Report on the Planning Bill (NIA 7/10)

Volume One

Planning Bill Report Vol One.pdf (3.76 mb)

Committee for the Environment

Report on the
Planning Bill
(NIA 7/10)

Together with the Minutes of Proceedings and Minutes of Evidence

Ordered by the Committee for the Environment to be printed 22 February 2010
Report: NIA 49/10/11R (Committee for the Environment)

Session 2010/2011

Fifth Report

Membership and Powers

The Committee for the Environment is a Statutory Departmental Committee established in accordance with paragraphs 8 and 9 of the Belfast Agreement, section 29 of the Northern Ireland Act 1998 and under Standing Order 48.

The Committee has power to:

  • Consider and advise on Departmental budgets and annual plans in the context of the overall budget allocation;
  • Consider relevant secondary legislation and take the Committee stage of primary legislation;
  • Call for persons and papers;
  • Initiate inquires and make reports; and
  • Consider and advise on any matters brought to the Committee by the Minister of the Environment

The Committee has 11 members including a Chairperson and Deputy Chairperson and a quorum of 5. The membership of the Committee since 9 May 2007 has been as follows:

Mr Cathal Boylan (Chairperson) 9
Mr Thomas Buchanan 7,8,13
Mr Trevor Clarke 15
Mr Willie Clarke 14
Mr John Dallat 5
Mr Danny Kinahan 3,4
Mr Patsy McGlone (Deputy Chairperson) 6,9,10,12
Mr Alastair Ross 1
Mr George Savage 2,16
Mr Peter Weir 
Mr Brian Wilson 11

1 On 21 January 2008, Alastair Ross was appointed as a Member and Mr Alex Maskey ceased to be a Member

2 On 15 September 2008 Mr Roy Beggs replaced Mr Sam Gardiner

3 On 29 September 2008 Mr David McClarty replaced Mr Billy Armstrong

4 On 22 June 2009 Mr Danny Kinahan replaced Mr David McClarty

5 On 29 June 2009 Mr John Dallat replaced Mr Tommy Gallagher

6 On 3 July 2009 Mrs Dolores Kelly replaced Mr Patsy McGlone as Chairperson

7 On 14 September 2009 Mr Adrian McQuillan replaced Mr Trevor Clarke

8 On 1 February 2010 Jonathan Bell replaced Mr Adrian McQuillan

9 On 12 April 2010 Mr Cathal Boylan was appointed as Chairperson and Mrs Dolores Kelly ceased to be a Member

10 On 12 April 2010 Mr Dominic Bradley was appointed as Deputy Chairperson

11 On 13 April 2010 Mr Brian Wilson was appointed as a Member and Mr David Ford ceased to be a Member

12 On 21 May 2010 Mr Patsy McGlone replaced Mr Dominic Bradley as Deputy Chairperson

13 On 13 September 2010 Mr Thomas Buchanan replaced Mr Jonathan Bell

14 On 13 September 2010 Mr Willie Clarke replaced Mr Daithi McKay

15 On 13 September 2010 Mr Trevor Clarke replaced Mr Ian McCrea

16 On 1 November 2010 Mr George Savage replaced Mr Roy Beggs

Table of Contents

Report

Volume 1

Executive Summary

Recommendations

Introduction

Consideration of the Bill by the Committee

Key issues

Clause by Clause consideration of the Bill

Appendix 1

Minutes of Proceedings

Appendix 2

Minutes of Evidence

Executive Summary

1. This report sets out the Committee for the Environment’s consideration of the Planning Bill.

2. The Bill consisted of 248 clauses and 7 schedules and provides the legislative basis for a comprehensive reform of the planning system in Northern Ireland and gives effect to the Review of Public Administration changes which will transfer the majority of functions and decision making responsibilities relating to local development planning, development management plus planning enforcement to district councils.

3. The Committee sought a balanced range of views as part of its deliberations on the Planning Bill and requested evidence from interested organisations and individuals as well as from Assembly Research and Library Services, other Committees and the DOE.

4. The Committee was broadly supportive of the Bill and agreed the majority of clauses are drafted. However the following key issues were identified, many of which led to Departmental or Committee amendments or recommendations for consideration and action.

Key issues

Clause-Specific Issues

Part 1 – Functions of Department of the Environment with Respect to Development of Land

Planning functions of the Department to encompass well-being (Clause 1)

5. Many responses to the Committee’s call for evidence indicated concern that the function of the Department identified within the Bill was no different from its role under current planning arrangements. Most respondents felt the function should be expanded to reflect the desired outcome of the new planning system and the Committee agreed with the concerns of stakeholders and sought amendments to improve the Department’s commitment to sustainable development and well-being as a way of recognising the full aspiration of the new approach to planning in Northern Ireland.

Requirements on Department and councils with regard to observing policies and guidance issued by the Department for Regional Development (Clauses 1, 5 & 8)

6. Several respondents to the Committee’s call for evidence were concerned about the difference in wording between the Department’s and councils’ obligations to policies and guidance issued by DRD compared with those of councils to the regional development strategy in Clause 8(5). The Committee sought an amendment to remove any risk of misinterpretation.

Sustainable Development (Clauses 1 & 5)

7. Stakeholders were concerned about the lack of commitment contained in the Bill for both the functions of the Department and those of local authorities. The Committee sought an amendment that would require the Department and councils to ‘further’ sustainable development.

Timing of Departmental Statement of Community Involvement (Clause 2)

8. Some organisations that submitted evidence to the Committee on this clause were concerned that the provision to produce a statement of community involvement had been in statute for several years but the Department had still to produce one. They suggested that a finite time period be allocated on the face of the Bill for its production. The Committee suggested that the Department should be given a year to prepare and publish its statement of community involvement from the day appointed for the coming into operation of the relevant section.

Part 2 – Local Development Plans

Department’s oversight powers (Clauses 11, 12, 15, 16, 26, 29, 69, 71 & 74 & 78)

9. The Department’s power of oversight and call-in throughout the Bill was an issue raised by many respondents to the Committee’s call for evidence on the Bill. The Department stated that it is imperative that policy and direction which are set at the centre, are adhered to and achieved through local development plans. Therefore it is necessary for central government to have a role in assessing local development plans and, if necessary, intervening in their production to achieve these objectives. The Committee was content with this rationale and the balance of Departmental powers proposed.

Inclusion of Climate Change in Survey of District (Clause 3)

10. The Committee was keen to see the inclusion of a requirement for local authorities to take climate change into consideration when conducting the survey of the district and asked the Department to consider amending the clause. In the absence of such an amendment from the Department the Committee agreed to bring forward its own at consideration stage.

Terms of oversight of Council Statement of Community Involvement (Clause 4)

11. Respondents to the Committee’s call for evidence suggested that any ambiguity in the meaning of this clause should be removed by replacing ‘may’ with ‘must’ or ‘will’. The Committee asked the Department to consider this but was advised that the existing wording allows the Department flexibility in how it deals with discrepancies it has with councils’ statements of community involvement. The Committee accepted this rationale.

Local Development Plan (Clause 6)

12. Many respondents to the Committee’s call for evidence called for the Bill to make a statutory link between local development plans and community plans and the Committee asked the Department to consider this. The Department replied that local development plans will be one way in which councils deliver their community plans however community plans do not yet exist in legislation. They informed the Committee that legal opinion suggests that any link should be established by using future local government legislation to amend this planning legislation. The Minister endorsed this position in a letter to the Committee.

Plan Strategy and Area Development Plans (Clause 8)

13. The Committee wanted more information on this clause and was advised that subordinate legislation would form the form and content of each development plan document, including mapping requirements and justification of the policies. The Committee accepted the information but noted that there needed to be clear links with current area plans and new plan strategies as they were being developed.

Independent Examination of plans (Clause 10)

14. There was considerable concern among stakeholders about the proposals in this clause to enable the Department to appoint an independent examiner. Some felt that it was giving the Department inappropriate control. Some suggested that if the Planning Appeal Commission (PAC) did not have the capacity to meet requirements, it should be tasked to PAC to make the appointment of an Independent Examiner. The Department stressed that PAC will be the first choice for conducting independent examinations however if they are unable to do so in the appropriate timescale, this clause would give sufficient flexibility to appoint an alternative examiner should the Commission not be in a position to conduct a hearing in exceptional circumstances when there are unacceptable delays caused by the increasing workload of PAC. The Department agreed to amend the clause to strengthen its position.

15. The Committee was also concerned about the allocation of costs for the process. Members were concerned that whilst the costs of PAC carrying out its duties are covered by OFMdFM, there was no indication of how an independent examiner would be paid if used. The Department later confirmed that it would pay for independent examinations which are conducted by an independent person it appoints.

Consultation with PAC (Clauses 10 & 16)

16. Aware that PAC in particular had concerns about the Department’s power to appoint independent examiners, the Committee asked the Department to indicate how it would ensure that PAC were supportive of the approach being proposed. The Department stressed that it sees it as critical that there is flexibility to appoint external independent examiners regardless of the level of resources which the PAC may have, as there may be circumstances where a large number of plans are submitted for independent examination at the same time. This approach would allow independent examinations to take place expediently, thus reducing delays to this stage of the development plan process.

Withdrawal of development plan documents (Clause 11)

17. There was a suggestion from stakeholders that details of the withdrawal of development plan documents should be on the face of the Bill rather than in subordinate legislation. However, the Department argued that due to the technical and administrative nature of the processes, it is more appropriate that these details are in regulations so that they can be easily amended as part of the evolution of the new planning system. The Committee accepted this response.

Review of local development plans (Clause 13)

18. Stakeholders had several concerns about the proposals for reviewing local development plans. Several wanted greater detail on the format of reviews, while others wanted clarification of the intervals at which reviews would take place. There was also a suggestion that councils should have responsibility for triggering the review process. The Department stated that regulations will require councils to carry out a review of their plan at least every 5 years however they will be able to trigger a review process at any time. The Committee was content with this explanation.

Directing councils to prepare joint plans (Clause 18)

19. While most stakeholders were content with this clause, there was concern that the Bill does not make adequate provision for linear infrastructure, such as electricity cables, that might transcend several council boundaries. The Department replied that the Bill provides the power for the Department to prepare a plan on a specific issue for the whole of the region as appropriate or alternatively the Department for Regional Development has powers to deal with Regional Planning through the Regional Development Strategy and the Committee was content with this response.

Cost of annual monitoring reports (Clause 21)

20. Councils in particular were concerned about the additional costs and workload that would be incurred by the requirement to produce an annual report to the Department. The Department replied that it sees the monitoring and review of plans as an essential element in establishing how plans are being implemented and whether any changes are required to keep them up to date and relevant. The Committee accepted this response.

Regulations (Clause 22)

21. Most respondents to the Committee’s call for evidence called for a commitment from the Department to producing the regulations required to implement the Bill and a timeframe for their production. The Committee was provided with a memorandum of delegated powers that set out the regulations provided for in the Bill and the Department provided a summary of the extensive programme of secondary legislation and an outline timetable.

Part 3 – Planning Control

Meaning of development (Clause 23)

22. A few respondents had concerns about the proposals for applications for demolition and suggested that they should only be required within conservation areas or where it affected listed buildings. The Department confirmed that this clause carries over the current provisions from the 1991 Planning Order and that currently consent for demolition is only required in these circumstances. The Committee was content with this clause.

Hierarchy of development (Clause 25)

23. Several stakeholders felt that it would be helpful if broad thresholds between major and local applications were given in the Bill and that it would be helpful if the Bill could outline circumstances in which the Department may reclassify a development proposal. The Department’s response stated that thresholds for regionally significant and major development will be provided in subordinate legislation, and this will be subject to consultation. The Department will be able to class a local development as ‘major’ where a request is made by the Council to do so. The Committee welcomed the detailed explanations provided and was content with the clause as drafted.

Definition of regionally significant (Clause 26)

24. Respondents sought confirmation that the Department would clearly define what constitutes regionally significant and major developments. The Department responded that the definition of ‘regionally significant’ will be defined in subordinate legislation. The Committee was content with this.

Pre-application community consultation (Clause 27)

25. Most respondents to the Committee welcomed proposals for pre-application consultation by developers however some felt the proposals in the Bill fell short of the Department’s commitments following consultation to make pre-consultation a compulsory requirement and for a report of the consultation to be made publicly available. The Department suggested that pre-application engagement with statutory consultees is part of creating a more proactive and positive development management culture. Effective front-loading of the application process, with a strong emphasis on pre-application engagement can lead to proposals being shaped prior to issues arising, shorter delays in processing times and higher quality planning applications. The Committee accepted the response.

Pre-application consultation report (Clause 28)

26. Many respondents to the Committee’s call for evidence wanted an opportunity to be provided for the public and community groups to comment on the report. The Department stated that the consultation report would be made available to the public and published on the internet.

Predetermination hearings (Clause 30)

27. Several respondents wanted to see minimum criteria provided in association with this clause and the Department responded that this would be provided by subordinate legislation.

Development rights for minerals (Clause 32)

28. In relation to this clause it was suggested that it should include permitted development rights for minerals. The Department responded that it was looking at this issue but needs to give the potential amenity impacts of permitted development rights more consideration.

Simplified Planning Zones (Clauses 33 – 38)

29. There were mixed views, both in the Committee and in stakeholder responses, in relation to the need for simplified planning zones. Several stakeholders welcomed provisions relating to simplified planning and enterprise zones and one stated that it would be keen that the non-port lands within the Harbour Estate be considered for such provisions. However, other respondents to the Committee’s call for evidence had concerns about the zones. Some felt it was important to exclude conservation areas and areas of natural importance from simplified planning zones, some that the justification for these anachronistic zones no longer exist and that simplified planning zones should be remodelled as Renewable Energy Zones and others called for more information relating to the proposed arrangements for ‘zoning’, in particular land zoned for sport and physical recreation.

30. The Committee sought additional information from the Department and Assembly Research to assist in their consideration on the inclusion of provisions to establish simplified planning zones. The Committee concluded that the provisions for simplified planning zones should remain in the Bill.

Neighbourhood notification (Clauses 41 & 42)

31. Concerns were raised by the Committee under these clauses in relation to the need for proper and effective notification of planning proposals. The Department informed the Committee that the Minister has agreed to bring forward subordinate legislation in relation to site notices and neighbourhood notification. The Committee welcomed this response.

Aftercare conditions on landfill sites (Clause 53)

32. In response to suggestions from stakeholders, the Committee asked the Department to consider expanding the scope of this clause to include a power to impose aftercare conditions on landfill sites. The Department responded that the management of landfill sites is currently dealt with under the Landfill Regulations (Northern Ireland) 2003 and the Pollution Prevention and Control and the Waste Management Licensing regimes, in the context of relevant EU and other requirements.

New material to appeal (Clause 58)

33. The Committee asked the Department to consider an amendment that would restrict the introduction of new material at planning appeals. However, on reflection recognised that there may be circumstances under which such information might be allowed and subsequently agreed a Departmental amendment to this effect.

Better enforcement of developer contributions (Clause 75)

34. The Committee called for better enforcement of developer contributions and asked the Department to consider how this might be achieved. The Department suggested that, similarly to notices of completion, this is an issue that could be considered to become part of the responsibilities of Building Control once the two functions were located within councils.

Part 4 – Additional Planning Control

Levels and scales of fines (Clauses 84, 102, 116, 125, 136, 133, 146, 148, 149)

35. Several respondents to the Committee’s call for evidence stated that the fines included in the Bill, whether listed as scales or levels, were no longer sufficient deterrents to prevent unauthorised demolition of listed buildings or trees. The Committee was mindful of this, and the fact that the fine amounts had been largely determined 20 years ago in The Planning (Northern Ireland) Order 1991, and recommended that the Department brings forward amendments to raise several fines and scales throughout the Bill.

Protection of listed buildings and trees (Clauses 84 & 125)

36. As a result of seeking higher fines in association with offences in these clauses the Committee recognised that there would be an increased risk to protected buildings and trees, and to those likely to merit such protection, and urged the Department to ensure that enforcement of compliance was maximised.

Revocation of listed building consent (Clause 97)

37. Some members expressed concern that current listing practices can hinder growth and development and the image of an area and suggested that more consideration should be given to supporting listed building owners. The Committee agreed it should recommend that guidance on applying PPS6 should encourage sensitivity and balance.

Arbitration (Clauses 97 & 103)

38. The Committee asked the Department to comment on the need for and provision of arbitration in relation to decisions to revoke or modify listed building consent or designate a conservation area. The Department replied that such powers were provided solely as a safeguard and will only be used in rare, exceptional circumstances if a council fails to fulfil its duties. The Committee was content with this explanation.

Roles of planning authority and NIEA in relation to hazardous substances (Clause 107)

39. The Committee sought more information on the way in which this clause would be implemented and the respective roles of the planning authority and NIEA with respect to its implementation. The Department clarified that hazardous substances must be disposed of in ways which render them as safe as possible and minimise their environmental impact according to NIEA regulations.

Inclusion of trees in local development plans (Clause 121)

40. The Committee asked the Department to comment on the approach proposed for dealing with areas of trees and dead and dying trees. The Department responded that this clause was transferring existing powers to councils with no radical changes. It confirmed that the clause provides that Tree Protection Orders (TPOs) will include areas of trees and does not see any requirement to expand TPOs to include areas of trees as entire woodlands can already be encompassed within TPOs and blanket TPOs are automatically established within conservation areas. The Department also indicated it would not change its approach to dead or dying trees but it will issue guidance on good practice.

Replacement of trees (Clause 124)

41. The Committee sought confirmation that sufficient flexibility would be provided with this clause to allow a tree to be replaced near, but not necessarily in, the place the previous tree stood where there had been a disease problem. The Department confirmed that this was the case.

Enforcement of tree protection orders (Clause 125)

42. In addition to recommending the fine in this clause be raised the Committee suggested that the two offences contained in this clause be codified into one offence. The Department accepted it might be possible to merge the two offences, but it refused to do so, on the grounds that it would reduce the flexibility to deal with the potentially wide range of contraventions under the clause.

Obtaining expert information (Clauses 128, 160 & 197)

43. The Committee was concerned about the availability and accessibility of expert information to councils once planning functions had been devolved. Members were concerned that where expertise was not required on a frequent basis there may be a considerable cost associated with obtaining it. The Committee also asked for confirmation that the possibility of expertise provided from the centre being charged as a cost to councils could be ruled out. The Department’s response indicated that statutory bodies will be designated through subordinate legislation as statutory consultees to the planning system and a list is being compiled with a view to public consultation. So far, there has been no discussion of fees with any of these bodies.

Part 5 – Enforcement

Enforcement (Clauses 130 & 152-154]

44. The Committee had concerns on enforcement and requested details from the Department on enforcement practices to date including the number of staff transferred from Planning Service to the enforcement section and a response on how the issue of legal costs influences decisions on enforcement action.

45. The Committee asked about the expectation on councils to carry out enforcement activities; was it a statutory function, for example and what were the resource implications. The Department replied that enforcement will be demand-led and that it is impossible to say how much resource will be required as some councils may put more emphasis on enforcement than others. The Department indicated that their key objectives for planning enforcement are:

  • To bring unauthorised activity under control
  • To remedy the undesirable effects of unauthorised development
  • To take legal action where necessary

Delegated powers of the Bill (Clauses 152, 153, 202, 208, 226, 229, 244, & 247)

46. The Committee was provided with a Delegated Powers Memorandum by the Department and sought advice from the Examiner of Statutory Rules in relation to the delegated powers within the Bill. The Examiner informed the Committee that most powers to make subordinate legislation within the Bill are in the form of orders and are afforded an appropriate level of scrutiny.

47. The Committee agreed its own amendment to the clause containing the commencement orders for Part 3 of the Bill to ensure that responsibility for planning control cannot pass to local authorities without the assent of the Assembly.

48. The Examiner drew the Committee ‘s attention to powers in 2 other clauses which are currently afforded no Assembly scrutiny and suggested these be made subject to negative resolution which the Department agreed to do.

49. The Examiner also drew the Committee’s attention to the fact that the Bill allocates the function of appointing special advocates for the purposes of this clause to the Advocate General for Northern Ireland. He pointed out that as a consequence of this, rules under Clause 229(5) would be made by the Lord Chancellor and laid before Parliament at Westminster in accordance with the negative procedure there (Clause 229(6)). The Examiner suggested that this is out of place in Clause 229 which, in contrast to 228, is the fully devolved provision relating to the public interest relating to the security of premises or property other than that within Clause 228. He therefore suggested that Clause 229 should more appropriately confer functions on the Department of Justice and the Attorney General for Northern Ireland and that all the rules made under Clause 229 should be subject to draft negative resolution. Following consultation with the Department of Justice, the Department agreed to make these changes.

Time limits (Clause 131 & 44)

50. The Committee questioned the continuation of a 10 year time limit for breaches of planning control other than for building, engineering, mining or other operations and the change of use of any building to use as a dwelling house Members asked if the Department would consider reducing this period on the grounds that a single period would reduce confusion and better enforcement should require less time to identify such breaches. The Department agreed to bring forward amendments bringing both periods to 5 years.

Stop notices (Clauses 134-136, 149-150 & 183-186)

51. The Committee received a written delegation requesting that the issuing of stop notices be looked at more closely during scrutiny of the Bill. The Department advised that powers in the Planning Bill will enable the planning authority to be able to prevent unauthorised development at an early stage without first having to issue an enforcement notice. In addition it allows up to 28 days for the planning authority to decide whether further enforcement action is appropriate and what action should be without the breach intensifying by being allowed to continue.

Consistency of enforcement (Clause 140)

52. The Committee sought an indication of if and how the Department would oversee how councils conduct enforcement and if there would be any mechanism to ensure consistency across the different council areas. The Department indicated that the devolution of planning functions to councils would undoubtedly result in variation between councils and that this was natural consequence of devolving planning powers.

Clarification of urgent works (Clause 160)

53. The Committee sought clarification of ownership under this clause and the Department explained that under this clause the planning authority (council or Department) may carry out and recover the costs of urgent works to either a listed building or a building in a conservation whose preservation is important for maintaining the character or appearance of that area. The Committee accepted this explanation.

Part 6 – Compensation

Compensation for revoking (Clause 178)

54. Most of the councils that submitted evidence to the Committee expressed concern about this clause. The Committee sought more information on revoking action to date. The Department explained that Clause 71 of the Bill allows the Department to intervene if a council is not fulfilling its duties to revoke a planning permission. When such an order is made by the Department it has the same effect as if made by the council. Responsibility for any subsequent compensation payment rests with the council under this clause. The Department indicated it would not consider an amendment but stressed that it anticipated such occurrences to be very rare and that it would also try to seek agreement with the council they do. The Committee accepted this position.

Duty of statutory consultees to respond (Clauses 187 & 224)

55. The Committee was extremely concerned when advised by the Department that in the event of a late or non-response from a statutory consultee, a council would be liable for its decision. This would apply even if a decision that had been made after the agreed time limit had to be revoked as a result of information coming forward from a statutory consultee that had not responded in time. In the Committee’s opinion this was unfair and it asked the Department to consider an amendment. When it refused to do so, the Committee agreed its own amendment to table at consideration stage.

Part 7 – Purchase of Estates

Interpretation of ‘reasonably’ (Clause 189)

56. The Committee sought clarification of the use of the term ‘reasonably beneficial use’ in this clause. The Department informed the Committee that ‘reasonably beneficial use’ is not defined in this legislation or in any equivalent UK legislation as each case should be examined on its own individual merits.

PART 8 – Further provisions as to historic buildings

The roles of different bodies relating to listed buildings (Clause 196)

57. Several submission to the Committee’s call for evidence requested clarification on the roles of the different bodies relating to listed buildings and the Committee sought further information on this issue. The Department summarised that the current powers of the NIEA will remain with the Department, with the exception of Building Preservation Notices, while the current powers of Planning Service, including enforcement, will devolve to councils.

Part 9 – The Planning Appeals Commission

Award of costs (Clause 202)

58. Several respondents to the Committee’s call for evidence felt that the PAC should have the power to award costs where it felt that an appeal had been made frivolously or vexatiously. The Committee agreed with this and asked the Department to consider an amendment which the Department agreed to introduce.

Part 10 – Assessment of Council’s Performance or Decision Making

Assessment of councils’ performance (Clause 203)

59. The Committee requested more information on how the level of scrutiny under this clause will tie in with the audit function of the Department. The Department replied that this clause gives it powers to conduct an assessment of a council’s performance or appoint a person to do so. The assessment may cover the council’s performance of their planning functions in general or of a particular function. The Committee accepted this explanation.

Part 11 – Application of Act to Crown Land

60. The only issues raised under this part related to delegated powers which are covered in Part 5.

Part 12 – Correction of Errors

Correction of errors (Clause 215)

61. The Committee was concerned that the wording of this clause was cumbersome and thereby difficult to interpret. Members asked if it could be redrafted and welcomed a Departmental amendment accordingly.

Part 13 – Financial Provisions

Fees and charges (Clause 219)

62. The Committee sought further information on the setting of fees and the ability of councils to recoup costs for other planning functions other than assessing planning applications. The Department responded that for the first three years after planning functions are transferred to councils, the Department would continue to set the fees. It will review fees after three years with a view to passing responsibility for fee-setting to individual councils.

Grants to bodies providing assistance (Clause 221)

63. One of the respondents to the Committee’s call for evidence suggested that this clause should be strengthened by the inclusion of a requirement for bodies to further the understanding of planning policy proposals. Also, that the oversight role of DFP was out of date and no longer needed. The Department agreed to amend the clause to address both issues.

PART 14 – Miscellaneous and general provision

Involving public agencies (Clause 226)

64. Councils that responded to the Committee’s call for evidence wanted reassurance that councils would be closely involved in any decision to hold a local public inquiry. The Committee also sought clarification of who would cover the costs of government agencies in the event of a public inquiry. The Department clarified that only it could initiate a local public inquiry and that it would pay for any inquiry it causes under this provision. The Committee was content with this response.

Compatibility of IT systems (Clause 237)

65. The Committee questioned the compatibility of council and Departmental IT systems. The Committee accepted the principle that as central and local government systems are required to be of the same standard, the expectation is that they will be compatible.

Part 15 – Supplementary

Interpretation of reserved matters (Clause 243)

66. On behalf of respondents to the call for evidence, the Committee asked the Department to interpret ‘reserved matters’ in this clause. The Department replied that ‘reserved matters’ is defined in subordinate legislation – the Planning (General Development) Order (Northern Ireland) 1993 and the Committee was content with this response.

Schedule 2 – Review of Old Mineral Planning Permission

Definition of dormant sites (Schedule 2)

67. The Department advised the Committee that it would be amending the definition of ‘dormant site’ in this schedule to take account of the fact that it has never been enacted and is now out of date.

Schedule 5- The Historic Buildings Council

Duration of tenure on Statutory Advisory Councils (Schedule 5)

68. One of the respondents to the Committee’s call for evidence suggested that the period of tenure for a member of the Council should be lengthened to ensure consistency of advice it gives to NIEA. The Committee agreed to recommend that this issue is taken into consideration during the review of the 3 Statutory Advisory Councils that is underway.

Issues relating to the Bill in general

Governance of Planning Functions at Council Level

69. The Committee was extremely concerned about the timing of the Bill because the governance arrangements for ensuring equality and fairness in council decisions are not yet in place. The Department insisted that the Planning Bill would not be implemented until Local Government Reform had taken place and the two processes would progress in tandem.

70. The Committee received a letter of confirmation from the Minister that planning functions would not be devolved to local authorities until the necessary governance arrangements were in place.

71. The Committee also agreed to table its own amendment that will prevent commencement of any powers in Part 3, devolving planning functions to councils, without the prior approval of the Assembly (see delegated powers).

Resources

72. All respondents to the Committee’s call for evidence raised the issue of resources. Many were sceptical of the Minister’s suggestion that the process of transferring planning powers to local authorities would be cost neutral and the Committee asked the Department for more information.

73. The Department reminded the Committee that it is in the process of consulting on a radical reform of the planning fee structure and maintained that it will be ensuring that in due course fees will more accurately reflect the true cost associated with the development in question. The Committee welcomed this, acknowledging that the current fee structure was out of synch with the work involved.

Capacity and Training

74. The Committee recognised that the transfer of planning functions to local authorities represented a seismic shift in approach and involvement for councillors and council staff. Along with many respondents to the Committee’s call for evidence, members called for training and capacity building to be seen as an essential part of the process.

75. The Department agreed and indicated it was drawing up specifications of how the process would work and would be carrying out a series of pilots across all councils to address the change in culture required.

Land Use Strategy

76. The Committee recognised the need for the Department to retain control over major planning decisions and those of regional significance and welcomed proposals for secondary legislation to set out the criteria for these. However, members inquired on what basis decisions of these kinds would be made by the Department and how, in a plan-led system consistency would be achieved for decisions across Northern Ireland.

77. The Department indicated that the overarching strategy for regionally significant and major planning decisions would be the Regional Development Strategy but the Committee stressed the need to think beyond this to full land use planning akin to that being carried out in Scotland. A land use strategy would look beyond regional development taking other and take that looks at the whole region

Review Period

78. Several stakeholders expressed concern about the process of devolving planning functions to local authorities and suggested that there should be a requirement in the Bill for the Department to review implementation of the bill within 3 years of it being enacted and periodically thereafter. The Committee considered bringing forward its own amendment but eventually agreed that the decision if and when to review implementation of the Bill should be left to policy rather than legislation.

Third party right of appeal

79. The majority of respondents to the Committee’s call for evidence on the Bill believed it would be very important to include provision for third party right of appeal in the Bill. Some felt there may be scope to introduce it initially as a transitionary provision, while the return of planning powers to local authorities embeds whilst others called for it to be introduced on a limited basis to ensure that vexatious appeals are curbed. Research provided to the Committee outlined the pros and cons of the inclusion of third party appeals and identified various models that could be adopted.

80. In response the Department stated that the Government response to the Planning Reform policy consultation was agreed by the Executive on 25 February 2010. The response indicated that given that the Department had made it clear that there were no proposals to make provision for third party appeals in the current package of reforms, and on the basis of the analysis of responses, there did not appear to be any immediate compelling reason to proceed in the public interest towards making provision for third party appeals in the current round of planning reform proposals.

Community Amenity Levy

81. There was much discussion in the Committee about the possibility of introducing a Community Infrastructure Levy. Many respondents also believed that consideration should be given to introducing this, at a time to be specified, in order to increase planning gain. 71% of respondents to the Department’s consultation on Planning Reform agreed that developers should be required to make a greater contribution towards the provision of infrastructure but no reference is made in the Bill to a community infrastructure fund or similar levy arrangement.

82. The Committee considered an amendment of its own to introduce powers to enable the Department to introduce a Community Amenity Levy in the future but eventually agreed that in the time available it was unable to conduct sufficient research to be sure this was the right approach. Instead it agreed to recommend that the Department should explore the potential of a Community Amenity Levy in the future.

Marine Spatial Planning

83. The Committee expressed disappointment at the absence of any recognition of the roles of the Department and local authorities in relation to marine spatial planning. Neither was there any indication of how potential overlaps between terrestrial and marine planning would be addressed.

Notices of Completion

84. Several respondents to the Committee’s call for evidence suggested that notices of completion should be introduced through the Bill. The analysis of the provisions of the Bill provided by QUB, through Assembly Research and Library Services, also drew the Committee’s attention to the lack of inclusion of notification of development and completion of development certificates.

85. The Committee agreed to recommend that the Department revisits the issue when the two functions, planning and building control, are together in council.

Chief Planner

86. Several respondents to the call for evidence and the QUB analysis paper on Implementation, Performance and Decision making (Appendix 5) noted that in other regions of the UK, a Chief Planning Officer provides a professional leadership role to complement administrative leadership provided through elected representatives and their departments. The Department advised that the appointment of a Chief Planner does not need to be provided for in legislation but may be appointed at any time such a policy decision might be made.

Ensuring vulnerable and hard to reach groups can engage in the planning process

87. The Committee was concerned that there was a risk that community engagement processes would exclude vulnerable groups and those that were hard to reach. Again reference was made to the Equality Impact Assessment (Appendix 6) which identified that low level literacy rates for example, might act as a barrier to full participation in some planning processes.

88. The Department noted that the Bill requires it to prepare a Statement of Community Involvement setting out its policy for involving the community in its development management functions. However its aim is to encourage and facilitate the involvement of the community rather than require it. The Committee accepted the response but noted the need for close links between a local authority’s community plan and the local development planning process.

The legacy of area plans

89. Several respondents, especially local authorities, were concerned about the legacy of current area plans when a new plan-led system came into being. They asked if the area plan framework that is to be inherited by councils will be obsolete and what would happen where area plans were still not in place.

90. The Department advised that plans which have been adopted before planning powers transfer to councils will continue to apply until the new council’s own local development plan is adopted.

Recommendations

Clause-specific recommendations

Levels and scales of fines (Clauses 84, 102, 116, 125, 136, 133, 146, 148, 149) Clauses 84, 116, 125, 136, 149 & 149

91. The Committee recommends that the fines of £30,000 are amended to £100,000 to act as a deterrent and reflect the seriousness of the offences as follows:

Clause 84, Page 53, Line 37
Leave out ‘£30,000’ and insert ‘£100,000’

Clause 116, Page 75, Line 31
Leave out ‘£30,000’ and insert ‘£100,000’

Clause 125, Page 80, Line 26
Leave out ‘£30,000’ and insert ‘£100,000’

Clause 136, Page 87, Line 18
Leave out ‘£30,000’ and insert ‘£100,000’

Clause 146, Page 95, Line 15
Leave out ‘£30,000’ and insert ‘£100,000’

Clause 149, Page 98, Line 6
Leave out ‘£30,000’ and insert ‘£100,000’

Clauses 102 & 133

92. The Committee recommends that the fine levels are raised from level 3 to level 5. It also called for an amendment to Clause 102 to make acts causing damage to a listed building a more serious offence by including an option of conviction on indictment to an unlimited fine. The Department provided the following amendment for Clause 133:

Clause 133, Page 85, Line 21
Leave out ‘3’ and insert ‘5’

93. While the Department agreed in principle to make the requested amendment to raise the level of fine in Clause 102 it did not produce it in time for the report. The Commitee agreed its own amendment to introduce the option of conviction on indictment.

Clause 148

94. The Committee recommends that the level 5 fine is raised to £7,500, as follows:

Clause 148, Page 96, Line 27
Leave out from ‘level’ to ‘scale,’ and insert £7,500’

Delegated powers of the Bill (202, 226, 229, 247) Clause 202

95. On the advice of the Examiner of Statutory Rules, the Committee recommends that the Department requests that OFMdFM brings forward an amendment so that powers regulating the procedure in appeals to the Planning Appeals Commission in Clause 202(5) will be made subject to negative resolution. They are currently subject to no procedure. The Committee agreed the following amendment accordingly:

Clause 202, Page 133, Line 32
At end insert—
‘(7A) Rules made under subsection (5) shall be subject to negative resolution.’

Clause 226

96. The Committee recommends that powers in Clause 226(3), which allow the Department to make rules regulating the procedure in respect of local inquiries, are subject to negative resolution; consistent with other similar orders in the Bill. They are currently subject to no procedure. The Committee asked the Department to consider such an amendment and was advised that the Minister would be asked to consider the request but a response was not forthcoming in time to be included in the Committee’s report.

Clause 229

97. The Committee recommends that reference to the Advocate General in Clause 229(1) and (2) should be amended to the Attorney General to ensure that this clause reflects the fully devolved position and does not require rules made under this clause to be made by the Lord Chancellor and laid before the Parliament at Westminster. The Department agreed to make the following amendment accordingly:

Clause 229, Page 147, Line 14
Leave out ‘Advocate General’ and insert ‘Attorney General’

Clause 229, Page 147, Line 18
Leave out ‘Advocate General’ and insert ‘Attorney General’

Clause 247

98. The Committee recommends that commencement orders in Part 3 of the Bill should not be made unless they have been approved by the Assembly. This is to ensure that planning control functions cannot be undertaken by councils before the Assembly is satisfied that the necessary governance measures are in place within councils before planning functions are devolved. The Committee agreed the following amendment accordingly:

Clause 247, page 160, line 16
At end insert—
( ) No order shall be made under subsection (1) in respect of Part 3 unless a draft of the order has been laid before, and approved by a resolution of, the Assembly.

Planning functions of the Department to encompass well-being (Clause 1)

99. The Committee recommends that the functions of the Department should include a commitment to well-being as follows:

Clause 1, page 1,
Leave out line 11 and insert—
(i) furthering sustainable development; and
(ii) promoting or improving social well-being

Sustainable Development (Clauses 1 & 5)

100. The Committee recommends that both the Department and local authorities should be required to further sustainable development in relation to delivering their planning functions as follows:

Clause 1, page 1,
Leave out line 11 and insert—
furthering sustainable development; and
promoting or improving social well-being

Clause 5, page 3, line 25
Leave out ‘contributing to the achievement of’ and insert ‘furthering’

Requirements on Department and councils with regard to observing policies and guidance issued by the Department for Regional Development (Clauses 1, 5 & 8)

101. The Committee recommends that the Department removes any risk of misinterpretation regarding the Department’s and councils’ obligations to policies and guidance issued by DRD in Clauses 1(3), 5(2) and 8(5) with the following amendments:

Clause 1, Page 1, Line 12
Leave out ‘have regard to’ and insert ‘take account of’

Clause 5, Page 3, Line 7
Leave out ‘have regard to’ and insert ‘take account of’

Timing of Departmental Statement of Community Involvement (Clauses 2)

102. The Committee recommends that a time limit is placed on the production and publication of the Department’s Statement of Community Involvement with the following Departmental amendment:

Clause 2, Page 2, Line 7
After ‘prepare’ insert ‘and publish’

Clause 2, Page 2, Line 11
At end insert—
(3) The Department must prepare and publish a statement in community involvement within the period of one year from the day appointed for the coming into operation of this section.’

