protect priority species, which also need space outside designated areas, and other biodiversity.
Another issue related to compliance with our commitments in the European biodiversity strategy is the retention of hedges and other field boundaries and trees as an unintended product of granting planning permission for housing, particularly in rural areas. In the agricultural measures and single farm payment compliance, there is protection for hedges and field boundaries, but there seems to be no protection in terrestrial planning mechanisms for those linear features that are wildlife corridors.
So, there are opportunities for the Committee to consider omissions from the Bill, as well as us commenting on what is already in it.
The Chairperson: Thank you, Judith.
Mr Best: I want to make a point about clause 24 on fees and charges. That clause brings in the multiple fee for retrospective planning applications. We fully support that, although we would like clarification from the Department on the definition of "multiple". We have had significant experience of that, particularly in the quarrying industry. In 2001-02, the aggregates levy was brought in. That piece of perverse legislation was supported by a number of the environmental groups that are represented here.
Over the past number of years, we have lobbied the Department long and hard for a clear deterrent for the setting up of illegal quarries or illegal manufacturing plants. In fact, earlier this year, for the first time, we as an association put in an objection to a concrete plant near Carrickmore in Tyrone. That plant started up illegally and was harming the legitimate businesses in the area. What did the Planning Service do? It simply sent out a letter asking the operators to submit a planning application within 28 days. So, the plant is still merrily operating away, harming all the legitimate businesses around it. That is a key area where there needs to be much stronger enforcement and an appropriate use of stop notices.
The Chairperson: Enforcement has always been a concern of the Committee.
Ms Catherine Blease (Northern Ireland Housing Executive): I have a couple of questions for Angus. With regard to clauses 2 and 6, you said the decisions have already been taken and that the Minister has asked for the provisions to go into the legislation. Has the decision already been taken to include those in the Act, regardless of the views put forward? If there are amendments as a result of the views put forward by organisations such as the PAC, will they be brought forward into the Planning Act? The Bill is temporary and the provisions will be repealed, so can we be assured that any amendments will be brought into the 2011 Act?
The Chairperson: Angus can answer that. The Bill will be enacted, hopefully, at the end of this year, and it will be repealed in 2015 when the Act comes into force. However, the clauses will be permanent and will be in the 2011 Act, which will be implemented from 2015.
Mr J Anderson: I have a question for Committee members or, indeed, for the Assembly. Given that we have been talking about it for about 10 years, and given that developers have had a right of appeal, why have we no third-party appeal? There has to be a reason behind that. [Applause.]
The Chairperson: OK.
Mr Boylan: I have a quick point. Our party has tried very hard to get third-party right of appeal.
Having heard the comments that have been made, I think that this has been a good exercise, and it has given us food for thought. I think that some people will come back with responses. I want people to think about how we can improve the application process. I know that there has been talk about people responding and giving them time to respond. There are a lot of planning applications out there where a box has not been ticked, and that can be by default or by design. I want people to go away and think about the actual application process. Clearly, there are things that can be improved.
The Chairperson: I want to ask Angus a couple of questions. First, Judith and Vicky talked about marine planning. I understand that the sustainable development bit in the Marine Bill, which is coming back to us soon, will be taken out. Can you confirm how we correspond between land planning and marine planning in the Planning Bill if that sustainable development element is not in the Marine Bill?
Secondly, I recall that the Minister said that he will produce a paper to consult on third-party appeal in the future. Is there any progress on that? Angus, the floor is yours.
Mr Kerr: Thank you, Chair. Clause 10 deals with the power to appoint independent examiners. That clause is already in the Act, so it has been through the scrutiny process of the Committee and the Assembly. It is born of nothing other than a concern with a lot of the delays that were taking place in the processing of independent examinations for plans and appeals in the past at the heart of the boom. It was considered that it was necessary as a last resort. Where it was not possible for the Planning Appeals Commission to undertake the particular activity, the Department and the Minister would have an opportunity to appoint someone else to do that. It is nothing more than that. There is no hidden agenda to bring in other people. I fully envisage that the normal run and course of events will be that the PAC will undertake the bulk — in fact, possibly all — of the hearings in the future. Nevertheless, at least that option is there.
As regards independence, article 123 of the order already gives the Department the power to appoint independent commissioners to undertake a hearing. Roads Service in the Department for Regional Development (DRD) does that for roads inquiries. I think back to my days in DRD and the regional development strategy (RDS), when we appointed independent examiners to undertake the examination in public. It is a normal procedure that government uses in all jurisdictions. Indeed, in the other jurisdictions where a two-tier system is already in place, the appellant body is part of the same department that runs planning. The key thing is that it is independent from the operation of the planning system — the councils, and so on, which undertake that.