Inclusion of Climate Change in Survey of District (Clause 3)

103. The Committee recommends that local authorities are required to take the implications of mitigating and adapting to climate change into consideration when conducting the survey of the district with the following Committee amendment:

Clause 3, page 2, line 27
At end insert—
‘( ) the potential impact of climate change

Local Development Plan (Clause 6)

104. The Committee recommends that there should be a statutory link between local development plans and community plans. However, it accepted that this would be best achieved through local government legislation still to be produced and welcomed the Minister’s written commitment that the Department will include a statutory link between community plans and local development plans in future local government legislation.

Independent Examination of plans (Clause 10)

105. The Committee recommends that the Department amends this clause to reinforce its position that the Planning Appeals Commission (PAC) will be the first choice for conducting independent examinations and only if the Commission is unable to do so in the appropriate timescale, the Department may appoint an alternative examiner, as follows:

Clause 10, Page 6, Line 10
At end insert—
‘(4A) The Department must not appoint a person under subsection (4)(b) unless, having regard to the timescale prepared by the council under section 7(1), the Department considers it expedient to do so.’

Neighbourhood notification (Clauses 41 & 42)

106. The Committee recommends that subordinate legislation should introduce mandatory site notices and neighbourhood notification.

New material to appeal (Clause 58)

107. The Committee recommends that the Department amends this clause to restrict any new material that can be presented at appeal to that which did not exist at the time the case went to appeal or could not have been provided due to exceptional circumstances as follows:

New clause

After clause 58 insert—

‘Matters which may be raised in an appeal under section 58

—(1) In an appeal under section 58, a party to the proceedings is not to raise any matter which was not before the council or, as the case may be, the Department at the time the decision appealed against was made unless that party can demonstrate—

(a) that the matter could not have been raised before that time, or

(b) that its not being raised before that time was a consequence of exceptional circumstances.

(2) Nothing in subsection (1) affects any requirement or entitlement to have regard to-

(a) the provisions of the local development plan

(b) any other material consideration.’

Better enforcement of developer contributions (Clause 75)

108. The Committee recommends that once planning functions have been devolved to local authorities, mechanisms to improve enforcement of developer contributions are considered.

Protection of listed buildings and trees (Clauses 84 & 125)

109. The Committee recommends that as penalties associated with offences against listed buildings and trees are increased, the Department looks at ways of ensuring compliance is enforced. This is not only important for trees covered by Tree Protection Orders and listed buildings but also for those that are likely to merit such protection but have yet to be listed/protected.

Revocation of listed building consent (Clause 97)

110. The Committee recommends that in relation to this clause guidance should be provided and that it should encourage sensitivity and common sense be used.

Inclusion of trees in local development plans (Clause 121)

111. The Committee recommends that guidance encourages councils to include trees in their local development plans.

Time limits (Clause 131)

112. The Committee recommends that the time limits in Clause 131 after which no enforcement action may be taken with respect to all planning control is amended to 5 years.

113. No Departmental amendment was available at the time of the writing of the report but an assurance was provided by the Department that:

‘….we are currently working with our lawyers to bring forward the further amendments within clause 131 and any necessary consequential amendments to change the time limits for both the 4 year and 10 year periods to 5 years.’

Duty of statutory consultees to respond (Clause 187 & 224)

114. The Committee recommends that councils should not be held responsible for compensation in the event of a planning decision being revoked on the basis of information from a statutory consultee, if that decision was made after the time limit agreed for a response from that statutory consultee had elapsed. It agreed the following Committee amendment accordingly:

New Clause

After Clause 187 insert

‘Compensation: decision taken by council where consultee fails to respond under section 224

At end insert—

‘187A. (1) Where a consultee fails to respond to a council consultation in accordance with section 224(3) and that council:

takes a decision under this Act in the absence of such a response; and

subsequently receives information which the council could reasonably expect to have been included in that response; and

decides to revoke or modify planning permission due to the information referred to in paragraph (b); and

compensation is payable by a council under section 178 in connection with the decision under paragraph (c);

the relevant department shall pay to the council the amount of compensation payable.

(2) For the purposes of subsection (1) “the relevant department" means the department (if any) to which the consultee is accountable.’’

Award of costs (Clause 202)

115. The Committee recommends that PAC is provided with powers to award costs for frivolous or vexatious appeals with the following amendment:

New clause

After clause 202 insert —

‘Power to award costs

202A.—(1) The appeals commission may make an order as to the costs of the parties to an appeal under any of the provisions of this Act mentioned in subsection (2) and as to the parties by whom the costs are to be paid.

(2) The provisions are—

(a) sections 58, 59, 95, 96, 114, 142, 158, 164 and 172;

(b) sections 95 and 96 (as applied by section 104(6));

(c) in Schedule 2, paragraph 6(11) and (12) and paragraph 11(1)

(d) in Schedule 3, paragraph 9.

(3) An order made under this section shall have effect as if it had been made by the High Court.

(4) Without prejudice to the generality of subsection (2), the Master (Taxing Office) shall have the same powers and duties in relation to an order made under this section as the Master has in relation to an order made by the High Court.

(5) Proceedings before the appeals commission shall, for the purposes of the Litigants in Person (Costs and Expenses) Act 1975 (c. 47), be regarded as proceedings to which section 1(1) of that Act applies.’

New clause

After clause 202 insert—

‘Orders as to costs: supplementary

202B.—(1) This section applies where—

(a) for the purpose of any proceedings under this Act—

(i) the appeals commission is required, before a decision is reached, to give any person an opportunity, or ask any person whether that person wishes, to appear before and be heard by it; and

(ii) arrangements are made for a hearing to be held;

(b) the hearing does not take place; and

(c) if it had taken place, the appeals commission would have had power to make an order under section 202A requiring any party to pay any costs of any other party.

(2) Where this section applies the power to make such an order may be exercised, in relation to costs incurred for the purposes of the hearing, as if the hearing had taken place.’

Grants to bodies providing assistance (Clause 221)

116. The Committee recommends that this clause should be strengthened by the inclusion of a requirement for bodies to further the understanding of planning policy proposals. Also, that it is amended to remove the requirement of an oversight role for DFP in the awarding of grants to bodies providing assistance as follows:

Clause 221, Page 142, Line 41
After ‘understanding’ insert ‘of planning policy proposals and’

Clause 221, Page 142, Line 41
After ‘aspect of’ insert ‘other’

Clause 221, Page 143, Line 8
Leave out from ‘, with’ to ‘Personnel,’ in line 9

Duration of tenure on Statutory Advisory Councils (Schedule 5)

117. The Committee recommends that the period of tenure for a member of Historic Buildings Council is looked at from the perspective of providing consistent advice to NEIA, during the current review of Statutory Advisory Councils.

Recommendations relating to the Bill in general

Governance Arrangements at Council Level (General)

118. The Committee recommends that planning functions are not devolved to local government until the necessary checks and balances are in place in councils that will ensure planning decisions are carried out, and seen to be carried out, with equality and fairness.

119. To ensure that the transfer of planning functions cannot happen inappropriately early, the Committee also recommends that an amendment is made to Clause 247 (see delegated powers) to prevent commencement of any orders in Part 3, devolving planning control to local authorities, of the Bill without the approval of the Assembly.

Resources

120. The Committee recommends that the Department provides strict guidance on the planning functions that will be covered by planning fees and those that are expected to be funded directly by councils. The Committee wants to see a full transfer of resources from the Department to councils for the planning functions being taken on by councils that are not covered by planning fees.

Capacity and Training

121. The Committee recommends that pilot projects are rolled out across and made available to all councils. Also, that training and capacity building programmes for councillors and councils staff are targeted (tailor-made), of suitable duration and adequately resourced.

Community Amenity Levy (General)

122. The Committee recommends that the Department explores the potential of the introduction of a Community Amenity Levy in the future.

Notices of Completion (General)

123. The Committee recommends that the decision not to introduce notices of completion is reconsidered when both planning and building control functions are operating within councils.

Introduction

124. The Planning Bill was referred to the Committee for the Environment for consideration in accordance with Standing Order 33(1) on completion of the Second Stage of the Bill on 14 December 2010.

125. The Minister of the Environment (the Minister) made the following statement under section 9 of the Northern Ireland Act 1998:

‘In my view the Planning Bill would be within the legislative competence of the Northern Ireland Assembly’.

126. The Bill provides the legislative basis for planning reforms and also gives effect to the Review of Public Administration (RPA) changes which will transfer the majority of functions and decision making responsibilities relating to local development planning, development management plus planning enforcement to district councils.

127. During the period covered by this Report, the Committee considered the Bill and related issues at meetings on 25 November 2010, 13 January 2011, 18 January 2011, 20 January 2011, 26 January 2011, 27 January 2011, 1 February 2011, 3 February 2011, 8 February 2011, 10 February 2011, 15 February 2011 and 22 February 2011. The relevant extract from the Minutes of Proceedings for these meetings are included at Appendix 1.

128. The Committee had before it the Planning Bill (NIA 7/10) and the Explanatory and Financial Memorandum that accompanied the Bill.

129. On referral of the Bill to the Committee after Second Stage, the Committee inserted advertisements on 17 December 2010 in the Belfast Telegraph, Belfast Telegraph North West edition, Irish News and News Letter seeking written evidence on the Bill.

130. A total of 61 organisations responded to the request for written evidence and copies of the submissions received by the Committee are included at Appendix 3.

131. The Committee was first briefed by officials about the consultation stages and policy development of the policy areas covered by the Bill on 25 November 2010. The Committee was also briefed by Assembly Research and Library Service and QUB, NILGA, The Northern Ireland Housing Executive, the Ministerial Advisory Group, Professor Greg Lloyd, the Planning Task Force, QPANI, Consumer Council, Community Places, Planning Appeals Commission, the Royal Town Planning Institute and the Royal Institute of Chartered Surveyors.

132. The Committee also held a stakeholder event involving over 25 organisations that had submitted written evidence on the Bill. The event focused on four key issues relating to the Bill that had been raised by a majority of respondents. The Department replied both orally and in writing to the issues discussed.

133. The Committee began its formal clause by clause scrutiny of the Bill on 8 February 2011 and concluded this on 10 February 2011.

Extension of Committee Stage of the Bill

134. On 7 February 2011, the Assembly agreed to extend the Committee Stage of the Bill to 1 March 2011.

Report on the Planning Bill

135. At its meeting on 22 February 2011 the Committee agreed its report on the Bill and agreed that it should be printed.

Consideration of the Bill by the Committee

136. The Bill consists of 248 Clauses divided into 15 Parts and 7 Schedules.

Departmental briefing on the draft Planning Bill, 25 November 2010

137. Departmental officials briefed members on 25 November 2010. Officials provided the Committee with an overview of the draft Bill.

138. The officials stated that the most of the Bill carries forward existing primary planning legislation and that one of the main aims of the Bill was to deliver a development plan system with more effective public engagement with the transfer of most planning powers to local councils.

139. The officials then answered members’ questions on enforcement, developers’ contributions, funding, third party rights of appeal, the role of councillors in planning applications, the need for a culture change in relation to planning, the role of the Department versus the role of councils, the reduction of time for appeals, simplified planning zones, the planning hierarchy, community involvement, pre application community consultation and development plans.

Assembly Research briefing on Planning Bill – Planning Functions and Local Development Plans, 13 January 2011

140. An Assembly Research official and a member of Queens University School of Planning briefed members on 13 January on Planning Functions and Local Development Plans.

141. The main areas of discussion were spatial planning, independent examination of local development plans, experiences of planning reform in other jurisdictions, joint development plans, community involvement and front loaded consultations, the importance of the Regional Development Strategy, training and guidance and the rollout of subordinate legislation, the definition of community, and independent examination of local development plans.

Departmental briefing on Planning Bill – Planning Functions and Local Development Plans, 13 January 2011

142. Departmental officials briefed the Committee and answered member’s questions on Planning Bill – Parts 1 and 2 – Planning Functions and Local Development Plans.

143. The main areas of discussions were Local Development Plans, the timeframe for the reform of local government, training and guidance, community infrastructure levy and the review of local development plans.

Assembly Research briefing on Planning Bill – Development Management, Planning Control and Enforcement, 18 January 2011

144. An Assembly Research official and a member of Queens University School of Planning briefed members on 18 January on Development Management, Planning Control and Enforcement.

145. The main areas of discussion were the role of the Department and call in powers, the onus on the applicant to undertake pre application consultation, the reduction in the timescale for appeals, simplified planning zones, sustainable development, performance agreements, third party appeals, award of costs, the hierarchy of planning, the role of the Planning Appeals Commission, independent examination, the role of councillors in the process, pre determination hearings and completion notices.

Departmental briefing on Planning Bill – Development Management, Planning Control and Enforcement, 18 January 2011

146. Departmental officials briefed the Committee and answered member’s questions on 18 January 2011 on the Planning Bill, Development Management, Planning Control and Enforcement

147. The main areas of discussions were independent examination, statements of community involvement, the rights of objectors, joint working between councils, statements of community involvement, the Regional Development Strategy responsibility for enforcement, tree protection orders and the need for guidance.

Assembly Research briefing on Planning Bill – Assessment of Councils’ Performance and all remaining provisions , 20 January 2011

148. An Assembly Research official and a member of Queens University School of Planning briefed the Committee and answered member’s questions 20 January 2011 on the Planning Bill - Development Management, Planning Control and Enforcement.

149. The main areas of discussions were the need for leadership, roles and responsibilities, potential barriers to effective delivery, resources, collaborations between councils, governance in local government, capacity building, the need for guidance, experiences in other jurisdictions, training and resources, performance management, the timetable for subordinate legislation.

Departmental briefing on Planning Bill – Assessment of Councils’ Performance and all remaining provisions, 20 January 2011

150. Departmental officials briefed the Committee and answered member’s questions on 18 January 2011 on the Planning Bill - Assessment of Councils’ Performance and all remaining provisions.

151. The main areas of discussions were resources, the quality of the built environment, sustainable development, the timeframe for detailed guidance, the Department’s oversight role, compensation, pilot schemes and best practice from other jurisdictions.

Planning Bill Oral Evidence Session – NILGA, 26 January 2011

152. NILGA officials briefed the Committee and answered members’ questions on their submission to the Committee’s call for evidence on the Planning Bill.

153. The main areas of discussion were training, resources, capacity building, communication with the Department, governance arrangements, pilot projects, the hierarchy of planning, enforcement, costs, liability, funding, third party right of appeal and community planning.

Planning Bill Oral Evidence Session – NI Housing Executive, 26 January 2011

154. NI Housing Executive officials briefed the Committee and answered members’ questions on their submission to the Committee’s call for evidence on the Planning Bill.

155. The main areas of discussion were the Regional Development Strategy, third party right of appeal, developer contributions, joint council working, the duration of planning permission, pre application discussions, performance agreements, land banking and zoning of land for social housing.

Planning Bill Oral Evidence Session – Planning Appeals Commission, 26 January 2011

156. Planning Appeals Commission officials briefed the Committee and answered members’ questions on their submission to the Committee’s call for evidence on the Planning Bill.

157. The main areas of discussion were independent examination, the Department’s call in power, submission notices, planning agreements and award of costs.

Planning Bill Oral Evidence Session – QPANI QPANI, 26 January 2011

158. Quarry Products Association NI (QPANI) officials briefed the Committee and answered members’ questions on their submission to the Committee’s call for evidence on the Planning Bill.

159. The main areas of discussion were sustainable development, mineral planning, definition of community, nature conservation, multiple fees, consultation period and aftercare of sites.

Planning Bill Oral Evidence Session – Royal Town Planning Institute, 26 January 2011

160. Royal Town Planning Institute (RTPI) officials briefed the Committee and answered members’ questions on their submission to the Committee’s call for evidence on the Planning Bill.

161. The main areas of discussion were the timescale for the Bill, resources, training, plan led systems, definition of community, the Regional Development Strategy, the Department’s role in the Bill, independent examination, pilot schemes, development management and area plans.

Planning Bill Oral Evidence Session – Royal Institute of Chartered Surveyors, 26 January 2011

162. Royal Institute of Chartered Surveyors officials briefed the Committee and answered members’ questions on their submission to the Committee’s call for evidence on the Planning Bill.

163. The main areas of discussion were training, resources, planning hierarchy, the Department’s role, community plans, capacity building, resources and appeals.

Planning Bill Oral Evidence Session – Planning Task Force, 27 January 2011

164. The Planning Task Force briefed the Committee and answered members’ questions on their submission to the Committee’s call for evidence on the Planning Bill.

165. The main areas of discussion were award of costs, community plans, third party rights of appeal, subordinate legislation, sustainable development, community infrastructure levy and the need for a climate change duty.

Planning Bill Oral Evidence Session – Consumer Council, 27 January 2011

166. A Consumer Council official briefed the Committee and answered members’ questions on their submission to the Committee’s call for evidence on the Planning Bill.

167. The main areas of discussion were the Regional Development Strategy, community consultation, the need for guidance, the performance of councils, and third party rights of appeal.

Planning Bill Oral Evidence Session – Community Places, 27 January 2011

168. Community Places representatives briefed the Committee and answered members’ questions on their submission to the Committee’s call for evidence on the Planning Bill.

169. The main areas of discussion were pre application community consultation, the need for guidance, statements of community involvement, the need for a statutory link between community planning and the local development plan, community investment levy, grant aid, independent examination, fees, developer contributions and third party rights of appeal.

Planning Bill Oral Evidence Session – Ministerial Advisory Group, 27 January 2011

170. An official from the Ministerial Advisory Group briefed the Committee and answered members’ questions on their submission to the Committee’s call for evidence on the Planning Bill.

171. The main areas of discussion were community involvement, community networks, pre application community consultation, local masterplanning, capacity building, statements of community involvement, business improvement districts, simplified planning zones and areas of townscape character.

Planning Bill Oral Evidence Session – Professor Greg Lloyd, 27 January 2011

172. Professor Greg Lloyd briefed the Committee and answered members’ questions on their submission to the Committee’s call for evidence on the Planning Bill.

173. The main areas of discussion were the Scottish planning model, the Regional Development Strategy, the Department’s role in the Bill, the role of developers, the need to invest and resource the planning system, community aspirations, joint working between departments, the hierarchy of planning, simplified planning zones, cost neutrality and the definition of community.

Planning Bill Stakeholder Event, 27 January 2011

174. The Committee held a Stakeholder Event on 27 January 2011 to take views on the following issues:

  • Independent examination of development plans and appeals
  • Community Infrastructure Fund/Developer Contributions
  • Pre-application community consultation
  • Third party right of appeal

Independent examination of development plans and appeals

175. Several stakeholders highlighted a need for clarity regarding the costs attached to the independent examination, and who will be responsible for covering these costs. The potential legal costs and legal liabilities are a major worry for councils, as most lack the financial backing required to pursue court cases.

176. The Department stated that during the formal clause by clause consideration of the Planning Bill that the issue of costs still needed to be resolved. A council will gain finances from planning fees and from resources being transferred to local government, however, the degree of budget has yet to be agreed. Currently the PAC is sponsored by the OFMdFM; however, the introduction of an independent examiner will require funding to be provided from the planning system.

177. Stakeholders also felt that public confidence and transparency in the independence of the appeals system was an essential element in the majority of submissions. Many believed that the independence of the PAC should be retained within the process and any appointment of an alternative independent examiner is a role for the local authority responsible for the development plan. One stakeholder felt that the Department should only appoint a person other than the PAC only under exceptional circumstances; however, the statute would require amending to incorporate this exceptional clause. The RSPB’s key concern was if an independent examiner makes recommendations to rectify a draft plan which they consider to be unsound, and the Department does not accept these recommendations, is there any chance of legal challenge.

178. The Department stated that independent examination of plans and the use of the PAC and independent examiners are not meant to cast doubt on the impartiality of independence of the Planning Appeals Commission. In the past when there was a huge backlog or a large number of plans received at once, the PAC had difficulties in dealing with them. The Department anticipate that similar difficulties will arise in the future and the Minister wants to be able to step in and ensure that, if there is a problem, there is another means of moving independent examinations forward. This approach would be used only as a last resort, and the Department will ensure that all proper procedures are in place so that those appointed are independent and appropriately qualified.

Community Infrastructure Fund/Developer Contributions

179. A number of stakeholders felt that the Bill remained silent on the issue of community infrastructure fund and that an opportunity had been missed to introduce some form of planning gain, which would enable future developments to yield a contribution to social housing/or community infrastructure.

180. The Department stated that the Community Infrastructure Levy introduced to England and Wales through the 2008 Planning Act empowers local authorities to introduce a statutory planning charge on development and to use the proceeds to fund infrastructure but that there is no equivalent in Northern Ireland.

181. One stakeholder stated that infrastructural needs will be one of the biggest challenges to face Northern Ireland over the next ten years. Other stakeholder varied as to how best to meet these infrastructural needs, however, a number called for a clear definition of what a developer is. One common theme was the pooling of a number of small developments in an area that stand alone would not require a contribution to infrastructure. Many agreed that absolute clarity on the financial model for determining the infrastructure and time that is associated with the payments was essential. Some stakholers felt that a regional levy should be set, resulting in consistency across the region. The RSPB requested the possibility of an exception for development for charities as in section 210 of the Planning Act 2008 in England and Wales.

182. The Department stated that PPS1 identifies that contributions from developers may be required where, for example, a proposed development needs the provision or improvement of infrastructure works or where a proposed development depends on carrying out works outside the site. These contributions can be secured through conditions attached to planning permission of through a negotiated legally binding agreement under Article 40 of the Planning (Northern Ireland) Order 1991.

183. Article 40 has been carried forward in the Planning Bill as clause 75. At 75(d) and (e) financial developer contributions under a planning agreement may be paid to the planning authority or to a Northern Ireland Department, whereas Article 40 provided only payment to DOE. This change would facilitate developer contributions being paid

Pre-application community consultation

184. Many of the stakeholders welcomed the introduction of pre-application community consultation; however, a number of respondents expressed the need for a clear definition of community. Although welcomed one stakeholder felt it important to include a duty on the person conducting the consultation to take the responses and to demonstrate that the responses have been listened to and included in the final documentation. Another stakeholder felt the need for safeguards against individuals or groups who do not necessarily have the wider communities backing or interest whilst another stakeholder felt it prudent to amend the Bill to ensure that pre-application consultation is not required for amendments to conditions or minor changes to applications.

185. NIE believed that pre-application community consultation is important, however, they felt that provisions are already enshrined in legislation and is a fundamental part of the planning process for major infrastructure projects, therefore it does not think that compulsory pre-application consultation is particularly helpful.

186. The Department stated that community involvement is a crucial feature of the new development system. Pre–application community consultation will be a mandatory requirement for all major and regionally significant proposals. Clause 28 introduces a requirement on applicants to prepare a pre application consultation report and additionally Clause 50 makes it possible for the Department or a Council to decline applications where the applicant has not complied with the necessary pre application consultation.

187. Under Clause 30 Council may hold pre-determination hearings. The aim is to make the planning system more inclusive and to ensure that the community has been consulted and their views are properly taken into account. The Department states that guidance on pre-application consultation will explain the role of the prospective applicant, and how active and meaningful consultation with communities can best be achieved.

Third party right of appeal

188. Almost all written responses commented on third party appeals. The majority, but not all, were in favour of their inclusion. Research provided to the Committee outlined the pros and cons of the inclusion of third party appeals and identified various models that could be adopted.

189. The Department’s reply stated that the Executive Committee has agreed that further consideration of third party appeals should be deferred until the extensive changes to the planning system under planning reform and local government reform have settled down and are working effectively.

190. The Reform of the Planning System in Northern Ireland: Your chance to influence change consultation paper agreed by the Executive Committee and published in July 2009 explained that the planning reform policy was to front load the planning system with opportunities for third party engagement and to extend its openness and transparency.

191. On the basis of evidence in an earlier Regulatory Impact Assessment, the paper explained that the introduction of third party appeals would result in:

  • costs to the public purse;
  • time lag in the final decisions on all applications to enable third parties time to appeal;
  • further time would be required to reach a final decision on those planning applications which are subject to third party appeal;
  • a need for additional staff for both planning authorities and the Planning Appeals Commission;
  • greater uncertainty in the outcome of the planning process.

As a consequence of all of these there would be a potentially adverse impact upon investment and the economy.

Key Issues

192. During its consideration of oral and written evidence from interested individuals and organisations the Committee identified a number of key issues on which further advice was sought from the Department, the Examiner of Statutory Rules, Assembly Research and Library Services and external organisations.

Clause-Specific Issues

Part 1 – Functions of Department of the Environment with respect to development of land

  • Planning functions of the Department to encompass well-being
  • Requirements on Department and councils with regard to observing policies and guidance issued by the Department for Regional Development
  • Sustainable Development
  • Timing of Departmental Statement of Community Involvement

Part 2 – Local Development Plans

  • Department’s oversight powers
  • Inclusion of Climate Change in Survey of District
  • Sustainable Development (see Part 1)
  • Terms of oversight of Council Statement of Community Involvement
  • Local Development Plan
  • Plan Strategy and Area Development Plans
  • Independent Examination of plans
  • Consultation with PAC
  • Withdrawal of development plan documents
  • Review of local development plans
  • Directing councils to prepare joint plans
  • Cost of annual monitoring reports
  • Regulations

Part 3 – Planning Control

  • Department’s oversight powers (see Part 2)
  • Meaning of development
  • Hierarchy of development
  • Definition of regionally significant
  • Pre-application community consultation
  • Pre-application consultation report
  • Predetermination hearings
  • Development rights for minerals
  • Simplified planning zones
  • Neighbourhood notification
  • Aftercare conditions on landfill sites
  • New material to appeal
  • Better enforcement of developer contributions

Part 4 – Additional Planning Control

  • Levels and scales of fines
  • Protection of listed buildings and trees
  • Revocation of listed building consent
  • Arbitration
  • Roles of planning authority and NIEA in relation to hazardous substances
  • Inclusion of trees in local development plans
  • Replacement of trees
  • Enforcement of tree protection orders
  • Obtaining expert information

Part 5 – Enforcement

  • Enforcement
  • Levels and scales of fines (see Part 4)
  • Delegated powers
  • Time limits
  • Stop notices
  • Consistency of enforcement
  • Clarification of urgent works
  • Obtaining expert information (see Part 4)

Part 6 – Compensation

  • Stop notices (see Part 5)
  • Compensation for revoking
  • Duty of statutory consultees to respond

Part 7 – Purchase of Estates

  • Interpretation of ‘reasonably’ (Clause 189)

Part 8 – Further Provisions as to Historic Buildings

  • Obtaining expert information (see Part 4)
  • The roles of different bodies related to listed buildings

Part 9 – The Planning Appeals Commission

  • Delegated powers (see Part 5)
  • Award of costs

Part 10 – Assessment of Council’s Performance or Decision Making

  • Consistency of enforcement (see Part 5)
  • Assessment of councils’ performance

Part 11 – Application of Act to Crown Land

  • Delegated powers (see Part 5)

Part 12 – Correction of Errors

  • Correction of errors

Part 13 – Financial Provisions

  • Fees and charges
  • Grants to bodies providing assistance

Part 14 – Miscellaneous and General Provision

  • Delegated powers (see Part 5)
  • Duty of statutory consultees to respond (see Part 6)
  • Involving public agencies
  • Compatibility of IT systems

Part 15 – Supplementary

  • Delegated powers (See Part 5)
  • Interpretation of reserved matters

Schedule 2 – Review of Old Mineral Planning Permission

  • Definition of dormant sites (Schedule 2)

Schedule 5- The Historic Buildings Council

  • Duration of tenure on Statutory Advisory Councils (Schedule 5)

Issues relating to the Bill in general

  • Governance of Planning Functions at Council Level
  • Resources
  • Capacity and Training
  • Land Use Strategy
  • Review Period
  • Third party right of appeal
  • Community Amenity Levy
  • Marine Spatial Planning
  • Notices of Completion
  • Chief Planner
  • Ensuring vulnerable and hard to reach groups can engage in the planning process
  • The legacy of area plans

Clause-Specific Issues

Part 1 – Functions of Department of the Environment with respect to Development of Land

193. This part maintains the general background authority for the Department to formulate and co-ordinate policy for securing the orderly and consistent development of land and the planning of that development. Issues raised in relation to Part 1 included:

  • Planning functions of the Department to encompass well-being
  • Requirements on Department and councils with regard to observing policies and guidance issued by the Department for Regional Development
  • Sustainable Development
  • Timing of Departmental Statement of Community Involvement

Planning functions of the Department to encompass well-being (Clause 1)

194. Many responses to the Committee’s call for evidence indicated concern that the function of the Department identified within the Bill was no different from its role under current planning arrangements. They suggested that this continued focus on “securing the orderly and consistent development of land" is no longer sufficient as it fails to reflect a shift to a plan-led model of planning.

195. Most respondents felt the function should be expanded to reflect the desired outcome of the new planning system. They felt this should go beyond governing the development of land to promoting sustainable development and tackling disadvantage and poverty. One organisation suggested that reference should be made to requirements of the Northern Ireland Act 1998 relating to equality, as defined in Sections 75(1) and 75(2). However the Department stressed that as every public body is under a statutory obligation to this Act there would be no benefit to its incorporation into this Bill.

196. Other organisations sought recognition of environmental limits, well-being and other social factors such as disadvantage and good relations. The Department insisted that duties to the environment were covered by its obligations to local, national and European legislation, that the social factors were already requirements for the public sector and that ‘well-being’ as a concept was still being consulted upon as part of the local government reform consultation.

197. Nonetheless, the Committee agreed with the concerns of stakeholders and sought amendments to improve the Department’s commitment to sustainable development (see section on Sustainable Development) and well-being as a way of recognising the full aspiration of the new approach to planning in Northern Ireland.

198. In the absence of a Departmental amendment to include ‘well-being’ as one of the objectives for which the Department must formulate and coordinate policy, the Committee agreed its own amendment to Clause 1 as follows:

Clause 1, page 1,
Leave out line 11 and insert—
furthering sustainable development; and
(ii) promoting or improving social well-being

Requirements on Department and councils with regard to observing policies and guidance issued by the Department for Regional Development (Clauses 1, 5 & 8)

199. Several respondents to the Committee’s call for evidence were concerned about the difference in wording between the Department’s obligations to policies and guidance issued by DRD in Clause 1(3) and those of councils in Clause 5(2) as follows:

‘….must have regard to-‘

compared with that of councils to the regional development strategy in Clause 8(5) :

‘….must take account of-‘

200. The Committee asked the Department to explain the discrepancy and was advised that whilst legislatively there was no practical difference in the wording it would remove any risk of misinterpretation by bringing forward the following amendments:

Clause 1, Page 1, Line 12
Leave out ‘have regard to’ and insert ‘take account of’

Clause 5, Page 3, Line 7
Leave out ‘have regard to’ and insert ‘take account of’

201. The Committee accepted these amendments.

Sustainable Development (Clauses 1 & 5)

202. Stakeholders were concerned about the lack of commitment contained in the Bill for both the functions of the Department (Clause 1) and those of local authorities (Clause 5).

203. Almost every organisation that responded called for the commitment to sustainable development at both planning function levels to be strengthened from ‘contributing to’ to ‘securing’. The Department insisted that sustainable development is not the sole duty of the Department for the Environment and nor can it be delivered solely by planning. For this reason, it argued, it would be inappropriate to require planning functions to secure sustainable development. The Department offered to amend the clause removing “to the achievement of" suggesting that this would strengthen the obligation. The Committee was not convinced and agreed its own amendments that would require the Department and councils to ‘further’ sustainable development as follows:

Clause 1, page 1,
Leave out line 11 and insert—
furthering sustainable development; and
promoting or improving social well-being

Clause 5, page 3, line 25
Leave out ‘contributing to the achievement of’ and insert ‘furthering’

Timing of Departmental Statement of Community Involvement (Clause 2)

204. Some organisations that submitted evidence to the Committee on this clause were concerned that the provision to produce a statement of community involvement had been in statute for several years but the Department had still to produce one. They suggested that a finite time period be allocated on the face of the Bill for its production. The Department responded that as the date of commencement of the Bill had yet to be decided by the Executive, exact dates should be avoided. The Committee accepted this argument but requested instead that a time limitation linked to commencement of the Bill is included.

205. The Committee agreed that the Department should be given a year to prepare and publish its statement of community involvement from the day appointed for the coming into operation of the relevant section as follows:

Clause 2, Page 2, Line 7
After ‘prepare’ insert ‘and publish’

Clause 2, Page 2, Line 11
At end insert-
(3) The Department must prepare and publish a statement of community involvement within the period of one year from the day appointed for the coming into operation of this section.’

Part 2 – Local Development Plans

206. This part provides for the preparation of local development plans by district councils for their district. Local development plans will comprise two documents; a Plan Strategy and a Local Policies Plan which must be prepared in accordance with the relevant timetable. Issues raised in relation to Part 2 included:

  • Department’s oversight powers
  • Inclusion of Climate Change in Survey of District
  • Sustainable Development (see Part 1)
  • Terms of oversight of Council Statement of Community Involvement
  • Local Development Plan
  • Plan Strategy and Area Development Plans
  • Independent Examination of plans
  • Consultation with PAC
  • Withdrawal of development plan documents
  • Review of local development plans
  • Directing councils to prepare joint plans
  • Cost of annual monitoring reports
  • Regulations

Department’s oversight powers (Clauses 11, 12, 15, 16, 26, 29, 69, 71 & 74 & 78)

207. The Department’s power of oversight and call-in throughout the Bill was an issue raised by many respondents to the Committee’s call for evidence on the Bill.

208. There were concerns that arrangements for calling in projects centrally had the potential to undermine the local authority and local democracy and concern was also expressed that there was a lack of precision in language to describe the circumstances in which Departmental intervention might happen.

209. In its response to these concerns the Department stated that it is imperative that policy and direction which are set at the centre, are adhered to and achieved through local development plans. Therefore it is necessary for central government to have a role in assessing local development plans and, if necessary, intervening in their production to achieve these objectives. The Department stressed that it would only direct a council to withdraw a document if it considers that it will not be appropriate to continue to process the document further.

210. The Department noted that it had a responsibility to ensure the orderly and consistent development of land for the whole of the region therefore it is necessary to have a role in assessing local development plans and powers of intervention. In response to a particular concern about vagueness of definition in relation to its powers, the Department suggested it would be impractical and overly cumbersome to insert on the face of the Bill every eventuality where intervention might be required but that it might intervene if:

  • It believes that preparation requirements are not being adhered to
  • It requires a change to be made to the plan for overriding reasons to secure the orderly and consistent use of land

211. The Department also indicated that the use of call-in will be clearly explained through guidance produced, on which it will consult. The intention is only to intervene, or call-in, in limited circumstances. A direction on call-in will set out the criteria whereby a council must notify the Department of a planning application which may have issues of regional significance. By exception the Department can call-in a planning application that sits out with these criteria but must give account of reasons for doing so based on the application being considered regionally significant. This is a similar approach to that which exists in other jurisdictions.

212. The Committee was content with the rationale provided and the balance of Departmental powers proposed.

Inclusion of Climate Change in Survey of District (Clause 3)

213. The Committee was keen to see the inclusion of a requirement for local authorities to take climate change into consideration when conducting the survey of the district and asked the Department to consider amending the clause. In its response the Department indicated that it did not believe it would be possible for councils to collate the necessary information from the sectors which produce emissions in their regions to enable them to meet such a requirement.

214. The Committee argued that councils should be required by the legislation to take the implications of mitigating and adapting to climate change into account in their survey. This should not necessarily require councils to collect and collate detailed local emission information but should necessitate the consideration of long term flooding predictions and observance of best practice in relation to reducing carbon emissions etc.

215. In the absence of a Departmental amendment the Committee agreed its own amendment as follows:

Clause 3, page 2, line 27
At end insert—
‘( ) the potential impact of climate change

Terms of oversight of Council Statement of Community Involvement (Clause 4)

216. Respondents to the Committee’s call for evidence suggested that any ambiguity in the meaning of this clause should be removed by replacing ‘may’ with ‘must’ in subsection 4(3) and ‘may’ with ‘will’ in subsections 4(4) and 4(6).

217. The Committee asked the Department to consider this but was advised that the existing wording allows the Department flexibility in how it deals with discrepancies it has with councils’ statements of community involvement. Tightening the wording as suggested would preclude any other option the Department may think preferable. The Committee accepted this rationale and agreed the Clause as drafted.

Local Development Plan (Clause 6)

218. Many respondents to the Committee’s call for evidence called for the Bill to make a statutory link between local development plans and community plans and the Committee asked the Department to consider this.

219. The Department replied that local development plans will be one way in which councils deliver their community plans however community plans do not yet exist in legislation. They informed the Committee that legal opinion suggests that any link should be established by using future local government legislation to amend this planning legislation. The Minister endorsed this position in a letter to the Committee (7 February 2011 Appendix 6) saying that:

“…an additional function of any new Local Development Plan will be to deliver the spatial aspects of the community planning. The Department will include a statutory link between community plans and local development plans. Legal opinion is that the appropriate way to take this forward is to use the local government legislation which will introduce community planning to make the necessary amendments to the Planning Bill."

220. The Committee was content to accept Clause 6 as drafted accordingly.

Plan Strategy and Area Development Plans (Clause 8)

221. The Committee wanted more information on this clause and was advised that subordinate legislation would form the form and content of each development plan document, including mapping requirements and justification of the policies. The Department also indicated subordinate legislation would cover publicity for the draft development plan documents and how and where they must be made available for inspection.

222. The Committee accepted the information but noted that there needed to be clear links with current area plans and new plan strategies as they were being developed. The Department indicated that current plans will remain in place until the new ones are produced.

Independent Examination of plans (Clause 10)

223. There was considerable concern among stakeholders about the proposals in this clause to enable the Department to appoint an independent examiner. Some felt that it was giving the Department inappropriate control. Some suggested that if the Planning Appeal Commission (PAC) did not have the capacity to meet requirements, it should be tasked to PAC to make the appointment of an Independent Examiner. Others wanted reassurance that the process of appointing an Independent Examiner would be of the same standard as that for appointing PAC.