The usual government processes for hiring will be gone through, and they are designed to ensure impartiality, that there is no conflict of interest and that the person appointed is correctly qualified to undertake the work. That is what happened with the Roads Service inquiries and the RDS inquiry. The procedural approach would be the same as that run by the PAC. There is no desire to move away from such a well-established procedure that has guidance, and so forth, in place. There would be a charge to the Department to run those things, which is, I suppose, another reason why it would be seen as a last resort.
I will move on to comments on the fixed-penalty clause. The approach with fixed penalties is to provide the Department with another enforcement tool. It would be used only for minor breaches. Paying the fixed penalty does not make someone immune from further enforcement action. If they were not to remedy the breach, you would simply issue a further enforcement notice and progress enforcement in that way. So, there is no intention to have the clause operate, in a sense, almost against enforcement, which, I think, was perhaps what some of the concerns were. Scotland has the provision, and we are looking at how it is working there, where it is really in its infancy. We will closely align our approach with lessons learnt from the way that it is used there. However, it is simply another enforcement option for the Department.
Clause 23 concerns statutory consultees. The statutory time frames for the provision of substantive responses will provide clarity to all users, and I think that that was broadly welcomed. For larger, more complex applications, the Bill provides the opportunity to agree a slightly longer time frame for response. It must be seen in the context of how we deal in future with elements of planning applications, such as pre-application community engagement and the process of engaging with applicants and developers at the beginning of the process to try to agree what is required for applications to progress. That includes agreeing what information will be needed and getting consultees around the table, where they can say what will be required and start to give commitments about timings and that sort of thing. It has to be seen in that wider context. Obviously, a time frame does not guarantee a response, and the Bill does not at present include provision for some sort of sanction, other than the fact that there will be a requirement for consultees to report on their performance. That can be looked at over time. As we move into a new planning system, with councils in charge, my instinct is that we need to allow a bit of flexibility to see how these things operate in practice. So, at this point, it is not envisaged that there will be financial penalties.
Some other issues came up under that. We will look in subordinate legislation at who the particular consultees should be and at the types of applications, and so forth. That will give an opportunity to look at health- and education-related applications, and so on. Peter raised the important issue of resourcing, and we are, again, in discussions with Departments and consultees about the associated resourcing implications. I think that Peter also mentioned the prerequisite that developers need to play their part in providing the information required in order for this to work effectively.
On the marine point, as we know, this Bill does not introduce development plan arrangements, but we agree that there is a need to align terrestrial plans with the new marine spatial plan. Under the powers of sections 8 and 9 of the 2011 Act, which will come forward with the plan provisions, the Department can prescribe matters that councils must have regard to in preparing their plans. So, there is an opportunity to build in a marine spatial plan through that.
Concern was raised about the reference to preserving and enhancing conservation areas in clause 17. That is actually just a reflection of existing policy as set out in PPS 6. The requirement to enhance applies only where it is possible to do so, so there is an opportunity to take a practical and sensible approach to that.
Some issues were picked up on as not being in the Bill, including buffer zones around wetlands, designated areas and hedges. They are probably best dealt with through forward planning from councils and, to some extent, policy, rather than through the Bill.
Gordon Best mentioned multiple fees, which is referred to in clause 24, dealing with fees and charges. That will be set out in legislation. The kind of area that we are looking at is two or three times the fee.
Catherine Blease made a point about decisions already being made. No, that is certainly not the case. Decisions have been made to the point that we are at now, in that this is the policy as contained in the draft Bill, but it has to go through the whole process of Assembly consultation and Committee scrutiny, which we are embarking on now.
Chair, you raised the issue of third-party appeals. The Minister does not intend to introduce third-party appeals at this time. He wants to assess the need for third-party appeals once some of the reforms in the Bill and the Act have begun to bed in, because he recognises that a lot of the changes that we are making through the Bill and the Act are about front-loading the system and getting engagement and buy-in from communities early on rather than at the end of the system. However, his mind is certainly not closed to the concept, and he wants to come back to that.
Has that covered most of the issues?
The Chairperson: Yes, more or less. As members have no further comments or questions for Angus, that concludes our session.
We very much appreciate your coming to this event. I am sure that I speak for the other Committee members when I say that it has been really productive and that your contributions have been wonderful. Thank you for sharing your thoughts and comments with us. The next step of the Committee Stage is that we will publish a Hansard report of today's comments. They will be sent for you to comment on in the next few days. Is that correct?
Deputy Editor of Debates (Office of the Official Report): Yes, by this day next week at the latest.
The Chairperson: The finalised version will then be published on our website under the Planning Bill consultation section. We will continue to look at your comments, and we will have our clause-by-clause scrutiny from next week, with the Department and taking into account the submissions and what has been said here today.
Finally, I say thank you to the Assembly's Office of the Official Report for reporting the event, to Assembly broadcasting for providing the recording service and to the catering staff. I thank the Committee Clerk and staff and Committee members for their support today. Once again, thank you very much for coming. We can continue our conversation over lunch.