224. The Department stressed that PAC will be the first choice for conducting independent examinations however if they are unable to do so in the appropriate timescale, this clause would give sufficient flexibility to appoint an alternative examiner. The examiner would be appropriately qualified and impartial. However, in order to reinforce the position that an Independent Examiner would only be used in exceptional circumstances when there are unacceptable delays caused by the increasing workload of PAC, the Department agreed to amend the clause as follows and this was welcomed by the Committee:

Clause 10, Page 6, Line 10
At end insert—
‘(4A) The Department must not appoint a person under subsection (4)(b) unless, having regard to the timescale prepared by the council under section 7(1), the Department considers it expedient to do so.’

225. The Committee was also concerned about the allocation of costs for the process. Members were concerned that whilst the costs of PAC carrying out its duties are covered by OFMdFM, there was no indication of how an independent examiner would be paid if used. The Department later confirmed that it would pay for independent examinations which are conducted by an independent person it appoints.

Consultation with PAC (Clauses 10 & 16)

226. Aware that PAC in particular had concerns about the Department’s power to appoint independent examiners, the Committee asked the Department to indicate how it would ensure that PAC were supportive of the approach being proposed in Clauses 10 and 16.

227. In addition to its response for Clause 10, the Department stressed that it sees it as critical that there is flexibility to appoint external independent examiners regardless of the level of resources which the PAC may have, as there may be circumstances where a large number of plans are submitted for independent examination at the same time. This approach would allow independent examinations to take place expediently, thus reducing delays to this stage of the development plan process. The Department indicated it would produce clear guidance on the use of other independent examiners which will include details on a process of their appointment.

228. The Committee was content with this explanation.

Withdrawal of development plan documents (Clause 11)

229. There was a suggestion from stakeholders that details of the withdrawal of development plan documents should be on the face of the Bill rather than in subordinate legislation. However, the Department argued that due to the technical and administrative nature of the processes, it is more appropriate that these details are in regulations so that they can be easily amended as part of the evolution of the new planning system.

230. In response to concerns about the Department’s power to direct a council to withdraw its development plan, the Department stressed that it would only direct the council to withdraw the document if it considers that it would not be appropriate to continue to process the document any further, for example if it clearly does not meet preparation requirements or tests of soundness.

231. The Committee accepted this response.

Review of local development plans (Clause 13)

232. Stakeholders had several concerns about the proposals for reviewing local development plans. Several wanted greater detail on the format of reviews, while others wanted clarification of the intervals at which reviews would take place. There was also a suggestion that councils should have responsibility for triggering the review process.

233. The Department stated that regulations will require councils to carry out a review of their plan at least every 5 years however they will be able to trigger a review process at any time. Subordinate legislation will also set out the manner by which a review will be dealt with. Councils will also be required to undertake an Annual Monitoring Report which may identify the need for a review at an earlier stage.

234. The Department considers that a 15 year time span is appropriate to allow for longer term planning of an area and this information will be set out in guidance. However the annual monitoring and the review provisions of the Bill will identify any changes to the plan that are required and a revision to the plan can be made accordingly allowing for any adjustments to be made to the plan in a timely manner where deemed appropriate.

235. The Committee was content with this explanation.

Directing councils to prepare joint plans (Clause 18)

236. While most stakeholders were content with this clause, there was concern that the Bill does not make adequate provision for linear infrastructure, such as electricity cables, that might transcend several council boundaries.

237. The Department replied that the Bill provides the power for the Department to prepare a plan on a specific issue for the whole of the region as appropriate or alternatively the Department for Regional Development has powers to deal with Regional Planning through the Regional Development Strategy.

238. The Committee was content with this response.

Cost of annual monitoring reports (Clause 21)

239. Councils in particular were concerned about the additional costs and workload that would be incurred by the requirement to produce an annual report to the Department. Some also suggested that it would have limited benefits. Other stakeholders were supportive of the approach and suggested that there should be a requirement for them to include indicators of environmental impacts, shared space, accessibility, community relations, etc..

240. The Department replied that it sees the monitoring and review of plans as an essential element in establishing how plans are being implemented and whether any changes are required to keep them up to date and relevant. It indicated that the form and content of annual monitoring will be in subordinate legislation which will be the subject of public consultation. Further information will be set out in guidance and monitoring will be focused on the extent to which the objectives set out in the local development plan are being achieved.

241. The Committee accepted this response.

Regulations (Clause 22)

242. Most respondents to the Committee’s call for evidence called for a commitment from the Department to producing the regulations required to implement the Bill and a timeframe for their production.

243. The Committee was provided with a memorandum of delegated powers that set out the regulations provided for in the Bill and the Department provided a summary of the extensive programme of secondary legislation and an outline timetable.

244. The Committee was content with the information provided.

Part 3 – Planning Control

245. This part re-enacts key provisions from the Planning (Northern Ireland) Order 1991 which define development and set the framework for the processing and determination of applications for planning permission. A new development management approach is introduced which includes assigning different categories of development to a new hierarchy which will determine the method by which applications will be processed. Issues raised in relation to Part 3 included:

  • Department’s oversight powers (see Part 2)
  • Meaning of development
  • Hierarchy of development
  • Definition of regionally significant
  • Pre-application community consultation
  • Pre-application consultation report
  • Predetermination hearings
  • Development rights for minerals
  • Simplified planning zones
  • Neighbourhood notification
  • Aftercare conditions on landfill sites
  • New material to appeal
  • Better enforcement of developer contributions
  • Time limits (see Part 5)

Meaning of development (Clause 23)

246. A few respondents had concerns about the proposals for applications for demolition and suggested that they should only be required within conservation areas or where it affected listed buildings. The Department confirmed that this clause carries over the current provisions from the 1991 Planning Order and that currently consent for demolition is only required in these circumstances.

247. Having clarified that this applied to all listed buildings, not just those in conservation areas, the Committee was content with this clause.

Hierarchy of development (Clause 25)

248. Several stakeholders felt that it would be helpful if broad thresholds between major and local applications were given in the Bill and that it would be helpful if the Bill could outline circumstances in which the Department may reclassify a development proposal. A definition of ‘class’ was also sought.

249. In addition to this, one submission felt there should be 3 classes of development, not two as proposed, and that all applications by a district council should be handled centrally, by the Planning Service.

250. The Department’s response stated that thresholds for regionally significant and major development will be provided in subordinate legislation, and this will be subject to consultation. The Department will be able to class a local development as ‘major’ where a request is made by the Council to do so. The examples of where this could apply will be set out in guidance. The Department also agreed to consider including in its guidance, the suggestion from a respondent that the decision on whether or not a development was major, could be based on whether or not it was in accordance with the local development plan.

251. In terms of the number of classes of development, the Department’s reply stated that for the purposes of the Bill the Major development category also includes Regionally Significant development which will be dealt with by the Department. In working practice however, and as provided for under both subordinate legislation and guidance, there will in effect be 3 categories of development, with Regionally Significant development forming the top tier of applications. Minor applications would fall under the local development category where it does not meet the requirements of permitted development and permitted development, as provided for under the new Planning (General Permitted Development) Order, will set out thresholds for development types where planning permission will not be required.

252. The Department considers that a requirement for local applications to be subject to pre-application consultation would be unnecessarily onerous on the applicant and cause delays in issuing smaller scale planning applications. As in other jurisdictions this will include councils’ own applications though arrangements are put in place which will allow regulations to set out the detailed procedure in such cases. These can provide for certain applications to be decided by the Department.

253. One submission called for the Department to be required to decide within a fixed time period what constitutes a major application in order to reduce potential for delays at this stage of the planning process. The Department indicated that it had not introduced a timescale at this stage owing to the difficulty in determining what is deemed ‘sufficient information’. Timeliness by the Department in its decision making will be encouraged through the use of a Performance Agreement, which will be a non-statutory mechanism but one which the Department will promote when dealing with regionally significant applications. Guidance will be produced in relation to Performance Agreements and how they can be used effectively to provide clarity on pre and post application stages to reduce delays. The Department said it will also promote the use of pre-application discussions in relation to regionally significant and major developments.

254. The Committee welcomed the detailed explanations provided and were content with the clause as drafted.

Definition of regionally significant (Clause 26)

255. Respondents sought confirmation that the Department would clearly define what constitutes regionally significant and major developments. Some suggested that the decisions on what determines regionally significant should be given to PAC as an independent and impartial body. However, the Department insisted that this is a key role of the Department and accountability must rest with it in fulfilling its function to secure the orderly and consistent development of land. It noted that this role will be enhanced through new procedures in the Bill

256. One respondent was keen to see details on the criteria that will be used to determine whether or not an inquiry is held and was keen to see the inclusion of impact on Natura 2000 sites. The Department responded that the definition of ‘regionally significant’ as proposed through draft subordinate legislation does not refer to environmental designations but rather the types of development such as housing or retailing. It pointed out that Natura 2000 sites are protected under the Habitats Directive and that there is a legal process for considering any development proposal affecting Natura 2000 sites – the Habitats Regulations Assessment – which affords the highest level of protection for nature conservation sites regardless of the planning authority responsible for the decision.

257. The Committee was content with this explanation.

Pre-application community consultation (Clause 27)

258. Most respondents to the Committee welcomed proposals for pre-application consultation by developers however some felt the proposals in the Bill (Clauses 26 - 28) fell short of the Department’s commitments following consultation to make pre-consultation a compulsory requirement and for a report of the consultation to be made publicly available. There were also several suggestions that the Bill should incorporate measures currently being brought forward in a Localism Bill in England that prescribe the approach that should be adopted. There was also a concern that with no third party right of appeal there are still no consequences if pre-application consultation is not done properly.

259. The Department suggested that pre-application engagement with statutory consultees is part of creating a more proactive and positive development management culture. Effective front-loading of the application process, with a strong emphasis on pre-application engagement can lead to proposals being shaped prior to issues arising, shorter delays in processing times and higher quality planning applications. It is intended that planning policy through a revised PPS1 will set out details surrounding pre-application engagement with consultees particularly where a Performance Agreement has been entered into on major and regionally significant development applications. The Department noted that requirements for pre-application discussion will be set out in subordinate legislation and the planning authority must decline to determine an application if the statutory requirements have not been met.

260. Stakeholders also asked for a definition of ‘community’ with regards to this clause as there was concern that ‘community’ might be limited to the immediate area where a proposed development is located without taking much wider impacts into consideration. The Department indicated that Clause 4 refers to ‘community’ as ‘persons who appear to the council to have an interest in matters relating to development in its district’. This is intentionally wider that the people who live in the district so that it can, for example, include people who work or invest there or who visit it to use services.

261. The Department also explained that as part of the requirements of statutory pre-application consultation, the planning authority (either the Department or councils) have a role in advising the prospective applicant on whom to consult and the applicant must show how they have carried out this consultation and how they have taken on board comments to amend proposals. Consultation requirements will vary depending on the nature and scale of the application and the area in which it is to be located. A range of consultation methods may be considered more appropriate for some developments rather than others therefore the onus will lie with the prospective applicant to work in conjunction with the planning authority in providing the most acceptable arrangements.

262. In response to a request for clarification on whether or not pre-application consultation would be required for amendments to conditions, the Department agreed to seek clarification and suggested it might be possible for subordinate legislation to indicate certain types of application for which pre-application consultation will not be required.

263. The Committee accepted these responses and agreed the clause as drafted.

Pre-application consultation report (Clause 28)

264. Many respondents to the Committee’s call for evidence wanted an opportunity to be provided for the public and community groups to comment on the report. The Department stated that the consultation report would be made available to the public and published on the internet.

265. The Department noted that this clause introduces a requirement on applicants to prepare a pre-application consultation report and this will need to demonstrate how the developer approached pre-application consultation and what they have done to amend their proposals in light of the consultation. Also, that comments on the report made by interested parties will be considered a material consideration in the planning authority’s determination of whether to decline to determine the application.

266. The Committee was content with the responses provided by the Department.

Predetermination hearings (Clause 30)

267. Several respondents wanted to see minimum criteria provided in association with this clause and the Department responded that this would be provided by subordinate legislation.

268. The Department stressed that this clause gives councils the power to hold pre-determination hearings which aim to make the planning system more inclusive, allowing the views of applicants and those who have made representations to be heard before a planning decision is made.

269. The Committee was content with the response.

Development rights for minerals (Clause 32)

270. In relation to this clause, one respondent suggested that this clause should include permitted development rights for minerals. The Department responded that it was looking at this issue but needs to give the potential amenity impacts of permitted development rights more consideration.

271. The Committee was content with this response.

Simplified Planning Zones (Clauses 33 – 38)

272. There were mixed views, both in the Committee and in stakeholder responses, in relation to the need for simplified planning zones. Several stakeholders welcomed provisions relating to simplified planning and enterprise zones and one stated that it would be keen that the non-port lands within the Harbour Estate be considered for such provisions.

273. However, other respondents to the Committee’s call for evidence had concerns about the zones. Some felt it was important to exclude conservation areas and areas of natural importance from simplified planning zones, some that the justification for these anachronistic zones no longer exist and that simplified planning zones should be remodelled as Renewable Energy Zones and others called for more information relating to the proposed arrangements for ‘zoning’, in particular land zoned for sport and physical recreation.

274. One submission was totally opposed to the idea of simplified planning zones stating that it did not understand why these had been included in the draft legislation as they had not, in the past, resulted in any significant benefit to Northern Ireland. Another submission welcomed the principle of Simplified Planning Zones but strongly objected to the inclusion of legislation regarding Simplified Planning Zones in the Planning Bill as it had not been consulted on this matter and as such had not been given adequate opportunity to consider this important planning function.

275. In its reply to these views the Department stated that the Bill transfers powers to make and alter simplified planning zones from the Department to councils. Councils will therefore be responsible for the designation of any simplified planning zones in the future. The power to create an enterprise zone will be retained by the Department, although this remains subject to the approval of DFP and touches on the responsibilities of DETI. The simplified planning zone powers in the 1991 Planning Order have never been exercised by the Department and it is therefore not possible to ascertain whether or not they are of benefit.

276. The Committee sought additional information from the Department and Assembly Research to assist in their consideration on the inclusion of provisions to establish simplified planning zones. They asked for confirmation that they would be time-limited and require thresholds and a business case. The Department confirmed that the Bill provides for these and the zones should be seen as another tool for councils to use rather than a requirement that they must put in place. Some members remained unconvinced of the value such zones might offer Northern Ireland in a plan-led system but others saw them as a potentially useful tool for councils to enhance tourism and renewable energy as well as more traditionally, jobs and growth. The Committee concluded that the provisions for simplified planning zones should remain in the Bill.

Neighbourhood notification (Clauses 41 & 42)

277. Concerns were raised by the Committee under these clauses in relation to the need for proper and effective notification of planning proposals.

278. The Department informed the Committee that the Minister has agreed to bring forward subordinate legislation in relation to site notices and neighbourhood notification. The Committee welcomed this response.

Aftercare conditions on landfill sites (Clause 53)

279. In response to suggestions from stakeholders, the Committee asked the Department to consider expanding the scope of this clause to include a power to impose aftercare conditions on landfill sites.

280. The Department responded that the management of landfill sites is currently dealt with under the Landfill Regulations (Northern Ireland) 2003 and the Pollution Prevention and Control and the Waste Management Licensing regimes, in the context of relevant EU and other requirements. The NIEA Interim Guidance on Landfill Closure, Capping and Restoration (2007) identifies the main after-use options for landfills. It maintained therefore, that as landfill is comprehensively dealt with elsewhere, there is no need to include it in the Planning Bill.

281. The Committee accepted this rationale and agreed Clause 53 as drafted.

New material to appeal (Clause 58)

282. The Committee asked the Department to consider an amendment that would restrict the introduction of new material at planning appeals. However, on reflection recognised that there may be circumstances under which such information might be allowed.

283. The Department suggested the following amendment:

New clause

After clause 58 insert—

‘Matters which may be raised in an appeal under section 58

-(1) In an appeal under section 58, a party to the proceedings is not to raise any matter which was not before the council or, as the case may be, the Department at the time the decision appealed against was made unless that party can demonstrate-

(a) that the matter could not have been raised before that time, or

(b) that its not being raised before that time was a consequence of exceptional circumstances.

(2) Nothing in subsection (1) affects any requirement or entitlement to have regard to—

(a) the provisions of the local development plan

(b) any other material consideration.’

284. The Committee felt the amendment provided just the right balance of flexibility for what could be considered permissible information to be provided at appeal and welcomed it accordingly.

Better enforcement of developer contributions (Clause 75)

285. The main issue raised by stakeholders under Clause 75 was that of the need for a Community Infrastructure Levy in addition to developer contributions. This is discussed in detail under ‘Community Amenity Levy’ in Issues relating to the Bill in general.

286. However relating to developer contributions specifically, the Committee called for better enforcement of these and asked the Department to consider how this might be achieved. The Department suggested that, similarly to notices of completion, this is an issue that could be considered to become part of the responsibilities of Building Control once the two functions were located within councils.

Part 4 – Additional Planning Control

287. This part covers listed buildings and conservation areas, hazardous substances, trees, review of mineral permissions and advertisement controls. Most of these functions are re-enacted from the 1991 planning Order and transferred to councils but some, more specialist functions, are retained by the Department. Issues raised in relation to Part 4 included:

  • Levels and scales of fines
  • Protection of listed buildings and trees
  • Revocation of listed building consent
  • Arbitration
  • Roles of planning authority and NIEA in relation to hazardous substances
  • Inclusion of trees in local development plans
  • Replacement of trees
  • Enforcement of tree protection orders
  • Obtaining expert information

Levels and scales of fines (Clauses 84, 102, 116, 125, 136, 133, 146, 148, 149)

288. Several respondents to the Committee’s call for evidence stated that the fines included in the Bill, whether listed as scales or levels, were no longer sufficient deterrents to prevent unauthorised demolition of listed buildings or trees.

289. The Committee was mindful of this, and the fact that the fine amounts had been determined 20 years ago in The Planning (Northern Ireland) Order 1991, when scrutinising the Bill.

290. At Clause 84 the Committee considered the level of fine identified for demolition of a listed building or failing to comply with conditions of a listed building consent, and agreed that £30,000 was no longer an appropriate level of fine to act as a deterrent. The Department stated that this fine exceeds the equivalent in GB which is £20,000 and that Clause 84(6)(b) provides for an unlimited fine or a prison sentence. The Department also considers £30,000 to be a significant level of potential fine, although it is for the Courts to decide the actual fines.

291. Members recognised that the option of conviction on indictment allowed for an unlimited fine for very serious breaches but also felt that the fine on the face of the Bill gives the signal of how seriously a breach should be taken and will influence a court decision. It also felt that the current level was no longer in keeping with the value of development and it was suggested anecdotally that some developers treat such fines as part of the process and factor them in to their costs.

292. The Committee therefore agreed that the following amendment should be made and welcomed the Minister’s subsequent agreement to bring it forward at consideration stage:

Clause 84, Page 53, Line 37
Leave out ‘£30,000’ and insert ‘£100,000’

293. For the same reasons in relation to protecting listed buildings, the Committee sought the fine level in Clause 102 to be raised from level 3 to level 5. It also called for this clause to make acts causing damage to a listed building a more serious offence by including an option of conviction on indictment to an unlimited fine.

294. The Department agreed to these amendments but did not produce them in time for the report.

295. The Committee also considered the level of fine associated with contravention of hazardous substances control in Clause 116. Before agreeing on whether or not the levels should be raised, members sought details of the types of substances the clause refers to, how often such fines had been used to date and where money collected as fines goes to.

296. The Department provided a list of the hazardous substances covered by the Clause (Appendix 6) and advised that only 1 warning letter had ever been issued in recent years because it aims to avoid breaches by conducting regular meetings to discuss upcoming or potential cases in advance. It also noted that money taken in fines goes to the central fund, i.e. Treasury.

297. The Committee accepted the information and agreed it would be appropriate for the fine to be raised from £30,000 to £100,000 to act as a deterrent and welcomed the Department’s agreement to raise the fine with the following amendment:

Clause 116, Page 75, Line 31
Leave out ‘£30,000’ and insert ‘£100,000’

298. As with listed buildings, the Committee wanted penalties for contravention of tree preservation orders in Clause 125 to carry a heavier fine and welcomed the Department’s agreement to bring forward the following amendment at consideration stage of the Bill:

Clause 125, Page 80, Line 26
Leave out ‘£30,000’ and insert ‘£100,000’

299. The Committee was advised that the Bill contained three other clauses that included £30,000 fines for breach of conditions; Clauses 136 and 149 for contravention of stop notices and Clause 146 for non-compliance with an enforcement notice. The Committee had already indicated its content with the three clauses as drafted but agreed it should accept the following Departmental amendments when tabled at consideration stage:

Clause 136, Page 87, Line 18
Leave out ‘£30,000’ and insert ‘£100,000’

Clause 146, Page 95, Line 15
Leave out ‘£30,000’ and insert ‘£100,000’

Clause 149, Page 98, Line 6
Leave out ‘£30,000’ and insert ‘£100,000’

300. The Committee also considered the penalty in Clause 133 for non-compliance with a planning contravention notice and having ascertained that a level 3 fine is currently £1,000 called for it to be raised as members felt this no longer reflected the seriousness of such a breach. The Committee welcomed the Department’s agreement to raise it to level 5, £5,000, as follows with the following amendment:

Clause 133, Page 85, Line 21
Leave out ‘3’ and insert ‘5’

301. Similarly in Clause 148, members felt that a £5,000 (level 5) fine for contravening an enforcement notice no longer reflected current economic conditions and called for it to be raised. The Committee accepted the Department’s agreement to amend the clause as follows:

Clause 148, Page 96, Line 27
Leave out from ‘level’ to ‘scale,’ and insert £7,500’

Protection of listed buildings and trees (Clauses 84 & 125)

302. As a result of seeking higher fines in association with offences in these clauses (see Levels and Scales of fines), the Committee recognised that there would be an increased risk to protected buildings and trees, and to those likely to merit such protection, and urged the Department to ensure that enforcement of compliance was maximised. There was a suggestion that once powers were devolved to councils this might be a function that could be delivered by Building Control.

Revocation of listed building consent (Clause 97)

303. Some members expressed concern that current listing practices can hinder growth and development and the image of an area and suggested that more consideration should be given to supporting listed building owners. The Committee agreed it should recommend that guidance on applying PPS6 should encourage sensitivity and balance.

Arbitration (Clauses 97 & 103)

304. The Committee asked the Department to comment on the need for and provision of arbitration in relation to decisions to revoke or modify listed building consent or designate a conservation area.

305. The Department replied that such powers were provided solely as a safeguard and will only be used in rare, exceptional circumstances if a council fails to fulfil its duties. The Department is required to give notice or consult with councils before carrying out these actions. So in practice, the Department maintained, it would expect to be in close contact and discussion with a council before it would exercise such powers and given that such cases will be very few, it does not consider it necessary to establish formal arbitration arrangements.

306. The Committee was content with this explanation.

Roles of planning authority and NIEA in relation to hazardous substances (Clause 107)

307. The Committee sought more information on the way in which this clause would be implemented and the respective roles of the planning authority and NIEA with respect to its implementation.

308. The Department clarified that hazardous substances must be disposed of in ways which render them as safe as possible and minimise their environmental impact according to NIEA regulations. However, in relation to this clause, the planning authority is responsible for its implementation.

309. The Committee was content with this response.

Inclusion of trees in local development plans (Clause 121)

310. The Committee asked the Department to comment on the approach proposed for dealing with areas of trees and dead and dying trees.

311. The Department responded that this clause was transferring existing powers to councils with no radical changes. It confirmed that the clause provides that Tree Protection Orders (TPOs) will include areas of trees and does not see any requirement to expand TPOs to include areas of trees as entire woodlands can already be encompassed within TPOs and blanket TPOs are automatically established within conservation areas. The Department also indicated it would not change its approach to dead or dying trees but it will issue guidance on good practice.

312. The Committee commented that many historical or important trees remain unprotected and agreed to recommend that councils are encouraged to include trees in their development plans.

Replacement of trees (Clause 124)

313. The Committee sought confirmation that sufficient flexibility would be provided with this clause to allow a tree to be replaced near, but not necessarily in, the place the previous tree stood where there had been a disease problem.

314. The Department confirmed that this was the case and the Committee accepted the clause as drafted.

Enforcement of tree protection orders (Clause 125)

315. In addition to recommending the fine in this clause be raised (see levels and scales on fines) the Committee suggested that the two offences contained in this clause be codified into one offence. The Department accepted it might be possible to merge the two offences, however, it refused to do so, on the grounds that it would reduce the flexibility to deal with the potentially wide range of contraventions under the clause. It also argued that as it was it provided a balanced approach for both landowner and council.

316. The Committee accepted this response.

Obtaining expert information (Clauses 128, 160 & 197)

317. The Committee was concerned about the availability and accessibility of expert information to councils once planning functions had been devolved. Members were concerned that where expertise was not required on a frequent basis there may be a considerable cost associated with obtaining it.

318. In its response the Department recognised that there are a number of specialised areas within the planning system (such as the review of mineral planning permissions) which councils will wish to consider how best to deliver. It suggested that one model might be a shared delivery model, or if certain types of development were clustered, a lead council could deliver the function.

319. The Committee also asked for confirmation that the possibility of expertise provided from the centre (e.g. NIEA) being charged as a cost to councils could be ruled out.

320. The Department’s response indicated that statutory bodies will be designated through subordinate legislation as statutory consultees to the planning system and a list is being compiled with a view to public consultation. So far, there has been no discussion of fees with any of these bodies.

321. The Committee accepted the response.

Part 5 – Enforcement

322. This part deals with enforcement powers which may be invoked where development has been carried out without the requisite grant of planning permission or consent. Enforcement powers are re-enacted and transferred to councils which will be responsible for all breaches of planning control. Issues raised in relation to Part 5 included:

  • Enforcement
  • Levels and scales of fines (see Part 4)
  • Delegated powers
  • Time limits
  • Stop notices
  • Consistency of enforcement
  • Clarification of urgent works
  • Obtaining expert information (see Part 4)

Enforcement (Clauses 130 & 152-154]

323. The Committee had concerns on enforcement and requested details from the Department on enforcement practices to date including the number of staff transferred from Planning Service to the enforcement section and a response on how the issue of legal costs influences decisions on enforcement action.

324. The Department’s response stated that this clause defines a breach of planning control and sets out that enforcement action constitutes the issuing of an enforcement notice or breach of condition notice. The main enforcement powers available to the Department are contained in Part VI of the Planning (Northern Ireland) Order 1991. This primary legislation has been amended by the Planning (Amendment) (Northern Ireland) Order 2003, which introduced a number of measures including new and revised enforcement powers and penalties. Further amendments to primary legislation are contained in the Planning Reform (Northern Ireland) Order 2006.

325. Under the provisions of the Order, the Department has a general discretion to take enforcement action when it regards it as expedient to do so, having regard to the provision of the development plan and any other material considerations. The Department’s general policy approach to dealing with breaches of planning control is contained in Planning Policy Statement (PPS) 9 ‘The Enforcement of Planning Control’.

326. The Committee asked about the expectation on councils to carry out enforcement activities; was it a statutory function, for example and what were the resource implications. The Department replied that enforcement will be demand-led and that it is impossible to say how much resource will be required as some councils may put more emphasis on enforcement than others. The Committee sought more information on current enforcement activity and costs, in particular an indication of the nature of breaches and what the proportion that had been deemed not expedient to progress. The Department indicated that their key objectives for planning enforcement are:

  • To bring unauthorised activity under control
  • To remedy the undesirable effects of unauthorised development
  • To take legal action where necessary

327. It stressed that all complaints are looked into even though quite a high proportion are found to be non-breaches. The number of cases deemed ‘not expedient’ to progress was relatively low; in the region of 20%.

328. Members accepted the information provided but noted that councils were still very much in the dark on this issue and were deeply concerned about the future costs of this function. Resources are covered in more detail in the general issues section of the report.

Delegated powers of the Bill (Clauses 152, 153, 202, 208, 226, 229, 244, & 247)

329. The Committee was provided with a Delegated Powers Memorandum by the Department and sought advice from the Examiner of Statutory Rules in relation to the delegated powers within the Bill.

330. The Examiner informed the Committee that most powers to make subordinate legislation within the Bill are in the form of orders (mostly development orders) and regulations subject to negative resolution and that this was an appropriate level of scrutiny.

331. The Examiner also pointed out that Clauses 152(9) and 153(9) in Part 5 contain powers to set fixed penalty payments in regulations subject to draft affirmative procedure and this too seems an appropriate level of scrutiny. The Committee agreed on this issue having recently called for the highest level of scrutiny to be applied to similar provisions in other legislation it had recently considered.

332. The Examiner made no comment on the power contained within Clause 208(1) in Part 11 of the Bill to alter the definition of “Crown Estate" by order which is subject to affirmative resolution.

333. Clause 244, in Part 14, contains a power to make further orders by order and that where that involves modification, amendment or repeal of a statutory provision, the power is subject to draft affirmative procedure. For all other instances it will be subject to negative resolution. The Examiner approved of the balance that this provides.

334. The Examiner also noted that Clause 247 in Part 15 contains powers to make commencement orders which, in accordance with standard practice, are not subject to Assembly procedure. However, the Committee agreed its own amendment to this clause to ensure that commencement orders in Part 3 of the Bill will be subject to draft affirmative procedure as follows:

Clause 247, page 160, line 16
At end insert—
( ) No order shall be made under subsection (1) in respect of Part 3 unless a draft of the order has been laid before, and approved by resolution of, the Assembly.

335. The reasons for this are provided in the Key Issues of this report.

336. The Examiner did however draw the Committee’s attention to several provisions.

337. In Part 9 the Examiner was concerned that powers in Clause 202(5) allowing OFMdFM to make rules regulating the procedure in appeals to the Planning Appeals Commission are subject to no Assembly procedure. He suggested that these powers should be made subject to negative resolution, akin to the level of scrutiny accorded to most of the subordinate legislation under the Bill relating to procedural matters. The Committee agreed with his concerns and asked the Department to address this anomaly. The Department indicated that it would bring it to the attention of OFMdFM but a response from the Department was not provided before formal clause consideration and Clause 202 was agreed as drafted. However, on 17 February 2011 the Committee was advised by the Department that in response to the Committee’s request it would be tabling the following amendment at consideration stage which was accepted by the Committee:

Clause 202, Page 133, Line 32
At end insert—
‘(7A) Rules made under subsection (5) shall be subject to negative resolution.’

338. Similarly, in Part 14 the Examiner was concerned that the powers in Clause 226(3) allowing the Department to make rules regulating the procedure in respect of local inquiries are also subject to no procedure. Again he suggested that these rules should be subject to negative resolution. In response to the Committee’s query on this issue, the Department indicated that it would recommend the Examiner’s comments to the Minister but a response was not forthcoming in time to be included in the Committee’s report.

339. In relation to Clause 229(1) and (2), the Examiner drew the Committee’s attention to the fact that the Bill allocates the function of appointing special advocates for the purposes of this clause to the Advocate General for Northern Ireland. He pointed out that as a consequence of this, rules under Clause 229(5) would be made by the Lord Chancellor and laid before Parliament at Westminster in accordance with the negative procedure there (Clause 229(6)). The Examiner suggested that this is out of place in Clause 229 which, in contrast to 228, is the fully devolved provision relating to the public interest relating to the security of premises or property other than that within Clause 228. He therefore suggested that Clause 229 should more appropriately confer functions on the Department of Justice and the Attorney General for Northern Ireland and that all the rules made under Clause 229 should be subject to draft negative resolution.

340. In response to these concerns the Committee asked the Department to consider amending Clause 229 accordingly. Following consultation with the Department of Justice, the Department agreed to make the following amendments which were accepted by the Committee:

Clause 229, Page 147, Line 14
Leave out ‘Advocate General’ and insert ‘Attorney General’

Clause 229, Page 147, Line 18
Leave out ‘Advocate General’ and insert ‘Attorney General’

Time limits (Clauses 131 & 44)

341. The Committee questioned the continuation of a 10 year time limit for breaches of planning control other than for building, engineering, mining or other operations and the change of use of any building to use as a dwelling house (Clause 131(3)). Members asked if the Department would consider reducing this period on the grounds that a single period would reduce confusion and better enforcement should require less time to identify such breaches.

342. The Department indicated that the Minister accepted that introducing a single time period would make the system simpler and less open to misunderstanding and suggested that a single period of 7 years for all planning activities might be appropriate. The Committee questioned the point at which such a change would become applicable and was assured that time limits would not be applied retrospectively.

343. The Committee was not content for the current 4-year period to be increased to 7 years but agreed that a single period of 5 years would provide the most appropriate balance for time limits on breaches of all planning controls.

344. The Department accepted this and agreed to amend the Clauses 131 and 44 as a consequence accordingly. The amendment was not available in time for the report but the Department gave the following assurance in writing:

‘….we are currently working with our lawyers to bring forward the further amendments within clause 131 and any necessary consequential amendments to change the time limits for both the 4 year and 10 year periods to 5 years. We will forward these as soon as we have them.’

Stop notices (Clauses 134-136, 149-150 & 183-186)

345. The Committee received a written delegation requesting that the issuing of stop notices be looked at more closely during scrutiny of the Bill. Members asked for more information on the number of stop notices that have been issued and were advised that since 2009 10 stop notices have been issued and 7 temporary stop notices. Of the temporary stop notices were followed by a notice and 1 by an injunction.

346. The Department also advised that powers to issue temporary stop notices have been carried over into the Planning Bill by Clause 134 and that this will enable the planning authority to prevent unauthorised development at an early stage without first having to issue an enforcement notice. In addition it allows up to 28 days for the planning authority to decide whether further enforcement action is appropriate and what action should be without the breach intensifying by being allowed to continue. The provisions also impose certain limitations on activities that specify that contravention of such a notice would become a criminal offence punishable on summary conviction by a limited fine (the level depending on amendments – see Levels of scales and fines) or on indictment by an unlimited fine.

347. The Committee accepted that the legislation provided the necessary tools for enforcement but that the level of enforcement activity would depend on the degree of priority it was given and the resources allocated to it by local authorities. It also noted that this activity may have compensation implications which will be another aspect for planning authorities to take into consideration when they take on responsibility for planning functions.

Consistency of enforcement (Clause 140)

348. The Committee sought an indication of if and how the Department would oversee how councils conduct enforcement and if there would be any mechanism to ensure consistency across the different council areas.

349. The Department indicated that the devolution of planning functions to councils would undoubtedly result in variation between councils and that this was natural consequence of devolving planning powers. However the Department reminded the Committee that the audit powers provided in Part 10 allows the Department to look at councils’ delivery and can be used to audit, review and encourage best practice. It noted however that this would be done through dialogue with councils.

350. The Committee accepted this response.

Clarification of urgent works (Clause 160)

351. The Committee sought clarification of ownership under this clause.

352. The Department explained that under this clause the planning authority (council or Department) may carry out and recover the costs of urgent works to either a listed building or a building in a conservation whose preservation is important for maintaining the character or appearance of that area. The owner must be given at least 7 days notice of the works to be carried out.

353. The owner may appeal the notice within 28 days and grounds for appeal are that the work is unnecessary, that a temporary structure or support has been left in place for an unreasonable period or that the cost is unreasonable or its recovery would cause hardship. An owner who does not pay the cost set out in the notice may be taken to court by the planning authority.

354. The Committee accepted this explanation.

Part 6 – Compensation

355. This part carries forward compensation provisions contained in the Land Development Values (compensation) Act (NI) 1965, the Planning (NI) Order and the Planning Reform (NI) Order 2006. It transfers enforcement powers that currently fall to the Department to district councils. Issues raised in relation to Part 6 included:

  • Stop notices (see Part 5)
  • Compensation for revoking
  • Duty of statutory consultees to respond

Compensation for revoking (Clause 178)

356. Most of the councils that submitted evidence to the Committee expressed concern about this clause. The Committee sought more information on revoking action to date including the total number of applications that have been revoked and the amount of compensation paid. The Committee also asked the Department to consider making an amendment to require the Department to pay the compensation due when the Department exercises its power to revoke a planning application.

357. The Department explained that Clause 78 of the Bill allows the Department to intervene if a council is not fulfilling its duties to revoke a planning permission. When such an order is made by the Department it has the same effect as if made by the council. Responsibility for any subsequent compensation payment rests with the council under this clause.

358. The Department also told the Committee that its records show that 24 revocation / modification cases arose between 2000 and 2006. It also informed the Committee that whilst the method of data storage made it impossible to distinguish between payments for revocation and modification, it was able to report that there were no payments relating to revocation / modification for between 2006 and November 2010. It also stressed that it is normal practice to revoke or modify planning permissions with the agreement of the parties concerned (for example revoking one planning permission for the substitution of another) therefore no compensation liability arises.

359. The Department indicated it would not consider an amendment but stressed that it anticipated such occurrences to be very rare and that it would also try to seek agreement with the council they do. The Committee accepted this position.

Duty of statutory consultees to respond (Clauses 187 & 224)

360. The Committee was extremely concerned when advised by the Department that in the event of a late or non-response from a statutory consultee, a council would be liable for its decision. This would apply even if a decision that had been made after the agreed time limit had to be revoked as a result of information coming forward from a statutory consultee that had not responded in time.

361. In the Committee’s opinion this was unfair and it asked the Department to consider an amendment ensuring that councils would not be held liable for decisions made where a statutory consultee had failed to respond within the required period.

362. The Department indicated that it was not willing to bring forward such an amendment and the Committee subsequently agreed its own amendment as follows:

New Clause

After Clause 187 insert

‘Compensation: decision taken by council where consultee fails to respond under section 224

At end insert—

‘187A. (1) Where a consultee fails to respond to a council consultation in accordance with section 224(3) and that council:

(e) takes a decision under this Act in the absence of such a response; and

(f) subsequently receives information which the council could reasonably expect to have been included in that response; and

(g) decides to revoke or modify planning permission due to the information referred to in paragraph (b); and

(h) compensation is payable by a council under section 178 in connection with the decision under paragraph (c);

the relevant department shall pay to the council the amount of compensation payable.

(2) For the purposes of subsection (1) “the relevant department" means the department (if any) to which the consultee is accountable.’’

Part 7 – Purchase of Estates

363. This part deals with purchase notices and enables a land owner who claims their land is left without reasonable beneficial use by virtue of a planning decision, to issue a purchase notice to seek to have the district council acquire it from them and be paid compensation. Issues raised in relation to Part 7 included:

  • Interpretation of ‘reasonably’

Interpretation of ‘reasonably’ (Clause 189)

364. The Committee sought clarification of the use of the term ‘reasonably beneficial use’ in this clause. The Department informed the Committee that ‘reasonably beneficial use’ is not defined in this legislation or in any equivalent UK legislation as each case should be examined on its own individual merits.

365. The Committee accepted this explanation.

Part 8 – Further Provisions as to Historic Buildings

366. This part re-enacts powers within the 1991 Planning Order for the continuance of the Historic Buildings Council for the making of grants by the Department towards the maintenance and repair of listed buildings and the acquisition of listed buildings. Issues raised in relation to Part 8 included:

  • Obtaining expert information (see Part 4)
  • The roles of different bodies related to listed buildings

The roles of different bodies relating to listed buildings (Clause 196)

367. Several submission to the Committee’s call for evidence requested clarification on the roles of the different bodies relating to listed buildings and the Committee sought further information on this issue.

368. The Department’s response indicated that it is responsible for the listing and de-listing of buildings of special architectural of historic interest under the 1991 Planning Order which have been carried over into the Planning Bill. Listing covers the complete interior and exterior of the building and can also extend to features and free standing objects within the curtilage of the building. Around 8,500 structures are listed. It noted that it has to consult the Historic Buildings Council when it compiles or amends a list of buildings of special architectural or historic interest. In effect, this means that the current powers of the NIEA will remain with the Department, with the exception of Building Preservation Notices, while the current powers of Planning Service, including enforcement, will devolve to councils.

369. The Committee accepted the explanation but stressed the importance of better liaison between statutory consultees and councils.

Part 9 – The Planning Appeals Commission

370. This part re-enacts existing powers within the 1991 Planning Control Order which provide for the continuance and procedures of the PAC. Issues raised in relation to Part 9 included:

  • Delegated powers (see Part 5)
  • Award of costs

Award of costs (Clause 202)

371. Several respondents to the Committee’s call for evidence felt that the PAC should have the power to award costs where it felt that an appeal had been made frivolously or vexatiously. The Committee agreed with this and asked the Department to consider an amendment which the Department agreed to introduce as follows:

New clause

After clause 202 insert—

‘Power to award costs

202A.—(1) The appeals commission may make an order as to the costs of the parties to an appeal under any of the provisions of this Act mentioned in subsection (2) and as to the parties by whom the costs are to be paid.

(2) The provisions are-

(a) sections 58, 59, 95, 96, 114, 142, 158, 164 and 172;

(b) sections 95 and 96 (as applied by section 104(6));

(c) in Schedule 2, paragraph 6(11) and (12) and paragraph 11(1)

(d) in Schedule 3, paragraph 9.

(3) An order made under this section shall have effect as if it had been made by the High Court.

(4) Without prejudice to the generality of subsection (2), the Master (Taxing Office) shall have the same powers and duties in relation to an order made under this section as the Master has in relation to an order made by the High Court.

(5) Proceedings before the appeals commission shall, for the purposes of the Litigants in Person (Costs and Expenses) Act 1975 (c. 47), be regarded as proceedings to which section 1(1) of that Act applies.’

New clause

After clause 202 insert—

‘Orders as to costs: supplementary

202B.—(1) This section applies where—

(a) for the purpose of any proceedings under this Act—

(i) the appeals commission is required, before a decision is reached, to give any person an opportunity, or ask any person whether that person wishes, to appear before and be heard by it; and

(ii) arrangements are made for a hearing to be held;

(b) the hearing does not take place; and

(c) if it had taken place, the appeals commission would have had power to make an order under section 202A requiring any party to pay any costs of any other party.

(2) Where this section applies the power to make such an order may be exercised, in relation to costs incurred for the purposes of the hearing, as if the hearing had taken place.’

372. The Committee was content with this amendment.

Part 10 – Assessment of Council’s Performance or Decision Making

373. This part introduces new provisions for the Department to undertake audits or assessments in respect of planning functions that will transfer to district councils. It includes powers about the reporting of these audits or assessments. Issues raised in relation to Part 10 included:

  • Consistency of enforcement (see Part 5)
  • Assessment of councils’ performance

Assessment of councils’ performance (Clause 203)

374. The Committee requested more information on how the level of scrutiny under this clause will tie in with the audit function of the Department.

375. The Department replied that this clause gives it powers to conduct an assessment of a council’s performance or appoint a person to do so. The assessment may cover the council’s performance of their planning functions in general or of a particular function.

376. The Department indicated that a key way to demonstrate the effectiveness and integrity of the planning system will be through governance and performance management and monitoring will be critical in ensuring that planning functions are carried out and are seen to be carried out in a clear, fair and consistent manner and that best practice is applied across the new district councils. These functions will also be important in providing a quality assurance service for councils.

377. The Department noted that at present it has its own planning audit function which undertakes regular reviews of planning processes within Planning Service. In relation to councils, the Local Government Auditor is currently responsible for financial and value for money audits. However, the nature of these local government audits is very different from the planning audit function which focuses primarily on specialist planning issues.

378. The Department said that in light of the views previously expressed by political representatives, including the Environment Committee, industry representatives and others in relation to the need for strong governance arrangements, it proposed that central government should have a statutory audit / inspection function. An audit / inspection function of this nature could cover general or function-specific assessments of local government’s planning functions, reviewing planning processes and the application of policy, with a focus on quality assurance, advice and the promotion of best practice. The Department stressed that it believed that this approach will help to provide further assurance to the public that the planning system is open, fair and transparent.

379. The Committee accepted this explanation.

Part 11 – Application of Act to Crown Land

380. This part re-enacts provisions within the 1991 Planning Order which apply planning legislation to the Crown subject to certain exceptions. New powers are introduced to deal with urgent Crown development applications. One issue was raised in relation to Part 11:

  • Delegated powers (see Part 5)

Part 12 – Correction of Errors

381. This part re-enacts provisions from the 2006 Planning Reform Order to correct decision documents including omissions. One issue was raised in relation to Part 12:

  • Correction of errors

Correction of errors (Clause 215)

382. The Committee was concerned that the wording of this clause was cumbersome and thereby difficult to interpret. Members asked if it could be redrafted and welcomed the following amendments accordingly:

Clause 215, Page 140, Line 2
After ‘it’ insert ‘-(a)’

Clause 215, Page 140, Line 2
After ‘(a)’ insert ‘:or
(b)’

Part 13 – Financial Provisions

383. This part deals with financial provisions and re-enacts powers for the payment of fees and charges as well as new specific powers to charge multiple fees for retrospective planning applications. Powers for the Department to pay grants for research and bursaries to bodies providing assistance in relation to certain development proposals are also re-enacted. Issues raised in relation to Part 13 included:

  • Fees and charges
  • Grants to bodies providing assistance

Fees and charges (Clause 219)

384. The Committee sought further information on the setting of fees and the ability of councils to recoup costs for other planning functions other than assessing planning applications.

385. The Department responded that for the first three years after planning functions are transferred to councils, the Department would continue to set the fees. It noted that it was currently undergoing a review of these fees to make them fairer and more reflective of the true costs involved in the process. It also noted that it is currently undergoing a review of its staffing structures so that it has an accurate indication of the costs of the other planning functions to be transferred.

386. The Department said that it will review fees after three years with a view to passing responsibility for fee-setting to individual councils. While councils will then have the ability to set their own fees, the Department anticipates councils working together on a voluntary basis in this regard.

387. The Committee accepted this explanation and costs of devolved planning functions are discussed further under ‘resources’.

Grants to bodies providing assistance (Clause 221)

388. One of the respondents to the Committee’s call for evidence suggested that this clause should be strengthened by the inclusion of a requirement for bodies to further the understanding of planning policy proposals. The Committee asked the Department to consider such an amendment and it agreed to bring forward the following amendment at consideration stage:

Clause 221, Page 142, Line 41
After ‘understanding’ insert ‘of planning policy proposals and’

Clause 221, Page 142, Line 41
After ‘aspect of’ insert ‘other’

389. Also in relation to this clause, it was suggested that the oversight role of DFP was out of date, no longer needed and was not present in similar grant making provisions in other legislation.

390. Again the Committee asked the Department to update the clause with a suitable amendment and the Department agreed with the following amendment accordingly:

Clause 221, Page 143, Line 8
Leave out from ‘, with’ to ‘Personnel,’ in line 9

Part 14 – Miscellaneous and General Provision

391. This part deals with a number of miscellaneous and general provisions including the introduction of powers for persons or bodies which are required to be consulted in the determination of applications of planning permission. Issues raised in relation to Part 14 included:

  • Delegated powers (see Part 5)
  • Duty of statutory consultees to respond (see Part 6)
  • Involving public agencies
  • Compatibility of IT systems

Involving public agencies (Clause 226)

392. Councils that responded to the Committee’s call for evidence wanted reassurance that councils would be closely involved in any decision to hold a local public inquiry. The Committee also sought clarification of who would cover the costs of government agencies in the event of a public inquiry.

393. The Department clarified that only it could initiate a local public inquiry and that it would pay for any inquiry it causes under this provision. The Committee was content with this response.

Compatibility of IT systems (Clause 237)

394. The Committee questioned the compatibility of council and Departmental IT systems. Its concerns were based on problems it has been made aware of during the roll out of the Department’s electronic planning portal, ePIC.

395. The Department replied that planning systems conform to IT best practice and use civil service strategic tool sets which enable exchange of information and integration with other IT systems and that the compatibility of Departmental and council IT systems will be dealt with under the pilot projects with councils.

396. The Department also noted that councils will be required to keep and make available a planning register and that a development order may require the Department to populate the register of the relevant district council when an application is submitted directly to it or issues a notice under departmental reserve powers.

397. The Committee accepted the principle that as central and local government systems are required to be of the same standard, the expectation is that they will be compatible.

Part 15 – Supplementary

398. This part covers the interpretation, further provision, minor and consequential amendments, repeals, commencement provision and short title. Issues raised in relation to Part 15 included:

  • Delegated powers (See Part 5)
  • Interpretation of reserved matters

Interpretation of reserved matters (Clause 243)

399. On behalf of respondents to the call for evidence, the Committee asked the Department to interpret ‘reserved matters’ in this clause. The Department replied that ‘reserved matters’ is defined in subordinate legislation – the Planning (General Development) Order (Northern Ireland) 1993 and the Committee was content with this response.

Schedule 2 – Review of old Mineral Planning Permission

Definition of dormant sites (Schedule 2)

400. The Department advised the Committee that it would be amending the definition of ‘dormant site’ in this schedule to take account of the fact that it has never been enacted and is now out of date. Rather than including another date the Department intends to define a dormant site as a period of time as follows:

Schedule 2, Page 164, Line 33
Leave out from ‘in’ to the end of line 34 and insert ‘within the period of 15 years ending on the date on which this Schedule comes into operation.’

401. The Committee accepted the explanation and amendment accordingly.

Schedule 5- The Historic Buildings Council

Duration of tenure on Statutory Advisory Councils (Schedule 5)

402. One of the respondents to the Committee’s call for evidence suggested that the period of tenure for a member of the Council should be for a minimum of 3 years rather than a maximum (Schedule 5, paragraph 2). They suggested that a member is only getting into the role and responsibilities after a year in post and the quick change over results in a major break in the consistency of advice it gives to NIEA.

403. The Committee agreed to recommend that this issue is taken into consideration during the review of the 3 Statutory Advisory Councils that is underway.

Issues Relating to the Bill in General

Governance of Planning Functions at Council Level

404. The Committee was extremely concerned about the timing of the Bill because the governance arrangements for ensuring equality and fairness in council decisions are not yet in place. The Department insisted that the Planning Bill would not be implemented until Local Government Reform had taken place and the two processes would progress in tandem.

405. The Committee drew the Department’s attention to the Equality Impact Assessment (EQIA) carried out at a strategic level on the Reform of the Planning System (Appendix 6). An assessment of potential substantive and procedural impacts by Section 75 grounds indicated that:

“While there may be no strong indication that religious belief will impact on the regional dimensions to the reformed planning system, given the correlation between political opinion and community background/religion, there may be concerns, whether real or perceived, that the political allegiance of elected members could reflect in local planning decisions at district council level and in particular where elected members are directly involved in any decision-making process. These anxieties should be duly acknowledged in any emerging proposals.

406. The Committee commissioned research on the EQIA and was advised that the Bill does not contain significantly greater detail in terms of equality safeguards than the reform process for which the EQIA was produced so there would be relatively little detail on which to base another EQIA. The Research paper also suggested that the impacts of the planning process will be better understood with the development of appropriate guidance, subordinate legislation and local plans, for which equality impact assessments will be required.

407. The research clarified that the Section 75 duty remains applicable at local authority level and therefore local planning policies would require an equality impact assessment. The Equality Commission envisaged that:

“… new local development plans will be effective tools in assisting district councils to fulfil their duties under Section 75 of the Northern Ireland Act to have due regard to the need to promote equality of opportunity and good relations".

408. The Committee agreed to pursue the equality implications of the Bill after Committee Stage but considered options available to it during the legislative process for preventing planning functions being devolved to local authorities until the necessary checks and balances were in place. These were identified as obtaining an assurance from the Minister that it was his intention for the two pieces of legislation to be brought forward together, delaying commencement of key moments of the Bill by defining their start point in law, making the commencement of key moments of the Bill subject to Assembly approval or voting the Bill down at final stage.

409. The Committee sought and received reassurance from the Minister that the planning functions of the Bill would not be devolved to local councils until governance structures were in place. In his response the Minister indicated that:

“… the transfer of planning powers to district councils will not take place until the new governance arrangements are in place for councils along with a revised ethical standards regime which includes a mandatory Code of Conduct for councillors."

410. Members welcomed this but mindful that responsibility for such a decision was on the verge of potential change, sought the reassurance of a legislative mechanism to prevent functions transferring to councils too soon.

411. Ideally the Committee wanted to link the commencement of the Bill to that of the Local Government Reform Bill. However, it was advised that this was not technically possible as the Local Government Reform legislation does not yet exist. The next best alternative was deemed to be to ensure that none of the commencement orders passing the responsibility of planning functions to councils could take place without the approval of the Assembly and members agreed to make the commencement of Part 3 (Planning Control) subject to draft affirmative procedure (details of amendment under delegated powers).

Resources

412. All respondents to the Committee’s call for evidence raised the issue of resources. Many were sceptical of the Minister’s suggestion that the process of transferring planning powers to local authorities would be cost neutral and the Committee asked the Department for more information.

413. The Department reminded the Committee that it is in the process of consulting on a radical reform of the planning fee structure and maintained that it will be ensuring that in due course fees will more accurately reflect the true cost associated with the development in question. The Committee welcomed this, acknowledging that the current fee structure was out of synch with the work involved.

414. The Committee was also concerned about the cost of the other planning functions that would be handed to councils; survey of district, local development plans and enforcement in particular. Members were also keen to know who would pay for expertise required to inform the various planning processes. In addition, members sought clarity on who would be required to cover the costs of the PAC and those of an independent examiner, should one be appointed by the Department.

415. The Department insisted that appropriate resources would transfer to councils with the functions and that it was currently in the process of assessing the costs of various planning functions. It also confirmed that costs incurred by PAC in the process would continue to be covered by OFMdFM and if it appointed an independent examiner, the costs would be covered central government.

416. The Committee sought confirmation from the Department that there would be strict guidance on what would be covered by fees and what was expected to be covered by council funds.

Capacity and Training

417. The Committee recognised that the transfer of planning functions to local authorities represented a seismic shift in approach and involvement for councillors and council staff. Along with many respondents to the Committee’s call for evidence, members called for training and capacity building to be seen as an essential part of the process.

418. The Department agreed and indicated it was drawing up specifications of how the process would work and would be carrying out a series of pilots across all councils to address the change in culture required. It indicated it would be working closely with NILGA and industry bodies such as the Royal Town Planning Institute and the Royal Institute of Chartered Surveyors on issues surrounding implementation. Specific formal training will be provided starting in April / May 2011 and councils would be given opportunities to rehearse their new roles and responsibilities before the process ‘went live’.

419. The Committee welcomed the proposals but cautioned on the need for training programmes to be tailor-made and of a suitable duration and also for the whole process to be adequately funded.

Land Use Strategy

420. The Committee recognised the need for the Department to retain control over major planning decisions and those of regional significance and welcomed proposals for secondary legislation to set out the criteria for these. However, members inquired on what basis decisions of these kinds would be made by the Department and how, in a plan-led system consistency would be achieved for decisions across Northern Ireland.

421. The Department indicated that the overarching strategy for regionally significant and major planning decisions would be the Regional Development Strategy but the Committee stressed the need to think beyond this to full land use planning akin to that being carried out in Scotland. A land use strategy would look beyond regional development taking account of land across the whole region

Review Period

422. Several stakeholders expressed concern about the process of devolving planning functions to local authorities and suggested that there should be a requirement in the Bill for the Department to review implementation of the bill within 3 years of it being enacted and periodically thereafter.

423. The Committee agreed with the need for a review of the Bill and asked the Department if it would consider an appropriate amendment. The Department refused on the grounds that it, the Executive or indeed the Environment Committee, could initiate reviews as and when they saw fit and that there was no need for such a requirement to be placed on the face of the Bill. The Committee considered bringing forward its own amendment but eventually agreed that the decision if and when to review implementation of the Bill should be left to policy rather than legislation.

Third party right of appeal

424. The majority of respondents to the Committee’s call for evidence on the Bill believed it would be very important to include provision for third party right of appeal in the Bill. Some felt there may be scope to introduce it initially as a transitionary provision, while the return of planning powers to local authorities embeds whilst others called for it to be introduced on a limited basis to ensure that vexatious appeals are curbed. Research provided to the Committee outlined the pros and cons of the inclusion of third party appeals and identified various models that could be adopted.

425. In response the Department stated that the Government response to the Planning Reform policy consultation was agreed by the Executive on 25 February 2010. The response indicated that given that the Department had made it clear that there were no proposals to make provision for third party appeals in the current package of reforms, and on the basis of the analysis of responses, there did not appear to be any immediate compelling reason to proceed in the public interest towards making provision for third party appeals in the current round of planning reform proposals.

426. The response also indicated that given the majority of respondents supported their introduction, the Department considers that further consideration of third party appeals should be deferred until the extensive changes to the planning system under planning reform and implementation of local government reform have settled down and are working effectively. In addition, this approach would ensure that third party appeals would not present an opportunity to hinder the recovery and delivery of a productive and growing economy in Northern Ireland. Third party rights at this stage could well be a competitive economic disadvantage to Northern Ireland, given that third party appeals have not been introduced in England, Scotland or Wales and there is a suggested significant risk of potential adverse impact upon investment in the Northern Ireland economy if they were to be introduced.

Community Amenity Levy

427. There was much discussion in the Committee about the possibility of introducing a Community Infrastructure Levy. Many respondents also believed that consideration should be given to introducing this, at a time to be specified, in order to increase planning gain. 71% of respondents to the Department’s consultation on Planning Reform agreed that developers should be required to make a greater contribution towards the provision of infrastructure but no reference is made in the Bill to a community infrastructure fund or similar levy arrangement.

428. The Committee asked the Department to consider the introduction of a community infrastructure levy and the Department stated that this is beyond the scope of the Planning Bill. The Community Infrastructure Levy was introduced in England and Wales but does not extend to Northern Ireland. The issue of a wider system of developer contributions to more general infrastructure provision beyond site specific mitigation was included in the planning reform consultation to initiate debate on this topic. Responses indicated an appetite for seeking enhanced contributions from developers and the Department has recommended that future work in this area be taken forward at Executive level in relation to responsibility for the funding and provision of strategic infrastructure.

429. The Committee considered an amendment of its own to introduce powers to enable the Department to introduce a Community Amenity Levy in the future but eventually agreed that in the time available it was unable to conduct sufficient research to be sure this was the right approach. Instead it agreed to recommend that the Department should explore the potential of a Community Amenity Levy in the future.

Marine Spatial Planning

430. The Committee expressed disappointment at the absence of any recognition of the roles of the Department and local authorities in relation to marine spatial planning. Neither was there any indication of how potential overlaps between terrestrial and marine planning would be addressed.

431. The Department confirmed that marine planning was not in this Bill was would be dealt with through separate legislation. It has been agreed by the Executive for a Northern Ireland Marine Bill to be brought forward early in the next session, 2012, and that the UK Marine Act already applies where marine matters are reserved or accepted. It also stressed that a Marine Policy Statement has been made in this session and that the first Marine Plan is scheduled to be in place in 2014.

Notices of Completion

432. Several respondents to the Committee’s call for evidence suggested that notices of completion should be introduced through the Bill. The analysis of the provisions of the Bill provided by QUB, through Assembly Research and Library Services, (Appendix 5) also drew the Committee’s attention to the lack of inclusion of notification of development and completion of development certificates.

433. QUB pointed out that although 69% respondents to the Department’s consultation were in support of their introduction the Department declined to introduce them in the Bill arguing that the notices would add another layer of bureaucracy to the process and that it would need to examine the practicalities and outcomes of the Scottish experience with such notices before reaching any conclusions. The Department indicated that it wanted to consider resource implications and to explore the potential for closer links with the building control notification system and any benefits that might come from planning functions and building control functions both being the responsibility of local authorities.

434. The QUB paper said that there is evidence to suggest that notices of initiation provide security for land owners who could be assured that they have commenced development prior to expiration to their permission, which remains an area of some concern. This would alleviate uncertainty and ensure consistent agreement on the definition of commencement. It would also ensure that development is completed in accordance with the permission granted thereby reducing levels of non-compliance and the need for enforcement action.

435. The Committee accepted the Department’s rationale for not bringing forward notices of completion at this stage but agreed to recommend that the Department revisits the issue when the two functions, planning and building control, are together in council.

Chief Planner

436. Several respondents to the call for evidence and the QUB analysis paper on Implementation, Performance and Decision making (Appendix 5) noted that in other regions of the UK, a Chief Planning Officer provides a professional leadership role to complement administrative leadership provided through elected representatives and their departments. Reference was made to the comparable roles of the Chief Medical Officer and the Chief Scientific Officer in Northern Ireland.

437. The Committee asked the Department if it would consider including in the Bill a requirement for a Chief Planning Officer for Northern Ireland to be appointed. In response, the Department advised that the appointment of a Chief Planner does not need to be provided for in legislation but may be appointed at any time such a policy decision might be made.

Ensuring vulnerable and hard to reach groups can engage in the planning process

438. The Committee was concerned that there was a risk that community engagement processes would exclude vulnerable groups and those that were hard to reach. Again reference was made to the Equality Impact Assessment (Appendix 6) which identified that low level literacy rates for example, might act as a barrier to full participation in some planning processes.

439. The Committee requested research into how vulnerable groups are represented in the planning systems of other jurisdictions and was advised that local authorities in England, Scotland, Wales and the Republic of Ireland have developed a range of processes and structures to enable community engagement. In most cases these are supported and facilitated by community planning support or networking organisations in the community and voluntary sector.

440. The Department noted that the Bill requires it to prepare a Statement of Community Involvement setting out its policy for involving the community in its development management functions. However its aim is to encourage and facilitate the involvement of the community rather than require it. The Committee accepted the response but noted the need for close links between a local authority’s community plan and the local development planning process.

The legacy of area plans

441. Several respondents, especially local authorities, were concerned about the legacy of current area plans when a new plan-led system came into being. They asked if the area plan framework that is to be inherited by councils will be obsolete and what would happen where area plans were still not in place.

442. The Department advised that plans which have been adopted before planning powers transfer to councils will continue to apply until the new council’s own local development plan is adopted. It indicated that it anticipates progressing to adoption any draft plans which remain when powers transfer.

Clause by Clause Consideration of the Bill

443. The Committee conducted its clause by clause scrutiny of the Bill on 8 February 2011, 10 February 2011 and 15 February 2011 – see Appendix 2. The Committee recommended several amendments which are outlined below.

Clause 1 - General functions of Department with respect to development of land

444. At the meeting on 8 February the Committee decided to defer a decision on the Clause until the Department considered the possibility of including ‘wellbeing’. The Committee considered the Department’s response at its meeting on 10 February 2011 and decided to defer a final decision on the Clause until the meeting on 15 February 2011.

445. At the meeting on 15 February 2011 the Committee was content with the Clause as amended by the Department to ‘further’ sustainable development and ‘take account of’ policies and guidance and subject to a Committee amendment requiring the Department to promote or improve social well-being as follows:

Clause 1, page 1,
Leave out line 11 and insert—
(i) furthering sustainable development; and
(ii) promoting or improving social well-being.

Clause 1, Page 1, Line 12
Leave out ‘have regard to’ and insert ‘take account of’

Clause 2 - Preparation of statement of community involvement by Department

446. At the meeting on 8 February 2011 the Committee was content with the clause subject to a Departmental amendment to include a finite period for the preparation and production of its statement of community involvement as follows:

Clause 2, Page 2, Line 7
After ‘prepare’ insert ‘and publish’

Clause 2, Page 2, Line 11
At end insert—
‘(3) The Department must prepare and publish a statement of community involvement within the period of one year from the day appointed for the coming into operation of this section.’

Clause 3 - Survey of district

447. At the meeting on 8 February 2011 the Committee decided to defer a decision on the Clause until a draft Committee amendment was brought back for further consideration. At the Committee meeting on 10 February the Committee agreed, after a division, that it was content with the Clause subject to a Committee amendment to include climate change as follow:

Clause 3, Page 2, Line 27
At end insert—
‘( ) the potential impact of climate change

Clause 4 - Statement of community involvement

448. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 5 - Sustainable development

449. At the meeting on 8 February 2011 the Committee welcomed the Department’s agreement to amend the clause to ‘take account of’ policies and guidance as follows:

Clause 5, Page 3, Line 7
Leave out ‘have regard to’ and insert ‘take account of’

450. However the Committee decided to defer a decision on the Clause until the Department had reported back to the Committee on Clause 1 in relation to sustainable development. At the meeting on 10 February 2011 the Committee decided it was content with the Clause subject to a Committee amendment to further sustainable development as follows:

Clause 5, Page 3, Line 25
Leave out ‘contributing to the achievement of’ and insert ‘furthering’
On 15 February 2011 the Department agreed it would bring forward both these amendments.

Clause 6 - Local development plan

451. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 7 - Preparation of timetable

452. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 8 - Plan strategy

453. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 9 - Local policies plan

454. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 10 - Independent examination

455. At the meeting on 8 February 2011 the Committee decided to defer a decision on the Clause until the Department reported back on who would be responsible for paying the costs if an independent examiner was used. At the meeting on 10 February the Department agreed to amend the Clause to strengthen its position on the appointment of an independent adviser and the Committee agreed the clause subject to this Departmental amendment as follows:

Clause 10, Page 6, Line 10
At end insert—
‘(4A) The Department must not appoint a person under subsection (4)(b) unless having regard to the timescale prepared by the council under section 7(l), the Department considers it expedient to do so.’

Clause 11 - Withdrawal of development plan documents

456. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 12 – Adoption

457. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 13 - Review of local development plan

458. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 14 - Revision of plan strategy or local policies plan

459. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 15 - Intervention by Department

460. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 16 - Department’s default powers

461. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 17 - Joint plans

462. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 18 - Power of Department to direct councils to prepare joint plans

463. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 19 - Exclusion of certain representations

464. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 20 – Guidance

465. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 21 - Annual monitoring report

466. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 22 – Regulations

467. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 23 - Meaning of “development"

468. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 24 - Development requiring planning permission

469. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 25 - Hierarchy of developments

470. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 26 - Department’s jurisdiction in relation to developments of regional significance

471. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 27 - Pre-application community consultation

472. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 28 - Pre-application community consultation report

473. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 29 - Call in of applications, etc., to Department

474. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 30 - Pre-determination hearings

475. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 31 - Local developments: schemes of delegation

476. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 32 - Development orders

477. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 33 – Simplified planning zones

478. At the meeting on 8 February 2011 the Committee deferred a decision on this Clause until further consideration at the meeting on 10 February 2011. At the meeting on 10 February 2011 the Committee decided to defer a final decision on the Clause until the meeting on 15 February 2011 when the Department had provided examples of guidance.

479. At the meeting on 15 February the Committee was content with the Clause as drafted.

Clause 34 – Making and alteration of simplified planning zone schemes

480. At the meeting on 8 February 2011 the Committee deferred a decision on this Clause until further consideration at the meeting on 10 February 2011. At the meeting on 10 February 2011 the Committee decided to defer a final decision on the Clause until the meeting on 15 February 2011 when the Department had provided examples of guidance.

481. At the meeting on 15 February the Committee was content with the Clause as drafted.

Clause 35 – Simplified planning zone schemes: conditions and limitations on planning permission

482. At the meeting on 8 February 2011 the Committee deferred a decision on this Clause until further consideration at the meeting on 10 February 2011. At the meeting on 10 February 2011 the Committee decided to defer a final decision on the Clause until the meeting on 15 February 2011 when the Department had provided examples of guidance.

483. At the meeting on 15 February the Committee was content with the Clause as drafted.

Clause 36 - Duration of simplified planning zone scheme

484. At the meeting on 8 February 2011 the Committee deferred a decision on this Clause until further consideration at the meeting on 10 February 2011. At the meeting on 10 February 2011 the Committee decided to defer a final decision on the Clause until the meeting on 15 February 2011 when the Department had provided examples of guidance.

485. At the meeting on 15 February the Committee was content with the Clause as drafted.

Clause 37 - Alteration of simplified planning zone scheme

486. At the meeting on 8 February 2011 the Committee deferred a decision on this Clause until further consideration at the meeting on 10 February 2011. At the meeting on 10 February 2011 the Committee decided to defer a final decision on the Clause until the meeting on 15 February 2011 when the Department had provided examples of guidance.

487. At the meeting on 15 February the Committee was content with the Clause as drafted.

Clause 38 - Exclusion of certain descriptions of land or development

488. At the meeting on 8 February 2011 the Committee deferred a decision on this Clause until further consideration at the meeting on 10 February 2011. At the meeting on 10 February 2011 the Committee decided to defer a final decision on the Clause until the meeting on 15 February 2011 when the Department had provided examples of guidance.

489. At the meeting on 15 February the Committee was content with the Clause as drafted.

Clause 39 - Grant of planning permission in enterprise zones

490. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 40 - Form and content of applications

491. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 41– Notice, etc., of applications for planning permission

492. At the meeting on 8 February 2011 the Committee deferred a decision on this Clause until the Department clarified if neighbour notification would be made compulsory. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 42 - Notification of applications to certain persons

493. At the meeting on 8 February 2011 the Committee deferred a decision on this Clause until the Department reported back on the number of occasions Planning Service had used the powers under this Clause. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 43 - Notice requiring planning application to be made

494. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

495. However, at the meeting on 22 February 2011 the Committee was advised that the Departmental amendment to Clause 131, as requested by the Committee, would have a consequential impact on this clause. The Committee noted the following consequential amendment:

Clause 43, Page 26, Line 2
Leave out paragraphs (a) and (b) and insert ‘within the period of 5 years from the date on which the development to which it related was begun’

Clause 44 - Appeal against notice under section 43

496. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted. However, at the meeting on 10 February 2011, an issue was raised under a later clause that had an impact on this clause and it was decided to defer a final decision. At the meeting on 15 February 2011 the Committee agreed a Departmental amendment to Clause 131 that would have a consequential impact on this clause and the Committee agreed this clause subject to that consequential amendment.

497. On 22 February 2011, the Committee noted the following consequential amendment:

Clause 44, Page 27, Line 16
Leave out from ‘4’ to ‘be,’ and insert ‘5 years’

Clause 45 - Determination of planning applications

498. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 46 - Power of council to decline to determine subsequent application

499. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 47 - Power of Department to decline to determine subsequent application

500. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 48 - Power of council to decline to determine overlapping application

501. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 49 - Power of Department to decline to determine overlapping application

502. At the meeting on 8 February 2011 the Committee was content with the Clause as amended by the Department to ensure a consistent approach throughout the Bill as follows:

Clause 49, Page 30, Line 29
After ‘land’ insert ‘made to it in accordance with section 26(5)’

Clause 50 - Duty to decline to determine application where section 27 not complied with

503. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 51 - Assessment of environmental effects

504. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 52 - Conditional grant of planning permission

505. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 53 - Power to impose aftercare conditions on grant of mineral planning permission

506. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 54 - Permission to develop land without compliance with conditions previously attached

507. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 55 - Planning permission for development already carried out

508. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 56 - Directions etc. as to method of dealing with applications

509. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 57 - Effect of planning permission

510. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 58 – Appeals

511. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

512. At the meeting on 15 February 2011 the Committee was content with a new clause after Clause 58 to prevent any new material being presented after an appeal has been lodged unless it could not have been presented at the time or there were exceptional circumstances for it not being presented as follows:

New clause

After clause 58 insert—

‘Matters which may be raised in an appeal under section 58

.—(1) In an appeal under section 58, a party to the proceedings is not to raise any matter which was not before the council or, as the case may be, the Department at the time the decision appealed against was made unless that party can demonstrate—

(a) that the matter could not have been raised before that time, or

(b) that its not being raised before that time was a consequence of exceptional circumstances.

(2) Nothing in subsection (1) affects any requirement or entitlement to have regard to—

(a) the provisions of the local development plan, or

(b) any other material consideration.’

Clause 59 - Appeal against failure to take planning decision

513. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 60 - Duration of planning permission

514. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 61 - Duration of outline planning permission

515. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 62 - Provisions supplementary to sections 60 and 61

516. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 63 - Termination of planning permission by reference to time limit

517. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 64 - Effect of completion notice

518. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 65 - Power of Department to serve completion notices

519. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 66 - Power to make non-material changes to planning permission

520. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 67 - Revocation or modification of planning permission by council

521. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 68 - Aftercare conditions imposed on revocation or modification of mineral planning permission

522. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 69 - Procedure for section 67 orders: opposed cases

523. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 70 - Procedure for section 67 orders: unopposed cases

524. At the meeting on 8 February 2011 the Committee was content with the Clause as amended by the Department.

Clause 71 - Revocation or modification of planning permission by the Department

525. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 72 - Orders requiring discontinuance of use or alteration or removal of buildings or works

526. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 73 - Confirmation by Department of section 72 orders

527. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 74 –and Power of Department to make section 72 orders

528. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 75 - Planning agreements

529. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 76 - Modification and discharge of planning agreements

530. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 77 –Appeals

531. At the meeting on 8 February 2011 the Committee was content with the Clause as drafted.

Clause 78 - Land belonging to councils and development by councils

532. At the meeting on 8 February 2011 the Committee was content with the clause subject to a Departmental amendment to delete an unnecessary reference as follows:

Clause 78, Page 49, Line 16
At end insert—
‘(c) Part 5.’

Clause 78, Page 49, Line 40
Leave out from ‘(except’ to ‘107’)’ in line 41

Clause 79 - Lists of buildings of special architectural or historic interest

533. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 80 – Temporary listing: building preservation notices

534. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 81 –Temporary listing in urgent cases

535. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 82 - Lapse of building preservation notices

536. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 83 - Issue of certificate that building is not intended to be listed

537. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 84 - Control of works for demolition, alteration or extension of listed buildings

538. At the meeting on 10 February 2011 the Committee was content with the Clause subject to a Committee amendment to raise the level of fine.

539. At the meeting on 15 February 2011 the Committee was informed that the Department was prepared to introduce an amendment to raise the level of fine and the Committee agreed to the Clause subject to the Departmental amendment as follows:

Clause 84, Page 53, Line 37
Leave out ‘£30,000’ and insert ‘£100,000’

Clause 85 - Applications for listed building consent

540. At the meeting on 10 February 2011 the Committee was content Clause subject to a Departmental amendment to ensure a consistent approach throughout the Bill as follows:

Clause 85, Page 54, Line 28
Leave out ‘directions’ and insert ‘the regulations or by any direction’

Clause 85, Page 54, Line 41
After ‘councils’ insert ‘or the Department’

Clause 86 - Notification of applications for listed building consent to certain persons

541. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 87 - Call in of certain applications for listed building consent to Department

542. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 88 - Duty to notify Department of applications for listed building consent

543. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 89 - Directions concerning notification of applications, etc.

544. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 90 – Decision on application for listed building consent

545. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 91 – Power to decline to determine subsequent application for listed building consent

546. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 92 – Power to decline to determine overlapping application for listed building consent

547. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 93 - Duration of listed building consent

548. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 94 - Consent to execute works without compliance with conditions previously attached

549. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 95 - Appeal against decision

550. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 96 - Appeal against failure to take decision

551. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 97 - Revocation or modification of listed building consent by council

552. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 98 - Procedure for section 97 orders: opposed cases

553. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 99 - Procedure for section 97 orders: unopposed cases

554. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 100 - Revocation or modification of listed building consent by the Department

555. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 101 - Applications to determine whether listed building consent required

556. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 102 - Acts causing or likely to result in damage to listed buildings

557. At the meeting on 10 February 2011 the Committee decided to defer a decision on this clause until the meeting on 15 February 2011.

558. At the meeting on 10 February 2011 the Committee was content with the Clause subject to a Departmental amendment to raise the level of fine and to a Committee amendment to provide for an option of conviction on indictment. Wording of amendments were not available in time for this report.

Clause 103 - Conservation areas

559. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 104 - Control of demolition in conservation areas

560. At the meeting on 10 February 2011 the Committee was content with the clause subject to a Departmental amendment to ensure a consistent approach throughout the Bill as follows:

Clause 104, Page 65, Line 38
Leave out from ‘consent’ to ‘section made’ in line 39 and insert ‘conservation area consent made’

Clause 104, Page 65, Line 40
After ‘any’ insert ‘conservation area’

Clause 105 - Grants in relation to conservation areas

561. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 106 - Application of Chapter 1, etc., to land and works of councils

562. At the meeting on 10 February 2011 the Committee was content with the clause subject to a Departmental amendment to ensure a consistent approach throughout the Bill as follows:

Clause 106, Page 67, Line 2
Leave out ‘Act’ and insert ‘Chapter’.

Clause 107 - Requirement of hazardous substances consent

563. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 108 – Applications for hazardous substances consent;

564. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 109 – Determination of applications for hazardous substances consent

565. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 110 – Grant of hazardous substances consent without compliance with conditions previously attached

566. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 111 – Revocation or modification of hazardous substances consent

567. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 112 – Confirmation by Department of section 111 orders

568. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 113 - Call in of certain applications for hazardous substances consent to Department

569. At the meeting on 10 February 2011 the Committee was content with the clause subject to a Departmental amendment to ensure a consistent approach throughout the Bill as follows:

Clause 113, Page 72, Line 28
Leave out ‘, 109 and 118(2) to (4)’ and insert ‘and 109’

Clause 114– Appeals and Effect of hazardous substances consent

570. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 115 - Change of control of land

571. At the meeting on 10 February 2011 the Committee was content with the clause subject to a Departmental amendment to allow the hazardous substances consent to remain in place if the control of land remains within the Crown:

Clause 115, Page 74, Line 20
At end insert—
‘( ) Subsections (2) and (3) do not apply if the control of land changes from one emanation of the Crown to another’

Clause 116 – Offences

572. At the meeting on 10 February 2011 the Committee decided to defer a decision on this clause until the meeting on 15 February 2011.

573. At the meeting on 15 February 2011 the Committee was content with the Clause subject to the Departmental amendment to raise the level of fine to £100,000 as follows:

Clause 116, Page 75, Line 31
Leave out ‘£30,000’ and insert ‘£100,000’

574. The Committee also agreed that although it had already agreed the clauses as drafted, the Committee is content with the Departmental amendments to raise the level of fine to £100,000 in Clauses 136, 146 and 149 if tabled as Consideration Stage by the Department.

Clause 117 – Emergencies

575. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 118 – Health and safety requirements

576. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 119 – Applications by councils for hazardous substances consent

577. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 120 - Planning permission to include appropriate provision for trees

578. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 121 - Tree preservation orders: councils

579. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 122 - Provisional tree preservation orders

580. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 123 - Power for Department to make tree preservation orders

581. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 124 - Replacement of trees

582. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 125 - Penalties for contravention of tree preservation orders

583. At the meeting on 10 February 2011 the Committee was content with the Clause subject to a Committee amendment to raise the level of fine.

584. At the meeting on 15 February 2011 the Committee was informed that the Department was prepared to introduce an amendment to raise the level of fine and the Committee agreed to the Clause subject to the Departmental amendment as follows:

Clause 125, Page 80, Line 26
Leave out ‘£30,000’ and insert ‘£100,000’

Clause 126 - Preservation of trees in conservation areas

585. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 127 - Power to disapply section 126

586. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 128 - Review of mineral planning permissions

587. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 129 - Control of advertisements

588. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 130 - Expressions used in connection with enforcement

589. At the meeting on 10 February 2011 the Committee decided to defer a decision on this clause until the meeting on 15 February 2011.

590. At the meeting on 15 February 2011 the Committee was content with the Clause as drafted.

Clause 131- Time limits

591. At the meeting on 10 February 2011 the Committee decided to defer a decision on this clause until the meeting on 15 February 2011.

592. At the meeting on 17 February the Committee considered an e mail from the Department and members were content with the Clause subject to the commitment from the Department to make an amendment. The e mail read as follows:

We are currently working with our lawyers to bring forward the further amendments within clause 131 and any necessary consequential amendments to change the time limits for both the 4 year and 10 year periods to 5 years. We will forward these as soon as we have them.

593. At the meeting on 15 February 2011 the Committee was content with the Clause subject to a Departmental amendment to make both time limits 5 years for breaches of planning control.

594. At the meeting on 22 February the Committee noted the following Departmental amendment to this clause:

Clause 131, Page 83, Line 23
Leave our ‘4’ and insert ‘5’

Clause 131, Page 83, Line 27
Leave out ‘4’ and insert ‘5’

Clause 131, Page 83, Line 30
Leave out ‘10’ and insert ‘5’

Clause 131, Page 83, Line 37
Leave out ‘4’ and insert ‘5’

Clause 132 - Power to require information about activities on land

595. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 133 - Penalties for non-compliance with planning contravention notice

596. At the meeting on 10 February 2011 the Committee was content with the clause subject to a Departmental amendment to raise the level of fine as follows:

Clause 133, Page 85, Line 21
Leave out ‘3’ and insert ‘5’

Clause 134 - Temporary stop notice

597. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 135 - Temporary stop notice

598. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

599. However, at the meeting on 22 February 2011 the Committee was advised that the Departmental amendment to Clause 131, as requested by the Committee, would have a consequential impact on this clause. The Committee noted the following consequential amendment:

Clause 135, Page 86, Line 28
Leave out ‘4’ and insert ‘5’

Clause 136 - Temporary stop notice: restrictions

600. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

601. At the meeting on 15 February 2011 the Committee was informed that the Department was prepared to introduce an amendment to raise the level of fine and the Committee agreed to the Clause subject to the Departmental amendment as follows:

Clause 136, Page 87, Line 18
Leave out ‘£30,000’ and insert ‘£100,000’

Clause 137 - Temporary stop notice: offences

602. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 138 - Issue of enforcement notice by councils

603. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 139 - Issue of enforcement notice by Department

604. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 140 - Contents and effect of enforcement notice

605. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 141 - Variation and withdrawal of enforcement notices by councils

606. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 142 - Variation and withdrawal of enforcement notices by Department

607. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 143- Appeal against enforcement notice

608. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 144 - Appeal against enforcement notice - general supplementary provisions

609. At the meeting on 10 February 2011 the Committee was content with the clause subject to a Departmental amendment to ensure a consistent approach throughout the Bill as follows:

Clause 144, Page 92, Line 38
Leave out ‘Department’ and insert ‘council’

Clause 145 - Appeal against enforcement notice - supplementary provisions relating to planning permission

610. At the meeting on 10 February 2011 the Committee was content with the clause subject to a Departmental amendment to ensure a consistent approach throughout the Bill as follows

Clause 145, Page 93, Line 42
Leave out ‘carrying into effect this Part’ and insert ‘taking steps under subsection (1)’

Clause 146 - Execution and cost of works required by enforcement notice

611. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

612. At the meeting on 15 February 2011 the Committee was informed that the Department was prepared to introduce an amendment to raise the level of fine and the Committee agreed to the Clause subject to the Departmental amendment as follows:

Clause 146, Page 95, Line 15
Leave out ‘£30,000’ and insert ‘£100,000’

Clause 147 - Offence where enforcement notice not complied with

613. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 148 - Effect of planning permission, etc., on enforcement or breach of condition notice

614. At the meeting on 10 February 2011 the Committee was content with the clause subject to a Departmental amendment to raise the level of fine as follows:

Clause 148, page 96, Line 27
Leave out from ‘level’ to ‘scale;’ and insert ‘£7,500’

Clause 149 - Enforcement notice to have effect against subsequent development

615. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

616. At the meeting on 15 February 2011 the Committee was informed that the Department was prepared to introduce an amendment to raise the level of fine and the Committee agreed to the Clause subject to the Departmental amendment as follows:

Clause 149, Page 98, Line 6
Leave out ‘£30,000’ and insert ‘£100,000’

617. At the meeting on 22 February 2011 the Committee was advised that the Departmental amendment to Clause 131, as requested by the Committee, would have a consequential impact on this clause. The Committee noted the following consequential amendment:

Clause 149, Page 97, Line 13
Leave out ‘4’ and insert ‘5’

Clause 150 - Service of stop notices by councils

618. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 151 - Service of stop notices by Department

619. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 152 - Enforcement of conditions

620. At the meeting on 10 February 2011 the Committee decided to defer a decision on this clause until the meeting on 15 February 2011.

621. At the meeting on 15 February 2011 the Committee was content with the Clause as drafted.

Clause 153 - Fixed penalty notice where enforcement notice not complied with

622. At the meeting on 10 February 2011 the Committee decided to defer a decision on this clause until the meeting on 15 February 2011.

623. At the meeting on 15 February 2011 the Committee was content with the Clause as drafted.

Clause 154 - Fixed penalty notice where breach of condition notice not complied with

624. At the meeting on 10 February 2011 the Committee decided to defer a decision on this clause until the meeting on 15 February 2011.

625. At the meeting on 15 February 2011 the Committee was content with the Clause as drafted.

Clause 155 - Use of fixed penalty receipts

626. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 156 – Injunctions

627. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 157 - Issue of listed building enforcement notices by councils

628. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 158 - Issue of listed buildings enforcement notices by Department

629. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 159 - Appeal against listed building enforcement notice

630. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 160 - Effect of listed building consent on listed building enforcement notice

631. At the meeting on 10 February 2011 the Committee was content with the clause subject to a Departmental amendment to specify the range of buildings on which it may carry out urgent works as follows:

Clause 160, Page 106, Line 15
Leave out ‘a listed building, and insert—
‘(a) a listed building, or
(b) a building in respect of which a direction has been given by the Department that this section shall apply’

Clause 160, Page 107, Line 3
After ‘council’ insert ‘or, as the case may be, by the Department’

Clause 161 - Urgent works to preserve building

632. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 162 - Hazardous substances contravention notice

633. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 163 - Variation of hazardous substances contravention notices

634. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

635. However, at the meeting on 22 February 2011 the Committee was advised that the Departmental amendment to Clause 131, as requested by the Committee, would have a consequential impact on this clause. The Committee noted the following consequential amendment:

Clause 163, Page 109, Line 1
Leave out ‘4’ and insert ‘5’

Clause 164 - Enforcement of duties as to replacement of trees

636. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 165 - Appeals against section 163 notices

637. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 166 - Execution and cost of works required by section 163 notice

638. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 167 - Enforcement of controls as respects trees in conservation areas

639. At the meeting on 10 February 2011 the Committee was content with the clause subject to a Departmental amendment to ensure a consistent approach throughout the Bill as follows:

Clause 167, Page 112, Line 22
After ‘council’ insert ‘or, as the case may be, by the Department’

Clause 168 - Enforcement of orders under section 72

640. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 169 - Certificate of lawfulness of existing use or development

641. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 170 - Certificate of lawfulness of proposed use or development

642. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 171 - Certificates under sections 168 and 169: supplementary provisions

643. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 172 - Offences

644. At the meeting on 10 February 2011 the Committee was content with the clause subject to a Departmental amendment to ensure a consistent approach throughout the Bill as follows

Clause 172, Page 115, Line 26
Leave out from ‘within’ to the end of line 27 and insert—
‘—

in the case described in paragraph (a), within the period of 4 months from the date on which the application is refused or is refused in part [or such other period as may be prescribed];

in the case described in paragraph (b), within the period of 4 months from the end of the period referred to in that paragraph [or such other period as may be prescribed].’

Clause 173 - Appeals against refusal or failure to give decision on application

645. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 174 - Further provisions as to appeals under section 172

646. At the meeting on 10 February 2011 the Committee was content with the clause subject to a Departmental amendment to reflect changes to enforcement of advertisement control provided by the Clean Neighbourhoods Bill as follows:

Clause 174, Page 116, Line 36
Leave out from ‘that it’ to the end of line 37 and insert ‘either of the matters specified in subsection (4).

(4) The matters are that-

(a) the advertisement was displayed without the person’s knowledge; or

(b) the person took all reasonable steps to prevent the display or, after the advertisement had been displayed, to secure its removal.’

Clause 175 - Enforcement of advertisement control

647. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 176 - Rights to enter without warrant

648. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 177 - Right to enter under warrant

649. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 178 - Rights of entry: supplementary provisions

650. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 179 - Compensation where planning permission is revoked or modified

651. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 180 - Modification of the Act of 1965 in relation to minerals

652. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 181 - Compensation where listed building consent revoked or modified

653. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 182 - Compensation in respect of orders under section 72, 74 or 111

654. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 183 - Compensation in respect of tree preservation orders

655. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 184 - Compensation where hazardous substances consent modified or revoked under section 115

656. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 185 - Compensation for loss due to stop notice

657. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 186 - Compensation for loss or damage caused by service of building preservation notice

658. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 187 - Compensation for loss due to temporary stop notice

659. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 188 - Compensation where planning permission assumed for other development

660. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 189 - Interpretation of Part 6

661. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 190 - Service of purchase notice

662. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 191 - Purchase notices: Crown land

663. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 192 - Action by council following service of purchase notice

664. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 193 - Further ground of objection to purchase notice

665. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 194 - Reference of counter-notices to Lands Tribunal

666. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 195 - Effect of valid purchase notice

667. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 196 - Special provision as to compensation under this Part

668. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 197 - Historic Buildings Council

669. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 198 - Grants and loans for preservation or acquisition of listed buildings

670. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 199 - Acquisition of listed buildings by agreement

671. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 200 - Acceptance by Department of endowments in respect of listed buildings

672. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 201 - Compulsory acquisition of listed buildings

673. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 202 - The Planning Appeals Commission

674. At the meeting on 10 February 2011 the Committee decided to defer a decision on this clause until the meeting on 15 February 2011

675. At the meeting on 15 February 2011 the Committee was content with the Clause as drafted and content with a Departmental amendment introducing new clauses to allow for the awarding of costs by the appeals commission where a party has been put to unnecessary expense as follows:

New clause

After clause 202 insert—

‘Power to award costs

202A.—(1) The appeals commission may make an order as to the costs of the parties to an appeal under any of the provisions of this Act mentioned in subsection (2) and as to the parties by whom the costs are to be paid.

(2) The provisions are—

(a) sections 58, 59, 95, 96, 114, 142, 158, 164 and 172;

(b) sections 95 and 96 (as applied by section 104(6));

(c) in Schedule 2, paragraph 6(11) and (12) and paragraph 11(1);

(d) in Schedule 3, paragraph 9.

(3) An order made under this section shall have effect as if it had been made by the High Court.

(4) Without prejudice to the generality of subsection (2), the Master (Taxing Office) shall have the same powers and duties in relation to an order made under this section as the Master has in relation to an order made by the High Court.

(5) Proceedings before the appeals commission shall, for the purposes of the Litigants in Person (Costs and Expenses) Act 1957 (c. 47), be regarded as proceedings to which section 1(1) of that Act applies.’

New clause

After clause 202 insert—

‘Orders as to costs: supplementary

202B.—(1) This section applies where—

(a) for the purpose of any proceedings under this Act—

(i) the appeals commission is required, before a decision is reached, to give any person an opportunity, or ask any person whether that person wishes, to appear before and be heard by it; and

(ii) arrangements are made for a hearing to be held;

(b) the hearing does not take place; and

(c) if it had taken place, the appeals commission would have had power to make an order under section 202A requiring any party to pay any costs of any other party.

(2) Where this section applies the power to make such an order may be exercised, in relation to costs incurred for the purposes of the hearing, as if the hearing had taken place.’

676. At the meeting on 17 February the Committee was informed of a further Departmental amendment to Clause 202 to make Planning Appeals Commission rules subject to negative resolution and agreed the amendment as follows:

Clause 202, Page 133, Line 32
At end insert—
‘(7A) Rules made under subsection (5) shall be subject to negative resolution.’

Clause 203 - Procedure of appeals commission

677. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 204 - Assessment of council’s performance

678. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 205 - Assessment of council’s decision making

679. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 206 - Further provision as respects assessment of performance or decision making

680. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 207 - Report of assessment

681. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 208 - Application to the Crown

682. At the meeting on 10 February 2011 the Committee was content with the clause subject to a Departmental amendment to ensure a consistent approach throughout the Bill as follows:

Clause 208, Page 137
Leave out line 1

Clause 208, Page 137
Leave out lines 16 and 17

Clause 209 - Urgent Crown development

683. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 210 - Urgent works relating to listed buildings on Crown land

684. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 211 - Enforcement in relation to the Crown

685. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 212 - References to an estate in land

686. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 213 - Applications for planning permission, etc. by Crown

687. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 214 - Service of notices on the Crown

688. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 215 - Correction of errors in decision documents

689. At the meeting on 10 February 2011 the Committee decided to defer a decision on this clause until the meeting on 15 February 2011

690. At the meeting on 15 February 2011 the Committee was content with the Clause as amended by the Department as follows:

Clause 215, Page 140, Line 2
After ‘it’ insert ‘-(a)’

Clause 215, Page 140, Line 2
After ‘(a)’ insert ‘: or
(b)’

Clause 216 - Correction notice

691. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 217 - Effect of correction

692. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 218 – Supplementary

693. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 219 - Fees and charges

694. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 220 - Grants for research and bursaries

695. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 221 - Grants to bodies providing assistance in relation to certain development proposals

696. At the meeting on 10 February 2011 the Committee was content with the Clause as amended by the Department to strengthen the requirement for bodies to receive grants and remove the requirement for DFP to be consulted before awarding grants as follows:

Clause 221, Page 142, Line 41
After ‘understanding’ insert ‘of planning policy proposals and’

Clause 221, Page 142, Line 41
After ‘aspects of’ insert ‘other’

Clause 221, Page 143, Line 8
Leave out from ‘, with’ to ‘Personnel,’ in line 9

Clause 222 - Contributions by councils and statutory undertakers

697. At the meeting on 10 February 2011 the Committee was content with the clause subject to a Departmental amendment to ensure a consistent approach throughout the Bill as follows:

Clause 222, Page 143, Line 17
Leave our ‘(except section 26)’

Clause 222, Page 143, Line 18
Leave out ‘(except sections 103 to 105 and 119)’

Clause 222, Page 143, Line 19
Leave out ‘141,’

Clause 222, Page 143, Line 20
At end insert-
‘(e) Part 7.’

Clause 223 - Contributions by departments towards compensation paid by councils

698. At the meeting on 10 February 2011 the Committee was content with the clause subject to a Departmental amendment to ensure a consistent approach throughout the Bill as follows:

Clause 223, Page 143, Line 42
Leave out from ‘under’ to the end of line 3 on page 144 and insert ‘under Part 3, 4, 5 or 7.’

Clause 224 - Duty to respond to consultation

699. At the meeting on 10 February 2011 the Committee decided to defer a decision on this clause until the meeting on 15 February 2011

700. At the meeting on 15 February 2011 the Committee considered amending this clause to address concerns relating to the duty of statutory consultees to respond to consultation. However on being advised that this concern would be better achieved by the insertion of a new clause after Clause 187, it agreed this clause as drafted but on 22 February acknowledged that it would be content with the clause subject to a Department amendment to ensure a consistent approach throughout the Bill as follows:

Clause 224, Page 144, Line 30
Leave our ‘prescribe’ and insert ‘specify’

Clause 224, Page 144, Line 31
Leave out ‘prescribe’ and insert ‘specify’

701. At the meeting on 15 February 2011 the Committee was content to table a Committee amendment inserting a New Clause after Clause 187 as follows:

New Clause

After Clause 187 insert

‘Compensation: decision taken by council where consultee fails to respond under section 224

At end insert—

‘187A. (1) Where a consultee fails to respond to a council consultation in accordance with section 224(3) and that council:

(a) takes a decision under this Act in the absence of such a response; and

(b) subsequently receives information which the council could reasonably expect to have been included in that response; and

(c) decides to revoke or modify planning permission due to the information referred to in paragraph (b); and

(d) compensation is payable by a council under section 178 in connection with the decision under paragraph (c);

the relevant department shall pay to the council the amount of compensation payable.

(2) For the purposes of subsection (1) “the relevant department" means the department (if any) to which the consultee is accountable.’

Clause 225 – Minerals

702. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 226 - Local inquiries

703. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

704. At the meeting on 17 February the Committee was informed that the Minister had yet to make a decision on whether to make an amendment to the Clause to make local inquiries subject to negative resolution.

Clause 227 - Inquiries to be held in public subject to certain exceptions

705. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 228 - Directions: Secretary of State

706. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 229 - Directions: Department of Justice

707. At the meeting on 10 February 2011 the Committee decided to defer a decision on this clause until the meeting on 15 February 2011

708. At the meeting on 15 February 2011 the Committee was content with the Clause as amended by the Department to replace reference to the Advocate General with the Attorney General as follows:

Clause 229, Page 147, Line 14
Leave out ‘Advocate General’ and insert ‘Attorney General’

Clause 229, Page 147, Line 18
Leave out ‘Advocate General’ and insert ‘Attorney General’

Clause 230 - National security

709. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 231 - Rights of entry

710. At the meeting on 10 February 2011 the Committee was content with the clause subject to a Departmental amendment to ensure a consistent approach throughout the Bill as follows:

Clause 231, Page 149, Line 15
Leave out ‘, adoption or approval’ and insert ‘or adoption’

Clause 231, Page 149, Line 35
Leave out ‘, adoption’

Clause 231, Page 150, Line 15
After ‘Environment’ insert ‘or a council’

Clause 231, Page 150, Line 20
Leave out from ‘section’ to the end of line 21 and insert ‘any of sections 180 to 186’

Clause 232 - Supplementary provisions as to powers of entry

711. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 233 - Supplementary provisions as to powers of entry: Crown land

712. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 234 - Service of notices and documents

713. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 235 - Information as to estates in land.

714. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 236 - Information as to estates in Crown land

715. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 237 - Planning register

716. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 238 - Power to appoint advisory bodies or committees

717. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 239 - Time limit for certain summary offences under this Act

718. At the meeting on 10 February 2011 the Committee was content with the clause subject to a Departmental amendment to ensure a consistent approach throughout the Bill as follows:

Clause 239, Page 155, Line 14
Leave out ‘125(1) or’

Clause 240 - Registration of matters in Statutory Charges Register

719. At the meeting on 10 February 2011 the Committee was content with the clause subject to a Departmental amendment to ensure a consistent approach throughout the Bill as follows:

Clause 240, Page 155, Line 21
At end insert—
( ) planning agreements under section 75;’

Clause 241 – Directions

720. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 242 - Regulations and orders

721. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 243 – Interpretation

722. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 244 - Further provision

723. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 245 - Minor and consequential amendments

724. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 246 – Repeals

725. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Clause 247 – Commencement

726. At the meeting on 10 February 2011 the Committee was content with the Clause as subject to a draft Committee amendment as follows:

Clause 247, page 160, line 16
At end insert—

( ) No order shall be made under subsection (1) in respect of Part 3 unless a draft of the order has been laid before, and approved by a resolution of, the Assembly.

Clause 248 - Short title

727. At the meeting on 10 February 2011 the Committee was content with the Clause as drafted.

Schedule 1 - Simplified planning zones

728. At the meeting on 10 February 2011 the Committee was content with the Schedule as drafted.

Schedule 2 - Review of old mineral planning permission

729. At the meeting on 10 February 2011 the Committee was content with the Schedule as drafted.

730. At the meeting on 15 February the Departmental officials presented the Committee with an amendment to Schedule 2 and the Committee was content with Schedule 2 as amended by the Department as follows:

Schedule 2, Page 164, Line 33
Leave out from ‘in’ to the end of line 34 and insert ‘within the period of 15 years ending on the date on which this Schedule comes into operation.’

Schedule 3 - Periodic review of mineral planning permissions

731. At the meeting on 10 February 2011 the Committee was content with the Schedule as drafted.

Schedule 4 - Amendments to the Land Development Values (Compensation) Act (Northern Ireland) 1965 (c. 23)

732. At the meeting on 10 February 2011 the Committee was content with the Schedule as drafted.

Schedule 5 - The Historic Buildings Council

733. At the meeting on 10 February 2011 the Committee was content with the Schedule as drafted.

Schedule 6 - Minor and consequential amendments

734. At the meeting on 10 February 2011 the Committee was content with the Schedule as drafted.

Schedule 7 – Repeals

735. At the meeting on 10 February 2011 the Committee was content with the Schedule as drafted.

Appendix 1

Minutes of Proceedings 

Thursday 25 November 2010,
Room 144, Parliament Buildings

Present: Mr Cathal Boylan (Chairperson)
Mr Thomas Buchanan
Mr Willie Clarke
Mr John Dallat
Mr Danny Kinahan
Mr Patsy McGlone
Mr Peter Weir
Mr Brian Wilson

In Attendance: Dr Alex McGarel (Assembly Clerk)
Mr Sean McCann (Assistant Clerk)
Mr Nathan McVeigh (Clerical Supervisor)
Ms Antoinette Bowen (Clerical Officer)

Apologies: Mr Alastair Ross

12. Departmental briefing on the Planning Bill

Departmental officials briefed the Committee and answered members’ questions on the Planning Bill.

Agreed: That the Department provides the Committee with a timetable for the Bill.

Cathal Boylan

Chairperson, Committee for the Environment
02 December 2010

[EXTRACT]

Thursday 13 January 2011,
Room 144, Parliament Buildings

Present: Mr Cathal Boylan (Chairperson)
Mr Thomas Buchanan
Mr Willie Clarke
Mr John Dallat
Mr Danny Kinahan
Mr Patsy McGlone
Mr Alastair Ross
George Savage
Mr Peter Weir
Mr Brian Wilson

In Attendance: Dr Alex McGarel (Assembly Clerk)
Mr Sean McCann (Assistant Clerk)
Mr Nathan McVeigh (Clerical Supervisor)
Ms Antoinette Bowen (Clerical Officer)

6. Assembly Research briefing on Planning Bill – Parts 1 and 2 – Planning Functions and Local Development Plans

The Chairperson informed members that they had been provided with a Bill timeline, a letter from Craigavon Borough Council about the timing of the Bill and a list of organisations who have asked for an extension to the deadline for submissions.

Agreed: That members are content with the proposed timeline for the Committee stage of the Bill including a stakeholder event.

The Chairperson informed members that, due to time pressures, the Committee would consider the remaining items of business before recommencing the meeting after lunch in Room 21.

1.32p.m The Chairperson suspended the meeting.

2.02p.m The meeting restarted in Room 21 in public session. with the following members present:

Mr Boylan
Mr Willie Clarke
Mr Kinahan
Mr Savage
Mr Weir
Mr Wilson

12. Assembly Research briefing on Planning Bill – Parts 1 and 2 – Planning Functions and Local Development Plans

Assembly Research briefed the Committee and answered members’ questions on Planning Bill – Parts 1 and 2 – Planning Functions and Local Development Plans.

2.10p.m Mr Weir left the meeting.

2.25p.m Mr McGlone rejoined the meeting.

2.25p.m Mr Kinahan left the meeting.

The main areas of discussions were spatial planning, independent examination of local development plans, training and guidance and the rollout of subordinate legislation.

12. Departmental briefing on Planning Bill – Parts 1 and 2 – Planning Functions and Local Development Plans

Departmental officials briefed the Committee and answered member’s questions on Planning Bill – Parts 1 and 2 – Planning Functions and Local Development Plans.

2.55p.m Mr Clarke left the meeting.

2.57p.m Mr Savage left the meeting.

The main areas of discussions were Local Development Plans, the timeframe for the reform of local government, training and guidance.

3.01p.m The Chairperson adjourned the meeting.

Cathal Boylan

Chairperson, Committee for the Environment

20 January 2011

[EXTRACT]

Tuesday 18 January 2011,
Senate Chamber, Parliament Buildings

Present: Mr Cathal Boylan (Chairperson)
Mr Thomas Buchanan
Mr Willie Clarke
Mr John Dallat
Mr Danny Kinahan
Mr Patsy McGlone
Mr Alastair Ross
Mr Peter Weir
Mr Brian Wilson

In Attendance: Dr Alex McGarel (Assembly Clerk)
Mr Sean McCann (Assistant Clerk)
Mr Nathan McVeigh (Clerical Supervisor)
Ms Antoinette Bowen (Clerical Officer)

2. Planning Bill submissions

10.13 am Mr Ross joined the meeting.

The Chairperson informed members that they had been provided with copies of submissions received to date.

Agreed: That the following organisations are invited to present oral evidence:

  • NILGA
  • RTPI
  • RICS
  • Planning Appeals Commission
  • Belfast Harbour
  • Utility Regulator
  • Professor Greg Lloyd
  • NI Housing Executive
  • Consumer Council
  • Community Places
  • Ministerial Advisory Group
  • Planning Task Force
  • QPANI

3. Assembly Research briefing on Planning Bill – Development Management, Planning Control and Enforcement

10.20 am Mr Dallat joined the meeting.

Assembly Research officials briefed the Committee and answered members’ questions on the Planning Bill - Development Management, Planning Control and Enforcement.

10.37 am Mr Willie Clarke left the meeting.

The main areas of discussion were appeals, performance agreements, the role of the Planning Appeals Commission, the hierarchy of planning, award of costs, the Department’s role and pre determination hearings.

Agreed: That copies of the Assembly Research papers are forwarded to the Department for comment and that the papers are published on the Assembly website.

3. Departmental briefing on Planning Bill – Development Management, Planning Control and Enforcement

11.25 am Mr Willie Clarke rejoined the meeting.

Departmental officials briefed the Committee and answered member’s questions on the Planning Bill – Development Management, Planning Control and Enforcement.

Agreed: That Departmental officials provide the Committee with the equality assessment carried out on the Bill.

The main areas of discussions were independent examination, statements of community involvement, the rights of objectors, responsibility for enforcement, tree protections orders and guidance.

11.47 am Mr Kinahan joined the meeting.

12.35 pm The Chairperson suspended the meeting for lunch.

1.38 pm The meeting resumed with the following members present:

Mr Boylan, Mr Willie Clarke, Mr Wilson, Mr Wilson, Mr Ross.

4. Assembly Research briefing on Planning Bill – Community Involvement

Assembly Research officials briefed the Committee and answered members’ questions on the Planning Bill – community involvement.

1.57 pm Mr Ross left the meeting.

The main areas of discussions were pre application consultation, pre determination hearings, public inquiries, award of costs, third party appeals, community benefits, statements of community involvement and neighbourhood development plans.

2.14 pm Mr Kinahan rejoined the meeting.

5. Departmental briefing on Planning Bill – Community Involvement

Departmental officials briefed the Committee and answered member’s questions on the Planning Bill – community involvement.

The Departmental officials informed the Committee that an amendment to the Bill in relation to costs awards would be brought forward at a later meeting.

2.45 pm Mr Willie Clarke left the meeting.

The main areas of discussions were third party appeals, the cost neutrality of the Bill, resources, neighbor notification, subordinate legislation to follow from implementation of the Bill, statements of community involvement, developer contributions, pre determination hearings, monitoring of local development plans and community benefit.

Cathal Boylan
Chairperson, Committee for the Environment
20 January 2011

[EXTRACT]

Thursday 20 January 2011,
Room 144, Parliament Buildings

Present: Mr Cathal Boylan (Chairperson)
Mr Thomas Buchanan
Mr Willie Clarke
Mr Danny Kinahan
Mr Patsy McGlone
Mr Alastair Ross
Mr Peter Weir
Mr Brian Wilson

In Attendance: Dr Alex McGarel (Assembly Clerk)
Mr Sean McCann (Assistant Clerk)
Mr Nathan McVeigh (Clerical Supervisor)
Ms Antoinette Bowen (Clerical Officer)

Apologies: Mr Trevor Clarke
Mr John Dallat
Mr George Savage

4. Assembly Research briefing on Planning Bill – Assessment of Councils’ Performance and all remaining provisions

Assembly Research officials briefed the Committee and answered members’ questions on the Planning Bill - Assessment of Councils’ Performance and all remaining provisions.

The main areas of discussions were the need for leadership, roles and responsibilities, potential barriers to effective delivery, capacity building, guidance, experiences in other jurisdictions, training and resources.

Agreed: That Assembly Research provides the Committee with further information on the power of wellbeing and strategic partnership and examples of how transparency and collaborative working between councils have worked in other jurisdictions.

Agreed: That the research paper is placed on the Assembly website.

5. Departmental briefing on Planning Bill – Assessment of Councils’ Performance and all remaining provisions

Departmental officials briefed the Committee and answered members’ questions on the Planning Bill – community involvement.

11.50 am Mr Boylan left the meeting and Mr McGlone assumed the Chair

The main areas of discussions were resources, the quality of the built environment, sustainable development, the timeframe for detailed guidance, the Department’s oversight role, compensation, pilot schemes and best practice from other jurisdictions.

12.20 pm Mr Boylan rejoined the meeting and resumed the Chair.

Agreed: That the Department provides the Committee with a briefing paper on sustainable development within the Planning Bill.

Cathal Boylan
Chairperson, Committee for the Environment
27 January 2011

[EXTRACT]

Wednesday 26 January 2011,
Room 29, Parliament Buildings

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

In Attendance: Dr Alex McGarel (Assembly Clerk)
Mr Sean McCann (Assistant Clerk)
Mr Nathan McVeigh (Clerical Supervisor)
Ms Antoinette Bowen (Clerical Officer)

Apologies: Mr Thomas Buchanan
Mr John Dallat
Mr Patsy McGlone
Mr Peter Weir

3. Planning Bill submissions

The Chairperson informed members that they had been provided with further submissions on the Planning Bill.

Agreed: That the submissions are incorporated into the final Committee report and published on the Assembly website.

The Chairperson informed members that they had been provided with a letter from Jean Forbes in relation to the Planning Bill Stakeholder Event.

Agreed: That a letter is issued to Ms Forbes to explain that, due to the timeframe of the Bill, it was impossible to invite everyone that responded to the Committee’s call for evidence to present oral evidence to members and that the Stakeholder Event was an opportunity for individuals to present their views.

4. Planning Bill Oral Evidence Session – NILGA

NILGA officials briefed the Committee and answered members’ questions on their submission to the Committee’s call for evidence on the Planning Bill.

11.00 am Mr Ross joined the meeting.

Mr Savage declared an interest as a member of NILGA and Craigavon Borough Council.

Mr Willie Clarke declared an interest as a member of Down District Council

The main areas of discussion were training, resources, capacity building, communication with the Department, governance arrangements, pilot projects, the hierarchy of planning, enforcement, costs, liability, funding, third party right of appeal and community planning.

5. Planning Bill Oral Evidence Session – NI Housing Executive

11.35 am Mr Trevor Clarke joined the meeting.

NI Housing Executive officials briefed the Committee and answered members’ questions on their submission to the Committee’s call for evidence on the Planning Bill.

11.45 am Mr Wilson left the meeting.

The main areas of discussion were the Regional Development Strategy, third party right of appeal, developer contributions, joint council working, the duration of planning permission, pre application discussions, performance agreements and zoning of land for social housing.

12.04 pm Mr Kinahan left the meeting.

Agreed: That an Assembly Research paper is requested on the zoning of social housing in other jurisdictions.

6. Planning Bill Oral Evidence Session – Planning Appeals Commission

Planning Appeals Commission officials briefed the Committee and answered members’ questions on their submission to the Committee’s call for evidence on the Planning Bill.

The main areas of discussion were independent examination, the Department’s call in power, submission notices, planning agreements and award of costs.

12.20 pm Mr Savage left the meeting.

7. Planning Bill Oral Evidence Session – QPANI

QPANI officials briefed the Committee and answered members’ questions on their submission to the Committee’s call for evidence on the Planning Bill.

The main areas of discussion were sustainable development, mineral planning, definition of community, nature conservation, multiple fees, consultation period and aftercare of sites.

1.00 pm The Chairperson suspended the meeting for lunch.

1.45 pm The meeting re-started with the following members present:

Mr Boylan, Mr Trevor Clarke, Mr Willie Clarke, Mr Wilson, Mr Kinahan

8. Planning Bill Oral Evidence Session – Royal Town Planning Institute

Royal Town Planning Institute officials briefed the Committee and answered members’ questions on their submission to the Committee’s call for evidence on the Planning Bill.

The main areas of discussion were the timescale for the Bill, resources, training, plan led systems, definition of community, the Regional Development Strategy, the Department’s role in the Bill, independent examination, pilot schemes, development management and area plans.

2.00 pm Mr Kinahan left the meeting.

Agreed: That RTPI provides the Committee with a copy of the Planning Advisory Service report on fees.

10. Planning Bill Oral Evidence Session – Royal Institute of Chartered Surveyors

Royal Institute of Chartered Surveyors officials briefed the Committee and answered members’ questions on their submission to the Committee’s call for evidence on the Planning Bill.

The main areas of discussion were training, resources, planning hierarchy, the Department’s role, community plans, capacity building, resources and appeals.

Cathal Boylan
Chairperson, Committee for the Environment
27 January 2011

[EXTRACT]

Thursday 27 January 2011,
Room 144, Parliament Buildings

Present: Mr Cathal Boylan (Chairperson)
Mr Trevor Clarke
Mr Danny Kinahan
Mr Patsy McGlone
Mr Alastair Ross
Mr Peter Weir
Mr Brian Wilson

In Attendance: Dr Alex McGarel (Assembly Clerk)
Mr Sean McCann (Assistant Clerk)
Mr Nathan McVeigh (Clerical Supervisor)
Ms Antoinette Bowen (Clerical Officer)

Apologies: Mr Thomas Buchanan
Mr Willie Clarke
Mr John Dallat
Mr George Savage

2. Planning Bill Oral Evidence Session – Planning Task Force

The Planning Task Force briefed the Committee and answered members’ questions on their submission to the Committee’s call for evidence on the Planning Bill.

The main areas of discussion were award of costs, community plans, third party rights of appeal, subordinate legislation, sustainable development, community infrastructure levy and the need for a climate change duty.

10.25a.m Mr Trevor Clarke joined the meeting.

Agreed: That the Planning Task Force provides the Committee with details of how a community infrastructure levy operates in England.

Agreed: That the Department provides the Committee with the timescales for the delivery of sustainability across Departments.

The Chairperson informed members that they had been provided with a draft motion to extend Committee Stage of the Planning Bill to 1 March 2011.

Agreed: That the motion is lodged with the Business Office.

5. Planning Bill Oral Evidence Session – Consumer Council

A Consumer Council official briefed the Committee and answered members’ questions on their submission to the Committee’s call for evidence on the Planning Bill.

The main areas of discussion were the Regional Development Strategy, community consultation, the need for guidance, the performance of councils, and third party rights of appeal.

Agreed: That the Department provides the Committee with a list of statutory consultees.

10.58a.m Mr Ross joined the meeting.

6. Planning Bill Oral Evidence Session – Community Places

Community Places representatives briefed the Committee and answered members’ questions on their submission to the Committee’s call for evidence on the Planning Bill.

11.20a.m Mr Weir joined the meeting.

The main areas of discussion were pre application community consultation, the need for guidance, statements of community involvement, the need for a statutory link between community planning and the local development plan, community investment levy, grant aid, independent examination, fees, developer contributions and third party rights of appeal.

11.35a.m Mr Trevor Clarke left the meeting.

11. Planning Bill Oral Evidence Session – Ministerial Advisory Group

An official from the Ministerial Advisory Group briefed the Committee and answered members’ questions on their submission to the Committee’s call for evidence on the Planning Bill.

The main areas of discussion were community involvement, community networks, pre application community consultation, local masterplanning, capacity building, statements of community involvement, business improvement districts, simplified planning zones and areas of townscape character.

Agreed: That the Ministerial Advisory Group provides the Committee with further information on simplified planning zones and business improvement districts.

12.02p.m Mr McGlone returned to the meeting.

12.05p.m Mr Kinahan left the meeting.

12. Planning Bill Oral Evidence Session – Professor Greg Lloyd

Professor Greg Lloyd briefed the Committee and answered members’ questions on their submission to the Committee’s call for evidence on the Planning Bill.

The main areas of discussion were the Scottish planning model, the Regional Development Strategy, the Department’s role in the Bill, the role of developers, the need to invest and resource the planning system, community aspirations, joint working between departments, the hierarchy of planning, simplified planning zones, cost neutrality and the definition of community.

Cathal Boylan
Chairperson, Committee for the Environment
3 February 2011

[EXTRACT]

Tuesday 1 February 2011,
Senate Chamber, Parliament Buildings

Present: Mr Cathal Boylan (Chairperson)
Mr Thomas Buchanan
Mr Willie Clarke
Mr John Dallat
Mr Danny Kinahan
Mr Patsy McGlone
Mr Alastair Ross
Mr George Savage
Mr Peter Weir
Mr Brian Wilson

In Attendance: Dr Alex McGarel (Assembly Clerk)
Mr Sean McCann (Assistant Clerk)
Mr Nathan McVeigh (Clerical Supervisor)
Ms Antoinette Bowen (Clerical Officer)

1. Apologies

There were no apologies.

2. Planning Bill – informal clause by clause consideration – Parts 1 - 4

The Committee commenced informal clause by clause consideration of the Planning Bill with discussion on Clauses 1 – 16.

10.12 a.m Mr Wilson joined the meeting.

10.16a.m Mr Kinahan joined the meeting.

Agreed: That the Department considers an amendment to Clause 1 to strengthen the wording on sustainable development.

Agreed: That a recommendation is made in the Committee report that the power of wellbeing is included in future local government legislation.

10.29a.m Mr Ross left the meeting.

10.36a.m Mr Dallat joined the meeting.

The Chairperson informed members they had been provided with a Departmental reply to Assembly Research papers on parts 2 and 3 of the Bill.

Agreed: That the response is incorporated into the final Committee report.

The Chairperson informed members they had been provided with an equality impact assessment and human rights assessment of the planning reform process.

Agreed: That the Committee receives a briefing on equality impact and human rights assessments on the Bill.

10.48a.m Mr Weir joined the meeting.

10.50a.m Mr Savage joined the meeting.

The Chairperson informed members they had been provided with a paper from the Examiner of Statutory Rules on the delegated powers of the Bill, a further Assembly Research paper, a paper from the NI Federation of Housing Associations on developer contributions, a Ministerial Advisory Group paper on simplified planning zones and supplementary papers from Community Places and RSPB following their oral evidence sessions on the Bill.

Agreed: That the papers are incorporated into the final Committee report.

Agreed: That the Department changes the reference on sustainable development in Clause 1(2) from ‘contributing to’ to ‘securing’.

11.27a.m Mr Buchanan joined the meeting.

The main areas of discussion were the criteria for sustainability, land use and spatial planning, wellbeing, the need for guidance, equality, joint council plans, resources, definition of community, neighbour notification, climate change, balanced communities, costs, fees, subordinate legislation, local policy plans, independent examination, the need for a review period and the Department’s power of intervention.

Agreed: That the Minister would write to the Committee in relation to the inclusion of a statutory link between local development plans and community strategies in Clause 2.

Agreed: That the Committee accepted on Clause 2 that, in the absence of a date for its implementation precise dates would be best avoided on the face of the Bill. the Committee requested that a time limitation linked to commencement of the Bill is included in Clause 2(1) for the Department’s to publish a statement of community involvement.

Agreed: That the Department considers incorporating climate change into Clause 3 of the Bill.

11.37a.m Mr Willie Clarke left the meeting.

Agreed: That the Department reports back to the Committee on neighbour notification in relation to Clause 4 and provides the Committee with examples of community involvement from other jurisdictions.

Agreed: That the Department provides the Committee with an example of a statement of community involvement from another jurisdiction.

11.47a.m Mr Ross rejoined the meeting.

Agreed: That the Department provides the Committee with details of the subordinate legislation that will follow from Clause 8 and provides members with an amendment to Clause 8(5)

Agreed: That the Department reports back to the Committee on consultation with the Planning Appeals Commission in relation to its role in Clause 16.

12.30p.m Mr Ross left the meeting.

12.33p.m The Chairperson suspended the meeting for lunch.

1.37p.m The meeting resumed with the following members present: Mr Boylan, Mr Kinahan, Mr Wilson, Mr Buchanan.

3. Planning Bill – informal clause by clause consideration – Parts 1 - 4

The Committee continued informal clause by clause consideration of the Planning Bill with discussion on Clauses 17 – 129.

1.58p.m Mr Weir rejoined the meeting.

2.03p.m Mr McGlone rejoined the meeting.

2.13p.m Mr Willie Clarke rejoined the meeting.

Mr Willie Clarke declared an interest as a member of Down District Council.

Mr Kinahan declared an interest as an owner of a Grade A listed building.

The main areas of discussion were areas of townscape character, simplified planning zones, subordinate legislation, guidance, the definition of regional significance, permitted development rights for minerals, local development plans, the Department’s reserved powers in the Bill

Agreed: That the Department provides the Committee with examples of monitoring reports in relation to Clause 21.

Agreed: That the Department reports back to the Committee with details of discussions with DSO regarding the wording of Clause 25. Officials also agreed to consider the inclusion of criteria for determining regional significance in subordinate legislation and ways in which cumulative impact will be taken into consideration for regionally significant developments.

Agreed: That, in relation to Clause 25, the Department considers the possibility of changing the wording form ‘community consultation’ to ‘community participation’ and to report back to the Committee with a definition of ‘consultation’ and ‘community’.

Agreed: That the Department provides the Committee with an example of a scheme of delegation.

Agreed: That the Department considers an amendment to Clause 53 to include landfill and to report back to the Committee on how aftercare conditions will be delivered in the event of insolvency.

Agreed: That the provides the Committee with further clarification on Clause 75 in relation to a Community Infrastructure Levy and how it would work in practice.

2.42p.m Mr McGlone left the meeting.

2.50p.m Mr Willie Clarke left the meeting.

3.12p.m The Chairperson suspended the meeting due to loss of quorum.

The meeting resumed at 3.30p.m with the following members present: Mr Boylan, Mr Buchanan, Mr Weir, Mr Wilson, Mr Kinahan.

Agreed: That the Department reports back to the Committee on the need in Clause 97 for, and provision of, arbitration in relation to listed buildings and conservation.

3.38p.m The Chairperson suspended the meeting due to a division in Plenary.

3.55p.m The meeting resumed with the following members present: Mr Boylan, Mr Weir, Mr Wilson, Mr Kinahan.

4.02p.m Mr McGlone rejoined the meeting.

Agreed: That the Department reports back to the Committee on the possibility of criminalisation being included in Clause 116.

Agreed: That the Department reports back to the Committee with further thoughts on the issues raised by the submissions on Clause 121, particularly the approach to dead or dying trees. Members also requested that the Department reports back on the need for arbitration on this issue.

Agreed: That the Department considers the possibility of codifying the two offences in Clause 125 in a way that would retain the flexibility but make the law applying to trees stronger.

Agreed: That the Department reports back to the Committee on the need for centralised expertise in this area in Clause 128 as there was a feeling that the expertise is not required on a frequent basis and may be costly for councils.

Agreed: That the Department will consider the points made in submissions to the Committee in relation to Clause 121 and report back to the Committee.

Agreed: That the Department will speak to its legal advisors in relation to Clause 125 and report back to the Committee.

Cathal Boylan
Chairperson, Committee for the Environment
3 February 2011

[EXTRACT]

Thursday 3 February 2011,
Room 144, Parliament Buildings

Present: Mr Cathal Boylan (Chairperson)
Mr Thomas Buchanan
Mr Trevor Clarke
Mr John Dallat
Mr Danny Kinahan
Mr Patsy McGlone
Mr Peter Weir
Mr Brian Wilson

In Attendance: Dr Alex McGarel (Assembly Clerk)
Mr Sean McCann (Assistant Clerk)
Mr Nathan McVeigh (Clerical Supervisor)
Ms Antoinette Bowen (Clerical Officer)
Ms Sian Woodward (Bill Office Clerk)

Apologies: Mr Alastair Ross
Mr George Savage

4. Planning Bill – Informal clause by clause consideration – Parts 5 - 15

The Committee continued informal clause by clause consideration of the Planning Bill – Parts 5 – 15.

The main areas of discussion were guidance, enforcement, resources, level of fines, fixed penalty notices, stop notices, the Department’s oversight role, compensation, liability arrangements, historic buildings and listed buildings.

The Chairperson informed members that, due to time constraints, it would be necessary to suspend informal clause by clause consideration until later in the meeting.

10.48a.m Mr McGlone left the meeting.

Agreed: That the Department provides the Committee with details on enforcement practices to date including the number of staff transferred from Planning Service to the enforcement section and a response on how the issue of legal costs influences decisions on enforcement action. Members also requested figures on the number of enforcement cases that have arisen and how many of these the Department has considered ‘expedient’ to pursue.

11.00a.m Mr Kinahan left the meeting.

11.06a.m Mr Weir left the meeting.

11.14a.m Mr Dallat left the meeting.

Agreed: That the Departmental officials consider the issue of reducing the timescale for change of use from 10 years to 4 years.

11.15a.m Mr McGlone rejoined the meeting.

11.15a.m Mr Wilson left the meeting.

11.20a.m Mr Dallat rejoined the meeting.

Agreed: That the Departmental officials consider an amendment to raise the level of fine in Clause 133(4) from level 3 to level 5.

Agreed: That the Departmental officials provide further information on the number of stop notices that have been issued with an indication of how many of these were temporary stop notices that were followed by final notices. The Committee also requested a response to the concerns raised by the South Belfast Resident’s group and how they may be addressed in the Planning Bill.

11.25a.m Mr McGlone left the meeting.

Agreed: That The Departmental officials consider an amendment to raise the level of fine referred to in 148(5).

11.35a.m Mr McGlone rejoined the meeting.

11.35a.m Mr Weir rejoined the meeting.

Agreed: That the Departmental officials provide further clarification on ownership in relation to this clause and also any legal implications that may be associated with urgent works to preserve building.

Agreed: That the Departmental officials agreed to provide information on the total number of applications that have been revoked and the amount of compensation paid. Officials also agreed to look at a possible amendment to require the Department to pay any compensation due where it overrides a council decision not to revoke of modify planning permission.

12.12p.m Mr Kinahan rejoined the meeting.

12.30p.m Mr Wilson rejoined the meeting.

Agreed: That the Departmental officials provide information on the current system for dealing with listed/historic buildings.

12.51p.m Mr McGlone left the meeting.

Agreed: That the Departmental officials provide clarification on whether councils will be charged for technical expertise services provided by NIEA, and/or any statutory body or agency. The Committee also reuqested information on who would be responsible for a national register of trees.

Agreed: That the Departmental officials liaise with OFMDFM to consider an amendment to stop the practice of new information being presented at appeals.

1.00p.m Mr Trevor Clarke left the meeting.

7. Planning Bill – Informal clause by clause consideration – Parts 5 – 15 cont

The Committee continued informal clause by clause consideration of the Planning Bill.

The main areas of discussion were the potential for councils to set planning fees in the future, pre application community consultation, third party appeals, PPS1, developer contributions, community investment levy, spatial planning, award of costs, simplified planning zones, statutory consultation and public inquiries.

Agreed: That the Departmental officials contact DFP to discuss the possibility of removing its oversight role under this Clause and officials agreed to consider the following amendment to strengthen the clause:

221(1)(a)

Insert after ‘understanding’ the words ‘of planning policy proposals and’

Agreed: That the Departmental officials report back to the Committee on the compatibility of council and Departmental IT systems.

3.10p.m Mr Weir left the meeting.

Agreed: That the Departmental officials report back to the Committee on discussions with the Office of Legislative Council in relation to the commencement of the Bill being linked to local government reform.

3.20p.m Mr McGlone left the meeting.

Agreed: That the Departmental officials consider an amendment in relation to award of costs and also to consider an amendment that would require a review of the implementation of the Bill after a set period such as 2 years.

Agreed: That the Departmental officials consider an amendment to strengthen clause 1(1) by extending the purpose of the Department beyond ‘securing orderly and consistent development’.

Cathal Boylan
Chairperson, Committee for the Environment
10 February 2011

[EXTRACT]

Tuesday 8 February 2011,
Senate Chamber, Parliament Buildings

Present: Mr Cathal Boylan (Chairperson)
Mr Thomas Buchanan
Mr Trevor Clarke
Mr Willie Clarke
Mr John Dallat
Mr Danny Kinahan
Mr Patsy McGlone
Mr Alastair Ross
Mr Peter Weir
Mr Brian Wilson

In Attendance: Dr Alex McGarel (Assembly Clerk)
Mr Sean McCann (Assistant Clerk)
Mr Nathan McVeigh (Clerical Supervisor)
Ms Antoinette Bowen (Clerical Officer)
Ms Sian Woodward (Bill Office Clerk)
Ms Eilis Haughey (Bill Office Clerk)
Mr Michael Potter (Assembly Research)

4. Assembly Research briefing on equality measures in the Planning Bill

10.30am Mr Dallat joined the meeting

An Assembly Research official briefed the Committee and answered members’ questions on the equality measures in the Planning Bill.

5. Planning Bill – Formal clause by clause consideration

Agreed: That an Assembly Research paper is requested on how vulnerable groups are represented in community planning in other UK jurisdictions.

Agreed: That the Committee requests that length of tenure is included in the review of the Historic Buildings Council.

11.12am Mr Kinahan joined the meeting.

11.15am Mr Trevor Clarke joined the meeting.

11.17am Mr Weir joined the meeting.

The Committee commenced formal clause by clause consideration of the Planning Bill.

Clause 1 - General functions of Department with respect to development of land

Agreed: That the Department considers the possibility of including ‘wellbeing’ at Clause 1 (4)(A).

11.33am Mr Weir left the meeting.

Clause 2 - Preparation of statement of community involvement by Department

Agreed: That the Committee is content with Clause 2 as amended by the Department to produce and publish its statement of community involvement within one year of the section coming into operation.

Clause 3 - Survey of district

11.37am Mr Weir rejoined the meeting.

11.37am Mr Wilson left the meeting.

Agreed: That a draft Committee amendment to Clause 3 is brought back for further consideration.

11.46am Mr Ross joined the meeting.

Clause 4 - Statement of community involvement

Agreed: That the Committee is content with Clause 4 as drafted.

Clause 5 - Sustainable development

Agreed: That a decision on Clause 5 is deferred until the Committee makes a decision on the obligation to sustainable development in Clause 1.

Clause 6 - Local development plan

Agreed: That the Committee is content with Clause 6 as drafted.

Clause 7 - Preparation of timetable

12.06pm Mr Willie Clarke left the meeting.

Agreed: That the Committee is content with Clause 7 as drafted.

Clause 8 - Plan strategy

Agreed: That the Committee is content with Clause 6 as drafted.

Clause 9 - Local policies plan

Agreed: That the Committee is content with Clause 6 as drafted.

12.11pm Mr Willie Clarke rejoined the meeting.

12.15pm Mr Dallat left the meeting.

Agreed: That the Committee is content with Clause 9 as drafted.

Clause 10 - Independent examination

Agreed: That a decision on Clause 10 is deferred until The Departmental officials report back on who will pay the costs if an independent examiner is appointed.

12.30pm Mr Kinahan left the meeting.

12.33pm The Chairperson suspended the meeting. for lunch.

1.45pm The meeting resumed. with the following members present: Mr Buchanan, Mr Boylan, Mr Wilson, Mr Trevor Clarke, Mr Weir.

Clause 11 - Withdrawal of development plan documents

Agreed: That the Committee is content with Clause 11 as drafted.

Clause 12 – Adoption

Agreed: That the Committee is content with Clause 12 as drafted.

Clause 13 - Review of local development plan

Agreed: That the Committee is content with Clause 13 as drafted.

Clause 14 - Revision of plan strategy or local policies plan

Agreed: That the Committee is content with Clause 14 as drafted.

Clause 15 - Intervention by Department

Agreed: That the Committee is content with Clause 15 as drafted.

Clause 16 - Department’s default powers

Agreed: That the Committee is content with Clause 16 as drafted.

Clause 17 - Joint plans

Agreed: That the Committee is content with Clause 17 as drafted.

Clause 18 - Power of Department to direct councils to prepare joint plans

Agreed: That the Committee is content with Clause 18 as drafted.

Clause 19 - Exclusion of certain representations

Agreed: That the Committee is content with Clause 19 as drafted.

Clause 20 – Guidance

Agreed: That the Committee is content with Clause 20 as drafted.

Clause 21 - Annual monitoring report

Agreed: That the Committee is content with Clause 21 as drafted.

Clause 22 – Regulations

Agreed: That the Committee is content with Clause 22 as drafted.

Clause 23 - Meaning of “development"

Agreed: That the Committee is content with Clause 23 as drafted.

Clause 24 - Development requiring planning permission

Agreed: That the Committee is content with Clause 24 as drafted.

Clause 25 - Hierarchy of developments

Agreed: That the Committee is content with Clause 25 as drafted.

Clause 26 - Department’s jurisdiction in relation to developments of regional significance

Agreed: That the Committee is content with Clause 26 as drafted.

Clause 27 - Pre-application community consultation

Agreed: That the Committee is content with Clause 27 as drafted.

2.09pm Mr Willie Clarke rejoined the meeting.

Clause 28 - Pre-application community consultation report

Agreed: That the Committee is content with Clause 28 as drafted.

2.12pm Mr Weir left the meeting.

Clause 29 - Call in of applications, etc., to Department

Agreed: That the Committee is content with Clause 29 as drafted.

Clause 30 - Pre-determination hearings

Agreed: That the Committee is content with Clause 30 as drafted.

2.15pm Mr McGlone rejoined the meeting.

The Bill Office Clerk briefed members on the Committee’s draft amendment to Clause 247 of the Bill.

2.17pm Mr Weir rejoined the meeting.

Agreed: That the Bill Office explores the drafting of a Committee amendment to make certain sets of regulations within the Planning Bill subject to draft affirmative resolution.

Clause 31 - Local developments: schemes of delegation

Agreed: That the Committee is content with Clause 31 as drafted.

Clause 32 - Development orders

Agreed: That the Committee is content with Clause 32 as drafted.

Clauses 33 – 38 - Simplified planning zones; Making and alteration of simplified planning zone schemes; Simplified planning zone schemes: conditions and limitations on planning permission; Duration of simplified planning zone scheme; Alteration of simplified planning zone scheme; Exclusion of certain descriptions of land or development

Agreed: That decisions on these clauses are deferred until further discussion at the meeting on 10 February 2011.

2.35pm Mr McGlone left the meeting.

Clause 39 - Grant of planning permission in enterprise zones

Agreed: That the Committee is content with Clause 39 as drafted.

Clause 40 - Form and content of applications

Agreed: That the Committee is content with Clause 40 as drafted.

Clause 41– Notice, etc., of applications for planning permission

Agreed: That a decision on Clause 41 is deferred until the Department clarifies if neighbour notification will be made compulsory.

Clause 42 - Notification of applications to certain persons

Agreed: That a decision on Clause 42 is deferred until the Department reports back on the number of occasions Planning Service has used the powers under this Clause.

Clause 43 - Notice requiring planning application to be made

Agreed: That the Committee is content with Clause 43 as drafted.

2.38pm Mr McGlone rejoined the meeting.

Clause 44 - Appeal against notice under section 43

Agreed: That the Committee is content with Clause 44 as drafted.

Clause 45 - Determination of planning applications

Agreed: That the Committee is content with Clause 45 as drafted.

Clause 46 - Power of council to decline to determine subsequent application

Agreed: That the Committee is content with Clause 46 as drafted.

Clause 47 - Power of Department to decline to determine subsequent application

2.50pm Mr Kinahan rejoined the meeting.

2.52pm Mr Weir left the meeting.

2.59pm Mr McGlone left the meeting.

Clause 48 - Power of council to decline to determine overlapping application

Agreed: That the Committee is content with Clause 48 as drafted.

Clause 49 - Power of Department to decline to determine overlapping application

Agreed: That the Committee is content with Clause 49 as amended by the Department.

3.06pm The Chairperson suspended the meeting.

3.30pm The meeting resumed. with the following members present: Mr Boylan, Mr Kinahan, Mr Trevor Clarke, Mr Willie Clarke, Mr Wilson.

Clause 50 - Duty to decline to determine application where section 27 not complied with

Agreed: That the Committee is content with Clause 50 as drafted.

Clause 51 - Assessment of environmental effects

Agreed: That the Committee is content with Clause 51 as drafted.

Clause 52 - Conditional grant of planning permission

Agreed: That the Committee is content with Clause 52 as drafted.

3.35pm Mr Willie Clarke left the meeting.

3.35pm The Chairperson suspended the meeting. due to lack of quorum.

3.55pm The meeting resumed. with the following members present: Mr Boylan, Mr Willie Clarke, Mr Kinahan, Mr Wilson, Mr McGlone.

Clause 53 - Power to impose aftercare conditions on grant of mineral planning permission

Agreed: That the Committee is content with Clause 53 as drafted.

3.57pm Mr Trevor Clarke rejoined the meeting.

Clause 54 - Permission to develop land without compliance with conditions previously attached

Agreed: That the Committee is content with Clause 54 as drafted.

Clause 55 - Planning permission for development already carried out

Agreed: That the Committee is content with Clause 55 as drafted.

Clause 56 - Directions etc. as to method of dealing with applications

Agreed: That the Committee is content with Clause 56 as drafted.

Clause 57 - Effect of planning permission

Agreed: That the Committee is content with Clause 57 as drafted.

Clause 58 – Appeals

Agreed: That the Committee is content with Clause 58 as drafted.

Clause 59 - Appeal against failure to take planning decision

Agreed: That the Committee is content with Clause 59 as drafted.

Clause 60 - Duration of planning permission

Agreed: That the Committee is content with Clause 60 as drafted.

Clause 61 - Duration of outline planning permission

Agreed: That the Committee is content with Clause 61 as drafted.

Clause 62 - Provisions supplementary to sections 60 and 61

Agreed: That the Committee is content with Clause 62 as drafted.

4.03pm Mr Buchanan rejoined the meeting.

Clause 63 - Termination of planning permission by reference to time limit

Agreed: That the Committee is content with Clause 63 as drafted.

Clause 64 - Effect of completion notice

Agreed: That the Committee is content with Clause 64 as drafted.

Clause 65 - Power of Department to serve completion notices

Agreed: That the Committee is content with Clause 65 as drafted.

Clause 66 - Power to make non-material changes to planning permission

Agreed: That the Committee is content with Clause 66 as drafted.

Clause 67 - Revocation or modification of planning permission by council

Agreed: That the Committee is content with Clause 67 as drafted.

Clause 68 - Aftercare conditions imposed on revocation or modification of mineral planning permission

Agreed: That the Committee is content with Clause 68 as drafted.

Clause 69 - Procedure for section 67 orders: opposed cases

Agreed: That the Committee is content with Clause 69 as drafted.

Clause 70 - Procedure for section 67 orders: unopposed cases

Agreed: That the Committee is content with Clause 70 as amended by the Department.

Clause 71 - Revocation or modification of planning permission by the Department

Agreed: That the Committee is content with Clause 71 as drafted.

Clause 72 - Orders requiring discontinuance of use or alteration or removal of buildings or works

Agreed: That the Committee is content with Clause 72 as drafted.

Clause 73 - Confirmation by Department of section 72 orders

Agreed: That the Committee is content with Clause 73 as drafted.

Clause 74 –and Power of Department to make section 72 orders

Agreed: That the Committee is content with Clause 74 as drafted.

Clause 75 - Planning agreements

Agreed: That the Committee is content with Clause 75 as drafted.

Clause 76 - Modification and discharge of planning agreements

Clause 77 –Appeals

Agreed: That the Committee is content with Clause 77 as drafted.

Clause 78 - Land belonging to councils and development by councils

Agreed: That the Committee is content with Clause 78 as amended by the Department.

6. Date, time and place of next meeting

10.00am The next meeting will be held on Thursday 10 February 2011 in the Room 144, Parliament Buildings.

4.15pm The Chairperson adjourned the meeting.

Cathal Boylan

Chairperson, Committee for the Environment
10 February 2011

[EXTRACT]

Thursday 10 February 2011,
Room 144, Parliament Buildings

Present: Mr Cathal Boylan (Chairperson)
Mr Thomas Buchanan
Mr Trevor Clarke
Mr Willie Clarke
Mr Danny Kinahan
Mr Patsy McGlone
Mr Alastair Ross
Mr George Savage
Mr Peter Weir
Mr Brian Wilson

In Attendance: Dr Alex McGarel (Assembly Clerk)
Mr Sean McCann (Assistant Clerk)
Mr Nathan McVeigh (Clerical Supervisor)
Ms Antoinette Bowen (Clerical Officer)
Ms Eilis Haughey (Bill Office Clerk)

Apologies: Mr John Dallat

5. Planning Bill – Formal clause by clause consideration

The Committee continued formal clause by clause consideration of the Planning Bill.

The Chairperson informed that a number of documents relating to the Bill had been received since members’ papers were issued and these were tabled for members’ attention.

Letter from 5 MLAs requesting that the Committee takes evidence on the Planning Bill from the South Belfast Resident’s groups.

The Chairperson reminded members that they already discussed the possibility of the South Belfast Resident’s groups giving evidence on the Bill and that the Committee asked for further information in writing from the group due to lack of time.

Agreed: That a letter is sent to the 5 MLAs stating that, due to lack of time, it would not be possible hear oral evidence from the South Belfast Resident’s Groups but that their concerns had been addressed during clause analysis.

Members noted the following papers and agreed to incorporate the papers into the final Committee report:

  • Departmental response to QUB Research Briefing papers 1 and 4
  • Research paper on Simplified Planning Zones
  • Note of Chairperson’s meeting with Professor Gregg Lloyd
  • Draft Committee amendments
  • Departmental response to Committee queries relating to Clauses 160, 196-197 and 237 and issues raised by Belfast Residents’ Groups
  • Departmental response to Committee queries relating to Clauses 130, 134-136, 149-150, 184, 186 and 237
  • Departmental response to Committee queries relating to Clauses 1, 10, 33, 133, 148, 178, 202, 221, neighbourhood notification and awarding costs at papers and the listing process.

Clause 79 - Lists of buildings of special architectural or historic interest

Agreed: That the Committee is content with Clause 79 as drafted.

Clause 80 – Temporary listing: building preservation notices

Agreed: That the Committee is content with Clause 80 as drafted.

Clause 81 –Temporary listing in urgent cases

Agreed: That the Committee is content with Clause 81 as drafted.

Clause 82 - Lapse of building preservation notices

Agreed: That the Committee is content with Clause 82 as drafted.

Clause 83 - Issue of certificate that building is not intended to be listed

Agreed: That the Committee is content with Clause 83 as drafted.

10.38a.m Mr McGlone left the meeting.

Clause 84 - Control of works for demolition, alteration or extension of listed buildings

Agreed: That the Committee is content with Clause 84 subject to a Committee amendment to raise the level of fine.

Clause 85 - Applications for listed building consent

That the Committee is content with Clause 85 as amended by the Department.

Clause 86 - Notification of applications for listed building consent to certain persons

Agreed: That the Committee is content with Clause 86 as drafted.

10.50a.m Mr McGlone rejoined the meeting.

Clause 87 - Call in of certain applications for listed building consent to Department

Mr Kinahan declared an interest as an owner of a listed building

Agreed: That the Committee is content with Clause 87 as drafted.

Clause 88 - Duty to notify Department of applications for listed building consent

Agreed: That the Committee is content with Clause 88 as drafted.

Clause 89 - Directions concerning notification of applications, etc.

Agreed: That the Committee is content with Clause 89 as drafted.

Clause 90 – Decision on application for listed building consent

Agreed: That the Committee is content with Clause 90 as drafted.

10.52a.m Mr Wilson left the meeting.

Clause 91 – Power to decline to determine subsequent application for listed building consent

Agreed: That the Committee is content with Clause 91 as drafted.

Clause 92 – Power to decline to determine overlapping application for listed building consent

Agreed: That the Committee is content with Clause 92 as drafted.

Clause 93 - Duration of listed building consent

Agreed: That the Committee is content with Clause 93 as drafted.

Clause 94 - Consent to execute works without compliance with conditions previously attached

Agreed: That the Committee is content with Clause 94 as drafted.

Clause 95 - Appeal against decision

Agreed: That the Committee is content with Clause 95 as drafted.

Clause 96 - Appeal against failure to take decision

Agreed: That the Committee is content with Clause 96 as drafted.

Clause 97 - Revocation or modification of listed building consent by council

Mr Savage declared an interest as a member of Craigavon Borough Council

10.55a.m Mr Ross left the meeting.

Clause 98 - Procedure for section 97 orders: opposed cases

Agreed: That the Committee is content with Clause 98 as drafted.

Clause 99 - Procedure for section 97 orders: unopposed cases

Agreed: That the Committee is content with Clause 99 as drafted.

Clause 100 - Revocation or modification of listed building consent by the Department

Agreed: That the Committee is content with Clause 100 as drafted.

Clause 101 - Applications to determine whether listed building consent required

Agreed: That the Committee is content with Clause 101 as drafted.

Clause 102 - Acts causing or likely to result in damage to listed buildings

Agreed: That a decision on this clause is deferred until the meeting on 15 February 2011.

Clause 103 - Conservation areas

Agreed: That the Committee is content with Clause 103 as drafted.

Clause 104 - Control of demolition in conservation areas

Agreed: That the Committee is content with Clause 104 as amended by the Department.

Clause 105 - Grants in relation to conservation areas

Agreed: That the Committee is content with Clause 105 as drafted.

11.03a.m Mr Ross rejoined the meeting.

Clause 106 - Application of Chapter 1, etc., to land and works of councils

Agreed: That the Committee is content with Clause 106 as amended by the Department.

Clause 107 - Requirement of hazardous substances consent

Agreed: That the Committee is content with Clause 107 as drafted.

Agreed: That the Department provides the Committee with clarification of the roles of the Planning Authority and NIEA in relation to hazardous substances.

Clause 108 – Applications for hazardous substances consent

Agreed: That the Committee is content with Clause 108 as drafted.

Clause 109 – Determination of applications for hazardous substances consent

Agreed: That the Committee is content with Clause 109 as drafted.

Clause 110 – Grant of hazardous substances consent without compliance with conditions previously attached

Agreed: That the Committee is content with Clause 110 as drafted.

Clause 111 – Revocation or modification of hazardous substances consent

Agreed: That the Committee is content with Clause 111 as drafted.

Clause 112 – Confirmation by Department of section 111 orders

Agreed: That the Committee is content with Clause 112 as drafted.

Clause 113 - Call in of certain applications for hazardous substances consent to Department

Agreed: That the Committee is content with Clause 113 as amended by the Department.

Clause 114– Appeals and Effect of hazardous substances consent

Agreed: That the Committee is content with Clause 114 as drafted.

Clause 115 - Change of control of land

Agreed: That the Committee is content with Clause 115 as amended by the Department.

Clause 116 – Offences

Agreed: That a decision on this Clause is deferred until Departmental officials provide a list of the substances in the regulations, the level of fine in the Republic of Ireland, how often the fine has been used and clarification on who keeps the fines.

Clause 117 – Emergencies

Agreed: That the Committee is content with Clause 117 as drafted.

Clause 118 – Health and safety requirements

Agreed: That the Committee is content with Clause 118 as drafted.

Clause 119 – Applications by councils for hazardous substances consent

Agreed: That the Committee is content with Clause 119 as drafted.

11.22a.m Mr McGlone left the meeting.

Clause 120 - Planning permission to include appropriate provision for trees

Agreed: That the Committee is content with Clause 120 as drafted.

Clause 121 - Tree preservation orders: councils

Agreed: That the Committee is content with Clause 121 as drafted.

Clause 122 - Provisional tree preservation orders

Agreed: That the Committee is content with Clause 122 as drafted.

Clause 123 - Power for Department to make tree preservation orders

Agreed: That the Committee is content with Clause 123 as drafted.

11.26a.m Mr Trevor Clarke joined the meeting.

11.28a.m Mr Buchanan left the meeting.

Clause 124 - Replacement of trees

Agreed: That the Committee is content with Clause 124 as drafted.

Clause 125 - Penalties for contravention of tree preservation orders

Agreed: That the Committee is content with Clause 125 subject to a Committee amendment to raise the level of fine.

Clause 126 - Preservation of trees in conservation areas

Agreed: That the Committee is content with Clause 126 as drafted.

Clause 127 - Power to disapply section 126

Agreed: That the Committee is content with Clause 127 as drafted.

Clause 128 - Review of mineral planning permissions

Agreed: That the Committee is content with Clause 128 as drafted.

Clause 129 - Control of advertisements

Agreed: That the Committee is content with Clause 129 as drafted.

Clause 130 - Expressions used in connection with enforcement

Agreed: That a decision on this clause is deferred until Departmental officials provide information on how many closed breaches were brought to a conclusion or dropped and an indication of the types of open cases

Clause 131- Time limits

Agreed: That a decision on this clause is deferred until Departmental officials provide clarification on when a breach would occur, would this clause apply to open cases and an indication of the types of open cases.

11.48a.m Mr McGlone rejoined the meeting.

Clause 132 - Power to require information about activities on land

Agreed: That the Committee is content with Clause 132 as drafted.

Clause 133 - Penalties for non-compliance with planning contravention notice

Agreed: That the Committee is content with Clause 133 subject to amendments proposed by the Department to raise the level of fine from level 3 to level 5 and to ensure a consistent approach throughout the Bill.

Clause 134 - Temporary stop notice

Agreed: That the Committee is content with Clause 134 as drafted.

Clause 135 - Temporary stop notice

Agreed: That the Committee is content with Clause 135 as drafted.

Clause 136 - Temporary stop notice: restrictions

Agreed: That the Committee is content with Clause 136 as drafted.

Clause 137 - Temporary stop notice: offences

Agreed: That the Committee is content with Clause 137 as drafted.

Clause 138 - Issue of enforcement notice by councils

Agreed: That the Committee is content with Clause 138 as drafted.

Clause 139 - Issue of enforcement notice by Department

Agreed: That the Committee is content with Clause 139 as drafted.

Clause 140 - Contents and effect of enforcement notice

Agreed: That the Committee is content with Clause 140 as drafted.

Clause 141 - Variation and withdrawal of enforcement notices by councils

Agreed: That the Committee is content with Clause 141 as drafted.

Clause 142 - Variation and withdrawal of enforcement notices by Department

Agreed: That the Committee is content with Clause 142 as drafted.

Clause 143- Appeal against enforcement notice

Agreed: That the Committee is content with Clause 143 as drafted.

Clause 144 - Appeal against enforcement notice - general supplementary provisions

Agreed: That the Committee is content with Clause 144 as drafted.

Clause 145 - Appeal against enforcement notice - supplementary provisions relating to planning permission

Agreed: That the Committee is content with Clause 145 as drafted.

Clause 146 - Execution and cost of works required by enforcement notice

Agreed: That the Committee is content with Clause 146 as drafted.

Clause 147 - Offence where enforcement notice not complied with

Agreed: That the Committee is content with Clause 147 as drafted.

Clause 148 - Effect of planning permission, etc., on enforcement or breach of condition notice

Agreed: That the Committee is content with Clause 148 as amended by the Department.

Clause 149 - Enforcement notice to have effect against subsequent development

Agreed: That the Committee is content with Clause 149 as drafted.

Clause 150 - Service of stop notices by councils

Agreed: That the Committee is content with Clause 150 as drafted.

Clause 151 - Service of stop notices by Department

Agreed: That the Committee is content with Clause 151 as drafted.

Clause 152 - Enforcement of conditions

Agreed: That a decision on Clause 152 is deferred until the meeting on 15 February 2011.

Clause 153 - Fixed penalty notice where enforcement notice not complied with

Agreed: That a decision on Clause 153 is deferred until the meeting on 15 February 2011.

Clause 154 - Fixed penalty notice where breach of condition notice not complied with

Agreed: That a decision on Clause 154 is deferred until the meeting on 15 February 2011.

Clause 155 - Use of fixed penalty receipts

Agreed: That the Committee is content with Clause 155 as drafted.

Clause 156 – Injunctions

Agreed: That the Committee is content with Clause 156 as drafted.

Clause 157 - Issue of listed building enforcement notices by councils

Agreed: That the Committee is content with Clause 157 as drafted.

Clause 158 - Issue of listed buildings enforcement notices by Department

Agreed: That the Committee is content with Clause 158 as drafted.

Clause 159 - Appeal against listed building enforcement notice

Agreed: That the Committee is content with Clause 159 as drafted.

Clause 160 - Effect of listed building consent on listed building enforcement notice

Agreed: That the Committee is content with Clause 160 as amended by the Department.

Clause 161 - Urgent works to preserve building

Agreed: That the Committee is content with Clause 161 as drafted.

Clause 162 - Hazardous substances contravention notice

Agreed: That the Committee is content with Clause 162 as drafted.

Clause 163 - Variation of hazardous substances contravention notices

Agreed: That the Committee is content with Clause 163 as drafted.

Clause 164 - Enforcement of duties as to replacement of trees

Agreed: That the Committee is content with Clause 164 as drafted.

Clause 165 - Appeals against section 163 notices

Agreed: That the Committee is content with Clause 165 as drafted.

Clause 166 - Execution and cost of works required by section 163 notice

Agreed: That the Committee is content with Clause 166 as drafted.

Clause 167 - Enforcement of controls as respects trees in conservation areas

Agreed: That the Committee is content with Clause 167 as amended by the Department.

Clause 168 - Enforcement of orders under section 72

Agreed: That the Committee is content with Clause 168 as drafted.

Clause 169 - Certificate of lawfulness of existing use or development

Agreed: That the Committee is content with Clause 169 as drafted.

Clause 170 - Certificate of lawfulness of proposed use or development

Agreed: That the Committee is content with Clause 170 as drafted.

Clause 171 - Certificates under sections 168 and 169: supplementary provisions

Agreed: That the Committee is content with Clause 171 as drafted.

Clause 172 - Offences

Agreed: That the Committee is content with Clause 172 as drafted.

Clause 173 - Appeals against refusal or failure to give decision on application

Agreed: That the Committee is content with Clause 173 as drafted.

Clause 174 - Further provisions as to appeals under section 172

Agreed: That the Committee is content with Clause 174 as amended by the Department.

Clause 175 - Enforcement of advertisement control

Agreed: That the Committee is content with Clause 175 as drafted.

Clause 176 - Rights to enter without warrant

Agreed: That the Committee is content with Clause 176 as drafted.

Clause 177 - Right to enter under warrant

Agreed: That the Committee is content with Clause 177 as drafted.

12.27p.m Mr Buchanan rejoined the meeting.

Clause 178 - Rights of entry: supplementary provisions

Agreed: That the Committee is content with Clause 178 as drafted.

Clause 179 - Compensation where planning permission is revoked or modified

Agreed: That the Committee is content with Clause 179 as drafted.

Clause 180 - Modification of the Act of 1965 in relation to minerals

Agreed: That the Committee is content with Clause 180 as drafted.

Clause 181 - Compensation where listed building consent revoked or modified

Agreed: That the Committee is content with Clause 181 as drafted.

Clause 182 - Compensation in respect of orders under section 72, 74 or 111

Agreed: That the Committee is content with Clause 182 as drafted.

Clause 183 - Compensation in respect of tree preservation orders

Agreed: That the Committee is content with Clause 183 as drafted.

Clause 184 - Compensation where hazardous substances consent modified or revoked under section 115

Agreed: That the Committee is content with Clause 184 as drafted.

Clause 185 - Compensation for loss due to stop notice

Agreed: That the Committee is content with Clause 185 as drafted.

Clause 186 - Compensation for loss or damage caused by service of building preservation notice

Agreed: That the Committee is content with Clause 186 as drafted.

12.33p.m Mr Ross left the meeting.

Clause 187 - Compensation for loss due to temporary stop notice

Agreed: That the Committee is content with Clause 187 as drafted.

Clause 188 - Compensation where planning permission assumed for other development

Agreed: That the Committee is content with Clause 188 as drafted.

Clause 189 - Interpretation of Part 6

Agreed: That the Committee is content with Clause 189 as drafted.

Clause 190 - Service of purchase notice

Agreed: That the Committee is content with Clause 190 as drafted.

Clause 191 - Purchase notices: Crown land

Agreed: That the Committee is content with Clause 191 as drafted.

Clause 192 - Action by council following service of purchase notice

Agreed: That the Committee is content with Clause 192 as drafted.

Clause 193 - Further ground of objection to purchase notice

Agreed: That the Committee is content with Clause 193 as drafted.

Clause 194 - Reference of counter-notices to Lands Tribunal

Agreed: That the Committee is content with Clause 194 as drafted.

Clause 195 - Effect of valid purchase notice

Agreed: That the Committee is content with Clause 195 as drafted.

12.34p.m Mr McGlone left the meeting.

Clause 196 - Special provision as to compensation under this Part

Agreed: That the Committee is content with Clause 196 as drafted.

12.40p.m Mr McGlone rejoined the meeting.

Clause 197 - Historic Buildings Council

Agreed: That the Committee is content with Clause 197 as drafted.

Clause 198 - Grants and loans for preservation or acquisition of listed buildings

Agreed: That the Committee is content with Clause 198 as drafted.

Clause 199 - Acquisition of listed buildings by agreement

Agreed: That the Committee is content with Clause 199 as drafted.

Clause 200 - Acceptance by Department of endowments in respect of listed buildings

Agreed: That the Committee is content with Clause 200 as drafted.

Clause 201 - Compulsory acquisition of listed buildings

Agreed: That the Committee is content with Clause 201 as drafted.

Clause 202 - The Planning Appeals Commission

Agreed: That a decision on Clause 202 is deferred until the meeting on 15 February 2011.

12.50p.m Mr Kinahan left the meeting.

12.52p.m Mr Willie Clarke left the meeting.

Clause 203 - Procedure of appeals commission

Agreed: That the Committee is content with Clause 203 as drafted.

Clause 204 - Assessment of council’s performance

Agreed: That the Committee is content with Clause 204 as drafted.

Clause 205 - Assessment of council’s decision making

Agreed: That the Committee is content with Clause 205 as drafted.

Clause 206 - Further provision as respects assessment of performance or decision making

Agreed: That the Committee is content with Clause 206 as drafted.

Clause 207 - Report of assessment

Agreed: That the Committee is content with Clause 207 as drafted.

Clause 208 - Application to the Crown

Agreed: That the Committee is content with Clause 208 as amended by the Department.

Clause 209 - Urgent Crown development

Agreed: That the Committee is content with Clause 209 as drafted.

Clause 210 - Urgent works relating to listed buildings on Crown land

Agreed: That the Committee is content with Clause 210 as drafted.

Clause 211 - Enforcement in relation to the Crown

Agreed: That the Committee is content with Clause 211 as drafted.

Clause 212 - References to an estate in land

Agreed: That the Committee is content with Clause 212 as drafted.

Clause 213 - Applications for planning permission, etc. by Crown

Agreed: That the Committee is content with Clause 213 as drafted.

Clause 214 - Service of notices on the Crown

Agreed: That the Committee is content with Clause 214 as drafted.

Clause 215 - Correction of errors in decision documents

Agreed: That a decision on Clause 215 is deferred until the meeting on 15 February for the Department to consider a possible amendment to the wording.

Clause 216 - Correction notice

Agreed: That the Committee is content with Clause 216 as drafted.

Clause 217 - Effect of correction

Agreed: That the Committee is content with Clause 217 as drafted.

Clause 218 – Supplementary

Agreed: That the Committee is content with Clause 218 as drafted.

Clause 219 - Fees and charges

Agreed: That the Committee is content with Clause 219 as drafted.

Clause 220 - Grants for research and bursaries

Agreed: That the Committee is content with Clause 220 as drafted.

Clause 221 - Grants to bodies providing assistance in relation to certain development proposals

Agreed: That the Committee is content with Clause 221 as amended by the Department.

Clause 222 - Contributions by councils and statutory undertakers

Agreed: That the Committee is content with Clause 222 as amended by the Department.

Clause 223 - Contributions by departments towards compensation paid by councils

Agreed: That the Committee is content with Clause 223 as amended by the Department.

Clause 224 - Duty to respond to consultation

Agreed: That a decision on Clause 224 is deferred until the meeting on 15 February 2011 to allow the Department to consider an amendment that a non reply from a statutory consultee is deemed as an approval.

Clause 225 – Minerals

Agreed: That the Committee is content with Clause 225 as drafted.

Clause 226 - Local inquiries

Agreed: That the Committee is content with Clause 226 as drafted.

Clause 227 - Inquiries to be held in public subject to certain exceptions

Agreed: That the Committee is content with Clause 227 as drafted.

Clause 228 - Directions: Secretary of State

Agreed: That the Committee is content with Clause 228 as drafted.

Clause 229 - Directions: Department of Justice

Agreed: That a decision on Clause 229 is deferred until the meeting on 15 February 2011 in anticipation of a response from the Department.

Clause 230 - National security

Agreed: That the Committee is content with Clause 230 as drafted.

Clause 231 - Rights of entry

Agreed: That the Committee is content with Clause 231 as amended by the Department.

Clause 232 - Supplementary provisions as to powers of entry

Agreed: That the Committee is content with Clause 232 as drafted.

Clause 233 - Supplementary provisions as to powers of entry: Crown land

Agreed: That the Committee is content with Clause 233 as drafted.

Clause 234 - Service of notices and documents

Agreed: That the Committee is content with Clause 234 as drafted.

Clause 235 - Information as to estates in land

Agreed: That the Committee is content with Clause 235 as drafted.

Clause 236 - Information as to estates in Crown land

Agreed: That the Committee is content with Clause 236 as drafted.

Clause 237 - Planning register

Agreed: That the Committee is content with Clause 237 as drafted.

Clause 238 - Power to appoint advisory bodies or committees

Agreed: That the Committee is content with Clause 238 as drafted.

Clause 239 - Time limit for certain summary offences under this Act

Agreed: That the Committee is content with Clause 239 as amended by the Department.

Clause 240 - Registration of matters in Statutory Charges Register

Agreed: That the Committee is content with Clause 240 as amended by the Department.

Clause 241 – Directions

Agreed: That the Committee is content with Clause 241 as drafted.

Clause 242 - Regulations and orders

Agreed: That the Committee is content with Clause 242 as drafted.

Clause 243 – Interpretation

Agreed: That the Committee is content with Clause 243 as drafted.

Clause 244 - Further provision

Agreed: That the Committee is content with Clause 244 as drafted.

Clause 245 - Minor and consequential amendments

Agreed: That the Committee is content with Clause 245 as drafted.

Clause 246 – Repeals

Agreed: That the Committee is content with Clause 246 as drafted.

Clause 247 – Commencement

Agreed: That the Committee is content with Clause 247 subject to a draft Committee amendment.

Clause 248 - Short title

Agreed: That the Committee is content with Clause 248 as drafted.

Schedule 1 - Simplified planning zones

Agreed: That the Committee is content with Schedule 1 as drafted.

Schedule 2 - Review of old mineral planning permission

Agreed: That the Committee is content with Schedule 2 as drafted.

Schedule 3 - Periodic review of mineral planning permissions

Agreed: That the Committee is content with Schedule 3 as drafted.

Schedule 4 - Amendments to the Land Development Values (Compensation) Act (Northern Ireland) 1965 (c. 23)

Agreed: That the Committee is content with Schedule 4 as drafted.

Schedule 5 - The Historic Buildings Council

Agreed: That the Committee is content with Schedule 5 as drafted.

Schedule 6 - Minor and consequential amendments

Agreed: That the Committee is content with Schedule 6 as drafted.

Schedule 7 – Repeals

Agreed: That the Committee is content with Schedule 7 as drafted.

1.35p.m. The Chairperson suspended the meeting for lunch.

2.25p.m Mr Weir joined the meeting.

2.25p.m. The meeting resumed with the following members present: Mr Boylan, Mr Savage, Mr Willie Clarke, Mr Buchanan, Mr Weir.

The Chairperson informed members they now needed to consider Clauses that had been deferred from the meeting on 8 February 2011.

2.29p.m Mr Wilson rejoined the meeting.

Clause 1 - General functions of Department with respect to development of land

Agreed: That a decision on Clause 1 is deferred until the meeting on 15 February 2011 to allow the Department to consider amendments.

Clause 3 – Survey of district

The Chairperson informed members that they had been provided with a copy of a draft Committee amendment to Clause 3 to put climate change on the face of the Bill.

The Committee divided:

AYES NOES

Mr McGlone Mr Buchanan
Mr Boylan Mr Weir
Mr Willie Clarke Mr Savage
Mr Wilson

The Committee amendment was therefore agreed.

Clause 5 - Sustainable development

Agreed: That the Committee is content with Clause 5 subject to a Committee amendment.

Clause 10

Agreed: That the Committee is content with Clause 10 as amended by the Department.

3.07p.m Mr Weir left the meeting.

Clauses 33 – 38 – Simplified Planning Zones

Agreed: That a decision on Clauses 33 – 38 is deferred until the meeting on 15 February 2011 to allow the Department to consider an amendment to include thresholds, business cases and time periods with simplified planning zones.

3.10p.m Mr McGlone left the meeting.

Clauses 41 – 42 - Notice, etc., of applications for planning permission; Notification of applications to certain persons

Agreed: That the Committee is content with Clauses 41 – 42 as drafted.

Clause 44 - Appeal against notice under section 43

Agreed: That a decision on Clause 44 is deferred until the meeting on 15 February 2011.

3.20p.m Mr McGlone rejoined the meeting.

3.20p.m Mr Weir rejoined the meeting.

Agreed: That the Departmental officials report back to the Committee on the possibility of including a two year review on the face of the Bill.

3.53p.m Mr Savage left the meeting.

Agreed: That information on planning agreements is forwarded to the Committee.

Agreed: That the Departmental officials report back to the Committee with further information on the Department’s arrangements for paying for legal advice.

4.15p.m Mr Weir left the meeting.

Cathal Boylan
Chairperson, Committee for the Environment
17 February 2011

[EXTRACT]

Tuesday 15 February 2011,
Room 144, Parliament Buildings

Present: Mr Cathal Boylan (Chairperson)
Mr Thomas Buchanan
Mr Trevor Clarke
Mr Willie Clarke
Mr Danny Kinahan
Mr Patsy McGlone
Mr Alastair Ross
Mr Peter Weir

In Attendance: Dr Alex McGarel (Assembly Clerk)
Mr Sean McCann (Assistant Clerk)
Mr Nathan McVeigh (Clerical Supervisor)
Ms Antoinette Bowen (Clerical Officer)
Ms Eilis Haughey (Bill Office Clerk)

2. Planning Bill – Formal clause by clause consideration

The Chairperson informed members that they had been provided with a tabled letter from the Minister in relation to mineral extraction fees.

Agreed: That a copy of the letter is forwarded to QPANI.

The Chairperson informed members that they now needed to consider the remaining Clauses of the Planning Bill which members had agreed to defer at the meeting on 10 February 2011.

Clause 1 - General functions of Department with respect to development of land

The Chairperson asked members if they were content to agree the Committee amendment to require the Department to promote or improve social wellbeing.

The Committee divided:

AYES NOES

Mr Boylan Mr Ross
Mr Willie Clarke Mr Buchanan
Mr McGlone
Mr Kinahan

Agreed: That the Committee is content with Clause 1 subject to a Departmental amendment to further sustainable development and a Committee amendment to require the Department to promote or improve social wellbeing.

1.08p.m Mr Weir joined the meeting.

1.09p.m Mr Trevor Clarke joined the meeting.

Clauses 33 -38 – Simplified planning zones

Agreed: That the Committee is content with Clauses 33 – 38 as drafted.

Mr McGlone wished it to be noted that he did not agree with these clauses.

Clause 58 – Appeals

The Chairperson reminded members that they were content with Clause 58 as drafted at the meeting on 10 February 2011 but that during informal clause scrutiny of Clause 202 the Committee asked the Department to consider an amendment to stop the practice of new information being presented at appeals. The Department had replied to state that the amendment to bring about this requirement will be made with a new clause after Clause 58.

Agreed: That the Committee is content with a new clause after Clause 58 to prevent any new material being presented after an appeal has been lodged unless it could not have been presented at the time or there were exceptional circumstances for it not being presented.

Clauses 84 and 125 - Control of works for demolition, alteration or extension of listed buildings and Penalties for contravention of tree preservation orders

Agreed: That the Committee is content with Clauses 84 and 125 as drafted and that it should make a recommendation in its report for Tree Protection Orders to be put in place quickly to avoid trees being destroyed in the interim period before fines were raised.

Clause 102 - Acts causing or likely to result in damage to listed buildings

Agreed: That the Committee is content with Clause 102 subject to a Departmental amendment to raise the level of fine from level 3 to level 5 and subject to a Committee amendment to provide for an option of conviction on indictment.

1.28p.m Mr Willie Clarke left the meeting.

Clause 107 – Requirement of hazardous substances consent

The Chairperson informed members they were previously content with Clause 107 as drafted but had asked for further information from the Department clarifying the respective roles of the Planning Authority and NIEA in relation to its enforcement.

Agreed: That the Committee is content with the Department’s response.

Clause 116 – Offences

Agreed: That the Committee is content with Clause 116 subject to The Departmental amendment to raise the level of fine to £100,000.

Agreed: That although it has already agreed the clauses as drafted, the Committee is content with the Departmental amendments to raise the level of fine to £100,000 in Clauses 136, 146 and 149 if tabled as Consideration Stage by the Department.

1.33p.m Mr Willie Clarke rejoined the meeting.

Clauses 130 and 152 - 154 - Expressions used in connection with enforcement; Enforcement of conditions; Fixed penalty notice where enforcement notice not complied with; Fixed penalty notice where breach of condition notice not complied with

Agreed: That the Committee is content with Clauses 130, 152, 153 and 154 as drafted.

Clauses 131 and 44 - Time limits and Appeal against notice under section 43

The Chairperson asked members if they were content to agree a Committee amendment that would make both time limits 4 years for breaches of planning control.

The Committee divided:

AYES NOES

Mr Boylan Mr Weir
Mr Willie Clarke Mr Ross
Mr McGlone
Mr Buchanan
Mr Kinahan

The Departmental officials stated that the Department would be prepared to introduce an amendment to make both time limits 5 years for breaches of planning control.

Agreed: That the Committee is content with Clauses 131 and 44 subject to a Departmental amendment to make both time limits 5 years for breaches of planning control.

Clause 202 - The Planning Appeals Commission

The Chairperson informed members that they deferred this clause pending an amendment from the Department that would allow costs to be awarded where a party has been put to unnecessary expense and where PAC has established that the other party has acted unreasonably.

The Chairperson further informed members that they had been provided with the Department’s response which indicated that two new clauses would be brought forward after clause 202 to allow for the awarding of costs.

Agreed: That the Committee is content with the Departmental amendment introducing new clauses to allow for the awarding of costs by the appeals commission where a party has been put to unnecessary expense.

Agreed: That the Committee is content with Clause 202 as drafted

Clause 215 - Correction of errors in decision documents

Agreed: That the Committee is content with Clause 215 as amended by the Department.

Clause 224 - Duty to respond to consultation

Agreed: That the Committee is content subject to a Committee amendment to insert a new Clause after Clause 187.

Agreed: That the Committee is content with Clause 224 as drafted.

Clause 229 - Directions: Department of Justice

Agreed: That the Committee is content with Clause 229 subject to a Departmental amendment to refer to the Attorney General.

Two Year Review of the implementation of the Bill:

The Chairperson informed members that the Committee had asked the Department to consider an amendment to introduce a mandatory review period of the new planning system once it has been devolved to local authorities.

The Minister had stated he would not be bringing forward an amendment on this issue.

The Chairperson informed members that they had been provided with a draft Committee amendment which suggested introducing a new clause which will require the Department to review the system within 3 years of the Bill commencement and at least once every 5 years thereafter.

The Chairperson asked members if they were content to agree the Committee amendment requiring the Department to conduct a review within 3 years of the Planning Bill being implemented and thereafter every 5 years.

The Committee divided:

AYES NOES

Mr Boylan Mr Trevor Clarke
Mr Willie Clarke Mr Buchanan
Mr Ross
Mr Kinahan
Mr Weir

The amendment was not agreed.

Community Amenity Level:

The Chairperson asked members if they were content to agree an amendment to provide powers for the Department to introduce a Community Amenity Levy if and when it deems appropriate.

The Committee divided:

AYES NOES

Mr Kinahan Mr Weir
Mr Boylan Mr Ross
Mr Willie Clarke Mr Buchanan
Mr Trevor Clarke

The amendment was not agreed.

Agreed: That the Committee makes a recommendation in its report that the Department explores in more detail the opportunities that might be available through an infrastructure/amenity levy.

2.28p.m Mr Kinahan left the meeting.

The Committee considered the possibility of an amendment to require the Department to prepare a land use strategy to be used to provide a template and give consistency for major/regionally significant planning decisions made at the centre.

Agreed: The Committee agreed not to make an amendment or recommendation on this issue.

The Chairperson informed members they had been provided with a Departmental amendment to Schedule 2.

Agreed: That the Committee is content with Schedule 2 as amended by the Department.

The Chairperson informed members they had been provided with a submission on the Planning Bill form Belfast Civic Trust.

Agreed: That the submission is included in the final Committee report with a note that it arrived after the closing date for submissions.

Cathal Boylan
Chairperson, Committee for the Environment
17 February 2011

[EXTRACT]

Appendix 2

Minutes of Evidence

13 January 2011

Members present for all or part of the proceedings:

Mr Cathal Boylan (Chairperson)
Mr Patsy McGlone (Deputy Chairperson)
Mr Thomas Buchanan
Mr Willie Clarke
Mr John Dallat
Mr Danny Kinahan
Mr Alastair Ross
Mr George Savage
Mr Peter Weir
Mr Brian Wilson

Witnesses:

Ms Suzie Cave

 

Research and Library Services

Dr Ken Sterrett

 

Queen’s University Belfast

Ms Irene Kennedy
Mr Angus Kerr
Ms Catherine McKinney
Ms Maggie Smith

 

Department of the Environment

1. The Chairperson (Mr Boylan): I remind members that this evidence session is being recorded. If any member needs to use their mobile phone, I ask that they go outside the room to do so, because mobiles interfere with the system.

2. I welcome back Suzie Cave from the Assembly Research and Library Services and Dr Ken Sterrett from Queen’s University Belfast. They will give us a briefing on Part 1 and Part 2 of the Bill, which deal with planning functions and local development plans.

3. Ms Suzie Cave (Research and Library Services): The research paper has been produced on behalf of the Assembly Research and Library Service by the School of Planning, Architecture and Civil Engineering at Queen’s University Belfast. I will introduce Dr Ken Sterrett, a senior lecturer at Queen’s who specialises in areas of participatory planning, community planning, integrated planning and urban design. He will take you through the paper and respond to any questions that you may have.

4. Dr Ken Sterrett (Queen’s University Belfast): Thank you very much for inviting me here. This is one of four papers that we have been asked to prepare and deliver to you over the next couple of weeks. As the Chairperson said, this paper deals directly with the functions of the Department of the Environment (DOE) and development planning. Those are covered in Part 1 and Part 2 of the Bill. I will go through some of the key points that we have identified as being important. We will then raise some questions that may help you to investigate and interrogate the legislation a little bit more.

5. With your indulgence, Chairperson, I will preface my comments by saying something about the shift from land use planning to spatial planning. That will underpin a lot of what I will say today. We are seeing a major shift from traditional land use planning, which we all know and love and have had for a number of years, to a new way of looking at planning that is known as spatial planning.

6. I should say that we are assuming that that is what the Department is doing with the Bill, and we are making that assumption because a good part of the Bill has been lifted almost directly from the Planning and Compulsory Purchase Act 2004 that covers England and Wales. That Act effectively introduced spatial planning into those jurisdictions, and it was followed by all sorts of policy and guidance. Therefore, it is in that context that I will identify a number of points.

7. The first point relates to the planning functions of the DOE. That is dealt with in clause 1, which states that the planning function of the DOE is to:

“formulate and co-ordinate policy for securing the orderly and consistent development of land and the planning of that development."

8. That is traditionally what the Department does, and it was part of the old legislation. Therefore, if we are moving to a different sort of system and are looking at a new way of planning that is bringing about a change and whole new culture, the question is: should that not be reflected in what the Department describes as its planning functions? That is the first point.

9. Secondly, and I think that this is one of the key points, the Bill does not include an explicit reference to the important links between the local development plan and the council’s community plan. That is key, because if you look at the systems in places where spatial planning has been introduced, they have been about keeping strong links between the broader community plan, which is prepared by the local authorities, and the eventual spatial plan, which is the local development plan. That is not in the Bill, so you may want to ask the Department about that, because it has been a key factor in the delivery of spatial planning in other jurisdictions.

10. Mr Weir: Are you suggesting that there should be a degree of leverage, with cross-referencing in the Bill?

11. Dr Sterrett: Yes.

12. Mr Weir: It is not normal to have commitments in legislation to particular timetables.

13. Dr Sterrett: I appreciate that. For example, the Planning and Compulsory Purchase Act 2004 in England and Wales has a requirement relating to local development plans, which means that people “must have regard to" the local community plan, for example. Therefore, that linkage is in legislation.

14. If the new legislation is the beginning of a process to introduce spatial planning to Northern Ireland, as I said earlier, it represents a radical change to the planning system. Of course, it will need a lot of supportive policy and guidance. A lot of additional material will be needed above and beyond what is in the Bill to explain how it might work and how to advise local authorities about that and about the linkages and community involvement and so on. I think that it is important to have a sense of what the timetable for that might be on the back of the Bill, because one will not work effectively without the other.

15. The new legislation and the overall approach to spatial planning will require substantial training for stakeholders. That is important, because research shows that where similar legislation has been introduced elsewhere, such as happened in England and Wales in the past six years, any problems have been in adapting people to the new system and about addressing the culture change. We have done some research on this at Queen’s University, but on reading other research reports, it has been found that adequate training is the main issue. A colleague of mine refers to a process of learning and, more importantly, unlearning; in other words, unlearning previous processes and learning new ones. Therefore, that is key. It applies not just to professional planners, but to officials and politicians, and, critically, to other stakeholders, given that this is a more integrative process.

16. The new legislation, together with follow-up policy and guidance, will necessitate the creation of a set of intra-government relationships that should be carefully considered. The proposal is that the councils will be the local planning authority, the Department of the Environment will be the central government body with responsibility for planning, and the Department for Regional Development (DRD) will have responsibility for strategic planning. On top of that, there is the role of the Office of the First Minister and deputy First Minister (OFMDFM), so there is a whole set of relationships. I think it is important that we as a public and you as members give some thought to that.

17. The relationship of the local development plan to the regional development strategy needs to be carefully considered. Currently, when a local area plan is being prepared, the legislation requires it to be “in general conformity with" the regional development plan. That is being downgraded to “having regard to". The lawyers among you will know all the little nuances of language in phrases such as “taking account of", “having regard to" and “must be in conformity with", but during the planning consultation process, people were concerned about what was effectively a downgrading of the regional development strategy.

18. When councils prepare local area plans in the future, it will probably be very important that, for all those plans, there is that regional coherence that the regional development strategy provides so that there will be a framework within which they are set. You may want to consider the specific language that is to be used about the relationship between the local development plan and the regional development strategy.

19. When looking at the package of legislation and at what is proposed by way of the development plans, another important point to note is that we have the plan strategy for each area, which is the broad, strategic ambition of the plan. Moving on from that, there is the local policies plan, which is the more site-specific part of that process. In England, there is a facility known as an area action plan. In other words, if specific actions need to be taken in some areas, such as a regeneration area or a town centre or just somewhere where change is going on, those can be identified in a broad strategy plan. If the focus is on the delivery of development in those areas, area action plans are used, and they have been quite effective.

20. The Bill does not provide that facility, and I suggest that, if we are thinking ahead to getting a better marriage between planning and regeneration, which are activities that for years here have been separated here, this might be one facility that you might want to think about having included in the Bill.

21. The next point is that the Department is not bound by the recommendations of the independent examination. I put that in, because when I read through the consultation responses, the report on planning reform and the Department’s response to that, there was some concern that the Department of the Environment would retain overall control over most things, meaning that whenever a local authority prepared its local development plan and it went to independent examination, the outcome would be controlled by the Department, rather than the local authority simply being bound by the outcome. Some people asked during the consultation whether that dilutes the devolved powers of local authorities.

22. The next point is about the Department having the power to direct councils to produce joint development plans. Elsewhere, that is largely voluntary. However, in this case, the Bill says that the Department will have the power to direct councils to work together. Many of you will see the benefit of that, particularly in semi-strategic areas and so on. It has all sorts of other implications that the Committee might want to explore. For example, in the case of greater Belfast, a number of local authorities were asked to come together to produce a plan for that area. Is that just a strategy plan? Could each local authority go ahead after that and build up the detail of that plan through the local policies plan? There might also be an issue with who becomes the planning authority: having prepared a plan for a number of different council areas, do we assume that each council will effectively be the planning authority in charge of development management from thereon in? What way will that work out? You may want to get a better understanding of that.

23. The last point is about implementation and delivery. The literature and the research over the past number of years about the move from land use planning to spatial planning has, centrally, been about delivery. We can look back at the origins of spatial planning in the UK and even in the rest of Europe. In the UK, that has been driven by the Treasury. Therefore, the move has not been some grand scheme by planners. It has been driven by the Treasury, because it saw planning as potentially the vehicle through which it could deliver infrastructure on the ground and create place at a local level. Delivery is at the heart of the matter, and the concern that I think we all have about the new planning system is whether that delivery system will be centrally attached to the new planning functions at a local level.

24. Those are some of the key points. We only have five minutes, so we should perhaps take some questions. Is that what you want to do?

25. The Chairperson: Do you have anything to add, Suzie?

26. Ms Cave: No.

27. The Chairperson: As we have only five minutes, we will finish the rest of the business when we move to room 21. Anybody who has a contribution to make can return to room 21 at 2.00 pm, and we will continue.

The meeting was suspended at 1.32 pm.

On resuming —

28. The Chairperson: We are restarting, and I thank Ken for his presentation, which I enjoyed; there was a lot in it. I have a few questions to ask, and then I will open the session up to members.

29. Ken, you mentioned spatial planning, which I want to touch on. The fact that it looks as though the Bill makes provision for the involvement of the community is obviously great, as is the idea of giving local councils more power, because they will then be more accountable. As you know, there has been a lot of criticism through the years of the way that the council system implements planning.

30. Do you think that a spatial planning element, which you mentioned, is underlying in the Bill? Is that the notion and idea that the Bill proposes? If that is the case, I want you to talk about the implementation and roll-out of that planning. When do you think that will happen? If we go down the route of spatial planning, how long will the process take, including the training and support that local councils will need, and how long will it take to roll out the subordinate and complementary legislation that will need to follow?

31. Dr Sterrett: When we were asked to do this work, we looked at the Bill, the background papers, the consultation on planning reform and so on. More specifically, after looking at the Bill, we thought that it was introducing spatial planning into Northern Ireland, given that a good part of it has been lifted from the 2004 English and Welsh legislation, which effectively introduced spatial planning into England and Wales. A lot of research has been done in England and Wales about how effective the introduction of spatial planning has been. For example, was it right to move away from regulatory land use planning to spatial planning? What were its origins? Where did it come from? How effective has it been? What have been the problems? A lot of work has been done on all that. We might come back to that at some stage, because it may be useful for the Committee to hear about it from someone else.

32. At heart, introducing that planning was about delivering on the ground. For all its good points in Northern Ireland, planning has not necessarily been about delivery. As a colleague of mine once said, it is about proposing, not disposing. In other words, we propose and set up a development plan, and we then leave it to the market or whoever else is responsible to implement it. Spatial planning is very different. It is about putting together a plan for an area, creating a place, which is also a very important concept, and then setting in place its delivery. The community plan has to be connected to that, because it provides the context. For example, a community plan prepared for a local authority will look at what the broad vision of that area might be in all its dimensions by drawing in health, education, environment, transport and so on. In effect, a good development plan is the spatial expression of that plan. However, there are other parts to that community plan that are not spatially expressed. Therefore, the development plan is the spatial expression, meaning that development planning is knitted into a wider process and into service delivery.

33. That was at the heart of the new system in England and Wales. There is no doubt that they have had problems with it, but it seems to be working reasonably well. Until now, because of the way that government is structured here, we did not have the opportunity to introduce such planning. However, with the new local government structures and a new set of responsibilities at local government level, there is the potential to introduce such planning in a way that has not been the case in the past.

34. The Committee will probably hear the Department say that one of the advantages of the system is that community consultation is front-loaded, meaning that people are involved in shaping the plan in the first place. That reduces the amount of objection and problems involved in implementation and in making planning applications for specific sites and so on. The idea is to get a broad agreement about the vision for the area right at the beginning of the process and then to set in place the set of strategic principles that will guide development thereafter.

35. Therefore, it is a very different process. The one point of reflective criticism that I heard from across the water is that they did not prepare themselves enough for the new system. I did some work a few years ago in a couple of local authorities in England, and I asked them plainly how the system was working. They said that their greatest difficulty is the culture change, that is, getting people who have traditionally worked with mainstream planning to change the way that they look at the planning system. That is much easier for younger people coming in and so on, as it always is. However, for people who operated the system for years, making that change has been very difficult. Therefore, we know that about that system, and if we are introducing it here, we could perhaps factor that in at this stage.

36. The Chairperson: That leads me to a couple of points. On the face of it, front-loading is a good way to go. However, you have heard the talk — I have to throw this in — about the third-party appeals issue. Some people may say that front-loading and back-loading at the same time gives everybody an opportunity, but, that at the end of the day, there is a mechanism to allow somebody to stop the whole process. We all understand that. You talked about a culture change and so forth, but, until the system is properly rolled out and is fit for purpose, there needs to be a mechanism to make sure that the right result, that is, economic benefits, is achieved. We will go through a transition period in which we try to roll out the system through all the necessary training and so forth. You talked about joint plans and councils. That is the way it is and the way it will be for a time. Will you now touch on the third-party appeals issue, without necessarily giving your personal views?

37. Dr Sterrett: We have a paper coming up next Tuesday, I think, on third-party appeals.

38. The Chairperson: OK; we will leave it at that. You mentioned the front-loading of the system, but we will get to that again.

39. I have another point to make before I let members in. The whole idea behind area plans, gathering information and spatial planning is to include everybody, including those from the private sector and everywhere else. Is the experience in England that there have been private sector contributions and so forth, and is it working?

40. Dr Sterrett: Do you mean the levy?

41. The Chairperson: Yes. There needs to be buy-in. Land should be zoned not just for certain purposes; consideration should be given to economic benefits as the system is rolled out. That is what we want to try to get to.

42. Dr Sterrett: I cannot remember the name of the levy, but there is a process in England for collecting levies from developers to feed in to their infrastructure budget and so on. I will be honest and say I do not know too much about it, but it would be interesting to ask the Department about that.

43. An important point is that there could be a new spatial planning system that operates through the new local authorities where there is responsibility for areas such as regeneration and where other sectors buy in to that through the community plan. There used to be a joke doing the rounds about development plans — I hope that I am representing this in the right way in front of the departmental officials — that they were where you put the houses, but that was about all. In a sense, those plans were very narrowly defined. However, if you were employing a spatial planning system to develop, say, Newcastle, you would look at the place in the round. You would ask what is distinctive about the place. What does it need? How well structured is it? What about its educational and health needs?

44. Good examples of local development frameworks across the water are those where the area plans have factored in and addressed issues such as obesity through a network of pedestrian paths. Therefore, it is about joining all those things together in a way that we have not done previously.

45. A few years back, I did some work for the Welsh Assembly Government, which introduced spatial planning as a new concept in their national spatial plan. To launch the plan, the Minister at the time purposely brought in the Ministers responsible for education and health and another Minister to demonstrate to the public that what they were doing was an entirely new way of looking at overall planning in Wales. In future, we want to look at the spatial implications of a whole range of policies in a way that we do not at present. Therefore, it is about drawing all that together. However, I know that that will be difficult, because the Department has limited resources to take it forward. Nevertheless, it is potentially a very exciting way of taking planning forward.

46. The Chairperson: It is just a pity that you talked about Newcastle; that was a bad example.

47. I am glad that you mentioned the resource element. That issue obviously came up this morning when members discussed the budget and the transfer of this whole process. A lot of ongoing work on area plans is ongoing. I know that you have worked on that, and, certainly, a lot of that work can be used. There is no point in saying that we need to totally start again. That is something that we need to look at as part of the resource issue.

48. Dr Sterrett: Again, I think that the work that has been done on service delivery, for example, in England and Wales shows that some savings have been made there. However, I am saying that without having the figures in front of me. Nevertheless, it would appear that the new model is delivering a better product, as it were, and that there have certainly been some savings for the public and private sectors.

49. Mr Savage: It was interesting to hear you talk about planning in Wales. I sit on Craigavon Borough Council, and the village beside mine has taken on a new image altogether. Anybody who came back to it after being away for 10 years would not recognise it. A big development will be taking place. However, the big issue is that the schools have not moved with any of the developments, and that is a major problem. I know of people who live not 20 yds away from a school but cannot get their kids into that school. One area has not developed with the other. Those major issues have to be addressed.

50. Change is very important, and I welcome it. I spend half my time working with planners, and I must say that I appreciate the work that they do, and I have a good working relationship with them. I cannot see who is sitting behind me, but I am sure that I know some of them. Over the years, this has gone on, but change has to come about. Since the boom time, massive houses have been left derelict right around the country, because people cannot afford to take them to the next stage. However, I mean no disrespect to anybody.

51. You said that new planners would have different ideas about how to do things. I totally agree with that. However, those changes need to come about, because it is all very nice having big houses, but, to me, they are just big square concrete slabs. There is nothing imaginative about them. It is all very well if people built them for purpose in the boom time, but that has not happened.

52. A person who wants to build — I am talking about a first-time buyer — has a job getting on to that ladder and getting permission for a house. Planning Policy Statement (PPS) 21 is a very useful paper, but a lot of our planners have to read into it a wee bit more. It was good, but there needs to be changes. I am not talking about massive changes and letting things go the way they used to. To give an example, a small farm was handed down to a chap, and, all of a sudden, there was a bit of a feud between the family and there were legal matters to deal with. The neighbour had to get the drains cleaned out. As the fella was going in with the digger, the side slipped out of the old house. The digger man would not leave and the insurance would not cover him until he demolished the whole thing, because there was a housing development just up the road a bit. When the fella came to get planning permission for a replacement, the planner said that there was nothing to replace. I can see their point of view and his, but he is left in limbo now. Therefore, there are issues to be dealt with. I am glad to see a change coming about, but I do not want to see change just for the sake of it; it has to be change that will be sustainable. The days have passed when an architect simply threw a plan in to the planners in the hope that it would be approved. He has to do something more about it. I welcome the change. I hope that it comes about, and I will be watching very carefully.

53. The Chairperson: Can you see how we do not get parochial in this Committee? Mr Kinahan, do you want to comment?

54. Mr Kinahan: Yes. I have one or two comments to make.

55. The Chairperson: I will let you in, but I have a point to make before we go off the matter of spatial planning. At the minute, we have the regional development strategy, area plans and a suite of PPSs. Mr Savage reminded me about this when he mentioned PPS 21. That is the system that is in place, and that is how it works at the minute. As regards the connection with the spatial plan and how all that is complemented, do we need to move away from part of the approach? If we go down the line of spatial planning, could you touch on what needs to be amended to roll out the legislation?

56. Dr Sterrett: In England and Wales, spatial planning is manifested at local authority level with the local development framework (LDF). That is a loose-leaf approach that has a number of components, some of which are compulsory, while others are optional. The compulsory components are the core strategy and the adopted proposals map, which is the equivalent of our local policies plan. There are also the area action plans, which I talked about earlier and which are very important.

57. There is also a facility at local authority level to produce other supplementary material, some of which does not have to go through that process. In addition, there is all the supportive policy and direction that comes from central government. There is a proposal to review all that. The Department will talk today about how it intends to put in place all the policy and guidance that is needed to support the Bill. That is key, and it is important that that comes as soon as the resources will allow.

58. Where the sequencing is concerned, one would almost want to see that material before the legislation. That is not the way, but it gives the broader explanation of what people are trying to do, and the Bill will put that on statute. We hope to see that soon.

59. All that supportive policy and guidance would be at central government level, presumably largely with the Department of the Environment. However, I assume that the Department for Regional Development will retain its strategic regional responsibility; in fact, it is legally obliged to. Therefore, that is also in place. We need to get the balance right between the two.

60. The Chairperson: You do not have to answer today, but perhaps you could look at possible amendments to the Bill to ensure that, if we go down the line of spatial planning, we know how to make amendments. Perhaps you could come back to us on that.

61. Dr Sterrett: We could certainly do that. I am sure that the Department is quite open-minded about this.

62. The Chairperson: It will get an opportunity to speak on that later. However, I ask you to bear my point in mind.

63. Mr Kinahan: I will be as quick as I can. I am intrigued. Two or three times you mentioned the English and Welsh model, on which ours is based. I would love to know more about the lessons that we have learned about how they put their system in place. We need to get those types of amendments into the Bill so that it will work at another stage.

64. You also said that training is a key element. We are rushing the Bill through. Although we will scrutinise it as thoroughly as we can, councils will need to know how much time they need to get everyone on board. Will they need a year, six months or whatever?

65. My final query is about how England and Wales dealt with the definition of “community". In one way that is easy, because there are community groups, but there are all sorts of other elements as well. How will you get that broad message out to everyone?

66. Mr B Wilson: We have a situation where the culture of individual planning applications will change. How will an individual planning application be different? For example, if someone wants to build 10 town houses, what difference will the plans make between how we look at that now and how we will look at it in a new culture?

67. Dr Sterrett: That is a very interesting question. Sometimes it is good to ask how changes will affect matters on the ground. Most people in Northern Ireland understand planning to be planning applications for a site, be it an extension to their house or some new development down the road. Thankfully, the Bill will deal with that in a much broader and more strategic way. However, when it comes to a development for a set of new town houses on a brownfield site in an urban area, if the process is working well, a local development plan would be in place. That would include the strategy plan and the local policies plan. If that came through a process that bought in to the whole community plan, there would be, if you like, public endorsement for shaping that place.

68. In your case, the example would be Bangor. We would need to identify the key characteristics of Bangor, what we want it to look like, how we want it to function and what sort of place we want it to be. If that is sorted out in strategic terms and manifested through certain proposals, and if certain policies are put in place, when it comes to dealing with that sort of development on the ground, it could be said that that is what the community wants for that place. Therefore, the decision on a particular site would be made on the criteria that come out of that. That means that there is a link with good, strong community involvement in shaping a place through a process that ends up being tested at a very local site-specific level whereas, at the moment, everyone is detached from the policy. Somebody makes a policy here, somebody makes a policy there, and they are interpreted in different ways. The process could be more community owned. It is owned by the local authority anyway, but it is also owned by the local community. It was asked what the local community is, and that is a good point. It is about not just a series of community groups, but a range of communities, one of which is the business community.

69. Mr B Wilson: The planners tell us all the time that every case should be considered on its own merits.

70. Dr Sterrett: That is the difference, if you do not mind me saying.

71. Mr B Wilson: We now have a situation where four new change-of-use planning applications have been made for coffee houses on Main Street, even though we already have a dozen. Each application is considered on its merits. However, if we had an overall strategy, we could say that we do not want any more coffee shops.

72. Dr Sterrett: Absolutely; that is the difference. One point that is often made about the difference between land use planning and spatial planning is that land use planning is really just a collection of individual decisions about a place; it does not think about the place itself. The old mantra of planning, which I used to be part of, is that each decision about a particular site should be made on its merits. Under the new system, planners do not do that, because they are looking at the place. They ask how that fits with their vision for the place in question. If that vision is about Main Street in Bangor not coming down with coffee shops, they could refuse an application on those grounds.

73. The Chairperson: Are you finished, Mr Wilson?

74. Mr B Wilson: Yes.

75. The Chairperson: Mr Clarke, you are next. Let us try to keep South Down and Newcastle out of this.

76. Mr W Clarke: I could think of worse things than coffee shops.

77. First, I thank you and your team for your excellent paper. Most of the issues have been covered; however, my points are about community participation and getting that kind of agreement. A lot of the time there is the situation where retired people, who are well educated, able and vocal about what they would like to see in a community plan, perhaps do not want to see any sort of change and do not take into account the needs of young people, such as leisure facilities. How would you ensure that everybody had an equal and balanced input and that that was valued? Who would decide its value?

78. Dr Sterrett: That is a good point, Mr Clarke. We actually have a paper coming up next Tuesday that is almost entirely devoted to that issue. It is one of the central themes in planning literature. It is about how to get consensus on key decisions in public consultation. A theory known as collaborative planning is about getting everybody together in the one room until some consensus eventually emerges. That sounds great, but it does not happen that often in practice, because you cannot get everybody to agree to the same thing. However, you can certainly give everybody a sense of being involved, and people then have to compromise to some degree. Not to bore you with academic literature, but that is known as agonistic planning, because of the agony that is involved.

79. At the end of the day, the process is about trying to draw groups in to plan-making and about making sure that those groups that are normally excluded from such situations, in fact, included. You pointed out that there are some very articulate groups that turn up at everything and get their views heard, but there are other groups that do not have the facility. Therefore, it is about making sure that all those groups are involved, that their views are heard and the relevance of those ideas is seen.

80. Quite often, in some of the work that we have done in the past, we have been able to achieve a consensus. If we want to move the project forward, at some stage, we have to say that everyone’s views have been heard and that the matter now rests with the local authority. It is no longer with the DOE, the planners or anyone else, so that is the way that we intend to take it forward. That might compromise some people’s views a bit, but, at the very least, something would have been reached that can be broadly signed up to. That is important.

81. Mr McGlone: Thank you for your work and research. I came in at the tail end of your discourse. You were talking about including people in the planning process. One thing that I noted is absent from the paper is the fact that exclusivity kicks in as a consequence of the decision-making process in planning. I did not see any reference to the importance of that in the research paper, particularly in the context of the North and of where we have come from with planning, housing and local government. Do you have any views on that?

82. Dr Sterrett: What do you mean by “exclusivity"?

83. Mr McGlone: I mean discrimination.

84. I will explain where we are coming from. We have a history of housing powers being stripped from local government, and given our history and where we come from, that was done for good and valid reasons. I thought that that would have been at least touched on in the paper.

85. Dr Sterrett: A paper that we will discuss on Tuesday will deal with that. Is that right, Suzie?

86. Ms Cave: Yes. It deals with community involvement.

87. Dr Sterrett: It deals with what you are talking about.

88. Mr McGlone: That is good.

89. Dr Sterrett: We tried to separate the issues so that each paper would have a number of themes. That one comes up on Tuesday.

90. Mr McGlone: Will you expand on the concepts of spatial planning and development planning that you discussed? How do you see that in comparison with what the Department proposes?

91. Dr Sterrett: I think that that is what the Department is proposing, but we will hear in due course. I tried to distinguish between what we call land use planning and spatial planning, which is what now underpins the Bill and, hopefully, the policy and guidance that is to follow.

92. Traditionally, Northern Ireland and, indeed, everywhere else had land use planning, which is centrally about the regulation of land. It is has a narrow focus, in that it is about the orderly development of land. Arguably, the move to spatial planning kicked off with the European spatial development perspective in 1999, which was when the European Union decided that it needed to look at the delivery of some of its programmes in a different and more integrated spatial way. In turn, that led the EU to look at how planning could be developed around the same principles. Therefore, spatial planning, as such, was introduced to England and Wales in the Planning and Compulsory Purchase Act 2004, from which, as the Committee will see, a good part of the Bill before us is lifted. In effect, that Act introduced spatial planning to England and Wales. We assume that, because that legislation is being used here, spatial planning will be introduced here.

93. Where do we start with spatial planning? Books have been written on the subject —

94. Mr McGlone: I know.

95. Dr Sterrett: Let us narrow it down to a few key points, one of which is that it is centrally about delivery. In the past, planning has been about simply setting out a plan and leaving it to the market or whoever to deliver and then regulating it through development control. Spatial planning starts with what we want to deliver on the ground. We want to bring the service providers together, and we want the private sector bought in. We want that to be central to the planning process and to the development plan process. Therefore, delivery is right at the heart of it.

96. The second difference between spatial planning and land use planning is that spatial planning is about creating place. I made the point earlier that if we take any given place, for example, some town or area of Northern Ireland, and say that we are preparing a plan for it, we need to ask what sort of vision we have for it and what sort of place we want it to be. Planning is then used to deliver that, instead of having the situation that Mr Wilson described, where individual decisions are made on the merits of individual applications for individual sites that do not make up a collective good place, because we have not started with objectives for a place.

97. The Chairperson: You talked about the independent examination. Will you tell me a wee bit more about that?

98. Dr Sterrett: The Bill proposes that the local development plans go to independent examination. That is more or less the case now. The recommendations from that independent examination would then go to the Department. Therefore, the Department would decide whether to accept those recommendations before it directs the council. There were some objections to that in the consultation. People thought that a process that involved the Department meant that there was already guidance for local councils on what they could do. If the local council were to meet its requirements and a plan were to go to independent examination, people were asking why it should go back through the Department rather than the council. I raised that matter because it was brought up in the public consultation. However, that may be something about nothing.

99. The Chairperson: I was listening; I just wanted clarification. Thanks very much. There are no other questions. The Committee looks forward to working with you over the coming weeks.

100. For our final evidence session today, I welcome Maggie Smith, Irene Kennedy, Angus Kerr and Catherine McKinney from the Department of the Environment. They will brief us on Parts 1 and 2 of the Planning Bill.

101. It is a big subject, but we will try to stick to Parts 1 and 2 if we can. We may veer off the point now and again, but we do not need to worry about that. I will hand over to Maggie to make a presentation, after which I will open the session up for questions. I should point out that we will not be able to make any decisions until we are quorate.

102. Ms Maggie Smith (Department of the Environment): Thank you very much for inviting us today to give a presentation. As you said, with me are Irene Kennedy, who, in a few minutes, will take the Committee through Parts 1 and 2 of the Planning Bill. Angus Kerr and Catherine McKinney are also here. Before I pass over to Irene, it is probably worth reminding ourselves that the Bill has come through a long process and that the Committee has had a lot of involvement in that. Therefore, this is the final stage of the development of the framework, and a lot of research and consultation has gone into developing that policy framework. However, there is more to come in secondary legislation, and I think that the Committee already has the memorandum of delegated powers, which sets out all the secondary legislation that we will bring forward. The Committee also has the timetable within which we will consult on that secondary legislation. We can refer to secondary legislation, if you need clarification on any points on our way through the discussion.

103. Ms Irene Kennedy (Department of the Environment): We have talked about a lot of the issues already, so I will briefly take members through Parts 1 and 2 of the Bill.

104. Part 1 maintains the Department’s role in formulating and co-ordinating planning policy. Clause 1 remains mostly unchanged from the Planning (Northern Ireland) Order 1991 and includes the provision that any of the Department’s policies must be:

“in general conformity with the regional development strategy".

105. Planning policy statements, together with the regional development strategy, will continue to provide the robust planning framework within which the new councils will be able to prepare their local development plans and manage development.

106. Clause 1(2)(b) will carry forward the duty in the 1991 Order for the Department to contribute to the achievement of sustainable development. That will ensure that the Department fulfils its policy formulation and co-ordinating role with the objective of contributing to the achievement of sustainable development. The Department considers it necessary to retain its ability to undertake surveys or studies to gather evidence on any planning issue. Members should note that the matters that the Department may survey at clause 1(4) have been expanded to include social and environmental characteristics, as well as physical and economic ones. Part 1 will also re-enact a duty on the Department to prepare a statement of community involvement that sets out the Department’s policy for involving the community in the planning process. That duty concerns Part 3 of the Bill, and we will, of course, come to the detail of that later in the scrutiny process.

107. Part 2 will introduce a new local development plan system. District councils will prepare local development plans for their council areas. Those plans will replace the current Department of the Environment development plans. I should say at the outset that the Minister is confident that councils will carry out all their development plan duties. However, the Bill needs to cater for the unlikely event that a council is unable to fulfil its responsibilities. As a safeguard, it therefore provides for the Department to intervene at various points in the development plan process, should it need to. However, we will come back to that later.

108. As we discussed, local development plans will comprise two documents: a plan strategy and a local policies plan. Those must be prepared, examined and adopted separately. Preparation of both must take account of the regional development strategy, of policy or advice containing guidance issued by the Department, and of any other matter that the Department may prescribe in subordinate legislation. The plan strategy will be prepared and adopted first. It sets the council’s strategic vision for the future of the area, along with strategic objectives and policies and a strategy for growth. The local policies plan will then be prepared. It has to be consistent with the plan strategy, and it will set out the details. It will incorporate the detailed site-specific plan policies and the proposals for various topic areas, such as housing, commercial or industrial growth, as well as probit maps to show where the various activities may be developed.

109. That approach has three key benefits. First, it allows the plan strategy document to be adopted quickly, that is, within approximately two years. That will ensure that there is a very early strategic direction in place for an area, and it will provide a level of certainty on which to base development decisions. Secondly, the adopted plan strategy will provide an agreed framework within which the local policies plan can be prepared. That will make the preparation of the local policies plan document easier and faster. Thirdly, the approach will ensure that representations are more focused by being submitted and examined at the appropriate stage in the plan process.

110. Under clause 3, councils will be required to keep under review issues that may affect development and planning in district council areas. Those issues include: key physical, economic, social and environmental characteristics of the district; how land is used; population distribution; and communications and transport. Those are matters that will inform the production of the local development plan.

111. Engagement with the public is integral to the development plan process. Before the district council commences public consultation on its plan strategy, it must set out in a statement of community involvement when and how it will involve the community in the plan process. That allows community groups, the voluntary sector, businesses and the public to understand how they can contribute to the formulation of the plan. The council will also have to prepare a timetable setting out the key milestones, ranging from the preparation to adoption of its local development plan, as well as a time for when each will be achieved. The timetable will assist in programme management and will help to ensure faster plan production. It will help the public, stakeholders and consultees to plan their involvement with the process.

112. The council must attempt to agree the statement of community involvement and the timetable with the Department. As a safeguard in the event of disagreement, the Department can specify the terms of either document. Once agreed, the statement of community involvement and the timetable together set the framework for the local development plan preparation.

113. Clause 5 will require the council and others involved in the development plan process to exercise those functions with the objective of contributing to the achievement of sustainable development. Clauses 8 and 9 will require a sustainability appraisal to assess the environmental, social and economic effects of development plans. That will run throughout the plan preparation process.

114. Clause 10 will require the council to submit the plan document to the Department when it is complete. The Department must then arrange for an independent examination to be carried out by the Planning Appeals Commission (PAC) or by independent persons appointed by the Department. The flexibility to appoint independent external examiners will be invaluable should a number of plans be submitted for independent examination at the same time.

115. The examination process will test the soundness of the plan. The criteria for soundness will relate to how the development plan document has been produced; the alignment of the plan document with departmental plans, policies and guidance; and the coherence, consistency and effectiveness of the plan document. The assumption will be that a plan document is sound unless it is shown to be otherwise as a result of evidence considered through the independent examination. Those who make representations to the examination will need to demonstrate how the plan does not meet the criteria for soundness and should suggest what needs to be done to make it sound.

116. Any person who makes representations seeking to change a development plan document must, if they so request, be given the opportunity to appear before, and be heard by, the person carrying out the examination. The independent examiner will submit their report to the Department, which will then issue a direction to the council to adopt the development plan document.

117. At present in Northern Ireland, there is nothing in legislation that requires the monitoring and review of development plans. Better monitoring and regular reviews of local plans will enable district councils to keep plans up to date by readily reflecting and adapting to changing circumstances. It will serve a useful purpose in improving the transparency of the planning process and will help keep the council, the community and business groups informed of development plan issues facing the area. Therefore, clauses 13 and 21 will ensure that local development plans will be reviewed at five-yearly intervals and will be monitored annually. District councils will be required to report annually to the Department on the degree to which the objectives in their plans are being achieved. The monitoring and review of plans are seen as essential elements in establishing how plans are being implemented and whether any changes are required.

118. Clause 17 will introduce powers for councils to work jointly in preparing local development plans if they so wish. That means that two adjacent councils can combine resources and prepare either a plan strategy or both plan documents jointly.

119. Clause 18 will give the Department the power to direct two or more councils to prepare a joint plan. That power is required in the event that councils may be so closely linked functionally and spatially that it will be necessary for them to work together. The Department will consult the affected district councils on such a course of action before issuing the direction. As was mentioned earlier, the Department also proposes powers of intervention, which are an important safeguard as part of the new local development plan regime. Similar to our counterparts in other jurisdictions, ensuring that central government has an appropriate oversight role means that policies and objectives that the Executive and the Department set for the region as a whole will be effectively delivered at a local level.

120. Clause 15 will allow the Department, if it thinks that a plan, strategy or local policies plan is unsatisfactory, to direct a district council to modify the plan, strategy or local policies plan at any time before it is adopted. The district council must comply with the direction.

121. The default powers in clause 16 will also allow the Department to intervene by taking over the preparation or revision of a district council’s strategy or local policies plan if it thinks that the district council is failing to properly carry out those functions. The district council must reimburse the Department for any expenditure that it incurs in exercising those powers.

122. Overall, the Bill will deliver a faster development plan system with more effective public engagement. Councils will be able to use the new local development plans to provide a clear and realistic vision of how places should change and what they will be like in the future. The plan will support that vision by clearly indicating where development, including regeneration, should take place and what form it should take. In addition, it will be possible to link the development plan with the council’s new community planning responsibilities.

123. That completes our presentation, which is aimed at familiarising members with the key aspects of Part 1 and Part 2 of the Planning Bill. We welcome any questions that members may have.

124. The Chairperson: Thank you, Irene, for your presentation. That is the first 22 clauses out of the road. Before we lose our quorum, I have to ask a question. Members have been provided with a paper on the delegated powers of the Bill. Are members are content to forward that paper to the Examiner of Statutory Rules for comment?

Members indicated assent.

125. The Chairperson: Are members content for the research paper to be made publicly available on the Assembly website?

Members indicated assent.

126. The Chairperson: You heard the previous presentation, which was about spatial planning. The key element of that is land use, which is what we are looking at. Would you like to comment on that? Planning seems to be going down the route of spatial planning. When the Bill rolls out, there will be subsequent subordinate legislation to deal with most of that. Do you have any comments to make on spatial planning?

127. Mr Angus Kerr (Department of the Environment): The spatial planning approach is the direction in which the Department wants to move. We feel that it is very much facilitated in any case by the transfer of those and other functions, such as regeneration and community planning, enabling the achievement of the broader spatial planning approach that Ken Sterrett outlined. Subordinate legislation and the ongoing development of policy and guidance is the direction in which we will encourage councils to move so that they have an ability at local level to shape how places develop. They can also have the vision for how those places move forward, and they can then incorporate that into the plan to allow it to become a delivery document that incorporates the wider elements that community planning has enabled councils to get involved in.

128. The Chairperson: Thanks very much for that clarification. That is the right way to go. The valid question was asked earlier about the definition of “community" and who is included in it. It is important that that definition be totally inclusive. I mentioned the private sector and so forth when I gave the example of contribution. Overall, however, everyone should be included, and I welcome that.

129. There are a couple of elements to consider. For example, training is a key element. Hopefully, we will get through this Bill in the time frame that is available in this mandate. We need to look seriously at the transition period, the training period and the roll-out of all that. It is all right to say that we have this wonderful document, but, as we all know, there is the question of its practical implementation to consider. When you next come back, the Committee will perhaps need to see something on how that will roll out. I know that that is resource bound as well, but it is a key element of the process.

130. I am trying not to stray into Part 3 or Part 4. If we propose to roll out the implementation, for example, from the summer, and assuming that we get the legislation through, how long will it take to get the subordinate legislation through? Do you have a time frame in mind for all that?

131. Ms Smith: We do. We are working on the preparation of the subordinate legislation in parallel. The Committee has the delegated powers memorandum, which sets out all the subordinate legislation that will flow from the Bill. We are preparing that in parallel with a view to going out to consultation as soon as the Bill is passed. Some of it is far advanced, and, in fact, we have sent you some excerpts of the secondary legislation for your next meeting. Other pieces are also in preparation.

132. The Chairperson: Will you clarify one point? I am trying to get my head around the training approach. Is there a suggestion that, apart from whatever training is required for individual members, there will be an adviser to councils? Is that the road that we are going down? Has anything been set in train already, or do you have any ideas on where to go after that?

133. Ms Smith: We have. In his statement of 30 November 2010, the Minister talked about the pilot projects that he intends to involve councils in. That will be a major part of the preparation and capacity-building elements. Those projects will begin early in the new financial year, and they will be rolled out to all councils by April 2012. In addition, the Northern Ireland Local Government Association (NILGA) and the Royal Town Planning Institute (RTPI) are talking about more specific training.

134. The Chairperson: Thank you for reminding me about the pilot programmes. I want to move to the question of independent examination. We will be handing down powers, and we want councils to look seriously at what they want to develop in their own areas. However, there will be independent examination of that. It then comes back to the Department. It is all very well to hand down powers and tell the councils to go ahead and develop whatever they want and bring back strategies and plans to the Department, but the next thing that the Department may do is look at them and say that they are not right and that they have to be tweaked. It is a mechanism to check those strategies and plans. Do you see where I am going with this? It is OK to say that the process is independent, but that independence leads back to the Department itself.

135. Mr Kerr: It is, I suppose, a check and balance or a safeguard to ensure that the direction set at regional level by the Department will be carried through to where it can be implemented at local level. The examination itself and the report will be independent of the Department. In practice, given the way that such things operate, it is unlikely that the Department would get involved in anything at local level in a local development plan. The concern is really with the alignment with central government direction on policies.

136. The Chairperson: It could go back to the PAC for examination. However, you have heard about some of the problems that have come up with that issue over the past 12 to 18 months. The independence of that body has moved from the DOE to the Office of the First Minister and deputy First Minister. The issue is about the independence of those challenges. If, for example, it goes to an appeal, the policy and guidelines will simply be followed. When we are proposing amendments, we will need to look seriously at whether that is the right way to go and at whether the process is independent, regardless of whether the PAC is involved, because that is open to question. I will come back to that point again.

137. I am mindful that Mr Savage has to leave. Mr Savage, would you like to ask a question before you go?

138. Mr Savage: I have one question to ask. Do you hope to get the Bill through in the lifetime of this Assembly?

139. Ms Smith: The Bill will go through the Assembly in this mandate.

140. Mr Savage: That is fine. I am sorry that I have to leave.

141. The Chairperson: I do not think that we have any more decisions to make today.

142. Mr McGlone: I have a couple of questions to ask. The political context, through the local government review —

143. The Chairperson: Excuse me for one minute. We are now inquorate, so we have to stop recording. The hearing will now be informal.

18 January 2011

Members present for all or part of the proceedings:

Mr Cathal Boylan (Chairperson)
Mr Patsy McGlone (Deputy Chairperson)
Mr Willie Clarke
Mr John Dallat
Mr Danny Kinahan
Mr Alastair Ross
Mr Peter Weir
Mr Brian Wilson

Witnesses:

Ms Suzie Cave

 

Research and Library Service

Dr Geraint Ellis

 

Queen’s University Belfast

Ms Lois Jackson
Ms Irene Kennedy
Mr Angus Kerr
Ms Catherine McKinney
Mr Peter Mullaney
Ms Maggie Smith

 

Department of the Environment

144. The Chairperson (Mr Boylan): We will now receive a briefing on the Planning Bill from the Assembly’s Research and Library Service. I welcome Suzie Cave from the Research and Library Service and Dr Geraint Ellis from Queen’s University. We normally give about 10 or 15 minutes for presentations, but this may take a bit longer. We need proper and formal scrutiny of the Bill.

145. Ms Suzie Cave (Research and Library Service): Thank you. You will remember that, last Thursday, Dr Ken Sterrett from Queen’s gave a presentation on the first research paper, which looked at the first two Parts of the Bill. This morning, Dr Geraint Ellis from the QUB school of planning, architecture and civil engineering will take you through the second of the four research papers, which looks at development management, planning control and enforcement. That links quite well with the sections that the Department will discuss this morning and this afternoon. This afternoon, we will also look at our third research paper, which concerns community involvement. Geraint will answer any questions or queries that you may have on that topic then. Dr Ruth McAreavey from Queen’s will look at the remaining Parts of the Bill at next Thursday’s meeting.

146. Dr Geraint Ellis (Queen’s University Belfast): Thank you. I will focus on Part 2 of the legislation. It deals with what is now called development management — it used to be referred to as development control — which is essentially the process of evaluating planning applications. Essentially, the Bill consolidates all existing legislation in that respect and, as you will have seen, re-crafts it to make provision for district councils to take the majority of the decisions on planning applications, with some important exceptions for major development.

147. There is a big distinction in that there is a subtle change of culture and approach. Previously, it was called development control, which was a highly regulative process of getting a planning application and really just refusing or giving permission. The Bill tries to move to a system of development management, as in England, Scotland and Wales. Development management is supposed to involve working with applicants a little bit more to try to secure the best sort of development for an area and, in particular, to ensure that each application is dealt with appropriately according to the scale and other needs of the applicant. That might include, for example, a lot of pre-application advice. It might mean a commitment to both the applicant and the Department or the district council to have certain things in place to ensure that the timetable for evaluating the application is adhered to and that provision is made for consultation. It is more about management and facilitating the right type of development, rather than just a yes/no process, and a lot of things follow from that.

148. A major element of the Bill is the provision for district councils to start to make a lot of the decisions on applications. However, there is a strong proviso in that a lot of powers are reserved to the Department. Some scrutiny may be needed to monitor the progress of those powers and how they are used. The bedrock of the system is an amendment that was made in 2006 to ensure that every planning application is made primarily in line with a development plan, which we call a plan-led system. However, there is a key question in that, although the legislation to provide for the plan-led system was put through in 2006, it has not yet been commenced. You may want to ask the Department when that is likely to occur, because that provision is critical to the operation of the new system that is envisaged by the legislation.

149. The legislation makes provision for a number of new issues, the more contentious of which I will come back to. The key element in the development management process is dividing all applications into two types: major development — criteria for that will be forthcoming in further guidance — and minor development. Major development applications will go straight to the Department. It has the power to hold a local inquiry if need be. The criteria for the local inquiry are not explicit in the Bill. Minor development applications will go to district councils. That is the first major distinction central to the Bill. In the case of major development, there will be an onus on the applicant to undertake a pre-application consultation with various groups. As we propose to deal with all the consultative elements this afternoon, I will put that to one side.

150. The district councils will be dealing with minor development, and the Bill gives them powers to delegate some planning applications entirely to officers to deal with — the most minor developments — but there is no guidance in the Bill about what is appropriate. It will be left to district councils to clarify what they think should be delegated to their own officers.

151. The Bill introduces a new offence of the partial demolition of a listed building, which closes a loophole that appeared as a result of case law. It introduces a fixed penalty notice for non-compliance with planning control. That essentially means that the Department can respond more quickly to enforcement issues. It does not necessarily have to rely on the courts.

152. Significantly, the Bill reduces the time for appeal on a planning application from six months after the first decision to four months. The idea is to reduce the number of appeals, but it is useful to reflect on the experience of England and Wales, where this was introduced in 2003. They had to return to six months for most appeals after the number of appeals actually increased. People would put appeals on before the issue was sorted out, just to safeguard their position. It would be well worth asking the Department about that.

153. Finally in the new provisions, the Bill introduces the concept of simplified planning zones. This is a mechanism for economic development whereby an area can be designated so that certain types of development in it will not need planning permission. London Docklands is a classic example of that.

154. Those are the major new issues in the Bill. Some questions arise over what is not in the Bill, or what has been left out after the consultation. The first one I want to highlight is that, at the minute, the planning legislation provides that the objective of the plan-making process is to contribute to the achievement of sustainable development. However, that is isolated only to plan-making. It seems incongruous that the development management process does not also have that objective. It may follow through very indirectly, but that would equalise that. The whole of the planning system should perhaps align itself to the objective of contributing to the achievement of sustainable development.

155. In the consultation on planning reform, the Department also raised the possibility of introducing what it called performance agreements between the Department and applicants for major development. Again, this is a mechanism that has been introduced in England, Scotland and Wales. For very major developments, the Department would sit down with the applicant and agree when, for example, it would get the application through or when it would need certain information. It is a commitment by both parties to handle the application in a timely manner. That has been left out of the Bill, and it may be worth asking the Department why.

156. Another thing left out of the Bill after a lot of objections in the consultation was discretion on the part of Planning Appeals Commission (PAC) to determine the type of an appeal. This was seen by people who objected to it as a removal of the right to appeal. At the minute, everyone has a right to an oral hearing. The proposal was that it would be left to the Planning Appeals Commission to decide that. In some cases, they might have decided that a written representation was applicable, just to speed things up. The Department has decided not to go ahead with that, so there will still be a right to a public hearing. I know that members are interested in the issue of third party appeals, and the Bill does not provide for that. We hope to return to that issue in more detail this afternoon.

157. The Department has also agreed not to go ahead with criminalisation for breaches of planning control. It has left that as a discretionary system. Our paper highlights some other options for that, for example, what happens in the Republic of Ireland, where it is criminalised but with an onus on, naturally, the person who is responsible for the breach of planning control.

158. The Department decided not to go ahead with what it calls certificates of the initiation of development and the completion of development, which is a process that started in Scotland. Planning permission can expire after four or five years, so the process was going to be that someone who had planning permission would have to notify the Department when they started the development, and on completion. The idea was that that would help with the enforcement of planning conditions. The Department has decided not to go ahead with that, subject to further review of what is happening in Scotland.

159. Finally, in consultation, the issue was raised of a provision to be able to award costs for unreasonable action in planning appeals. Under such a provision, the costs incurred by the other party could be awarded if the Department or even an applicant acted unreasonably in an appeal. The Department decided not to go ahead with that, and it might be worth talking to the Department about why.

160. Those are the key things by way of an overall summary, and I am quite happy to talk about anything in the paper.

161. The Chairperson: Thank you, Geraint, for your research paper. There is a lot in it, and I will pick up on some of what you said. You highlighted specific questions for the Department, but I want to pick up on what you said about the hierarchy — the major and local development. Some of the people who have responded already are in need of clarification and would like to have seen a definition before now. I know that there is one in our papers — there are definitions of “major development" and “regional significance". However, it also refers to local development, and some of the respondents are still unsure. Would you like to comment? Those respondents would need to have seen a more definitive definition.

162. Dr Ellis: I have not seen that paper.

163. The Chairperson: Would you like to comment on that for the benefit of members?

164. Dr Ellis: There is a difficult balance to be had, because it is important that the Department retains central control of major development. It is worth highlighting the difference between what is proposed in the Bill and how the process is dealt with in Wales, Scotland and England. There it is, essentially, less defined, and it is left to the central Department’s discretion to call in issues. That is a bit more flexible.

165. Recently, the Department there decided not to call in the largest planning application that was ever dealt with, which was for a major regeneration site in the Wirral. The local authority is dealing with that, for whatever reason. There is a lot more discretion in that the Department works with the district councils, rather than taking applications off them. There is a balance to be had between the discretion and the certainty that comes along with this issue. There will always be issues about the criteria that are applied. I have just seen those criteria, so I have not had a chance to look at whether any issues arise from them.

166. The Chairperson: Last week, the issue of independent examination raised its head, and we went through that. You talked about the role of the PAC in determining the type of appeal or the type of hearing. The Assembly debated the PAC’s role and the question of independence and whether it provided value for money. In some areas, it has come up to the grade, but, in others, there is still a question of whether it is totally independent. Any member of the Committee who has been a councillor and gone through the appeal process knows that the PAC follows the same structures as the Planning Service. It is really only an assessment of a planning application, and it goes through the same process. Do you not feel that we need seriously to look at the whole issue of independence and whether the PAC is the body to make those decisions? What are you views about how that happens elsewhere and whether that is something that we need to look at?

167. Dr Ellis: I was not aware that there was a question about the independence of the PAC. My impression was that the PAC was seen as being relatively independent, particularly because its members are appointed by the First Minister and deputy First Minister. That is akin to the situation in the Republic of Ireland, where An Bord Pleanála is completely independent of the Department.

168. There are differences; the Minister here has maybe more control over some decisions compared with the Republic. However, the PAC is far more independent than, for example, the Planning Inspectorate in England and Wales, which is appointed by the Minister. There is always a difficult question: they are really acting on behalf of the Minister, so there is less independence in England and Wales.

169. That highlights an issue in this legislation, in that when there are major inquiries there may be a stress on the PAC as the body for handling appeals and inquiries. The legislation makes provision for the Department to appoint an independent examiner on different issues. A lot of people expressed concern about that during the consultation, because they thought that the PAC had the expertise and neutrality, and that that should be the issue. There is an issue whether there will be independence if the Department is appointing the independent examiner, or at least whether people will see it to be independent. That is a new provision.

170. The Chairperson: We will move one from that. Obviously a key issue for people, through the responses already received, is having the proper opportunity to consult and contribute as opposed to the process being just a talking exercise. Obviously, it is down to the criteria and what they are assessed against. If we go down the route of saying that the PAC is the body to do that, do we need to look again at the criteria and what they are assessed against?

171. Dr Ellis: The key thing is that if there is a public inquiry for a major development, the PAC will hold the inquiry. The report is then sent to the Minister, but is not binding. That is the provision that maybe needs to be looked at: whether that report is binding on the Minister.

172. The Chairperson: That issue also came up last week with regard to the PAC looking at a matter and its going back to the Department. We maybe need seriously to look at the whole independence of that, and whether it is correct.

173. Mr Weir: I have less of a problem with the independence of the PAC, but more with its efficacy. It probably goes to a wider issue with the PAC in that a lot of concerns were raised, particularly about major applications. There seemed to be the suggestion, certainly a while ago, that it could really handle only one at a time, and there were big long delays. I have a greater concern about that, rather than about the PAC being officially independent.

174. The Chairperson: I agree, and that is an important point. Now that we are looking at the issue, we need to ensure that the process is right.

175. Mr Weir: I agree. If we are looking at planning legislation, it would seem not to be sensible to look at the process of planning and planning application without also taking into account the mechanisms that are in place on the appeals side. The two are interlinked.

176. The Chairperson: I agree, and we need to look at that now during this process rather than wait, unless we can bring that in under secondary legislation. However, the question is open.

177. You mentioned awarding of costs. Should that be in the Bill?

178. Dr Ellis: I do not know. I am not a lawyer, and do not know whether that needs legislation. I would have thought that it does. If one aim of planning reform is to cut down delay, in some cases you can have an appeal for a delay for whatever purpose, and an award of costs might cut that down and speed up the system.

179. The Chairperson: Do you think that, if we roll out the secondary legislation, there is a case — and I am speaking in general now — that it will need to go to consultation, or can we include whatever we want on the face of the Bill, in the knowledge that secondary legislation will flow from it subsequently? As opposed to going down the road where we understand that we need secondary legislation, rather than getting into the whole process of consultation. Will we still need to consult on that, or is it an issue that we need to look at?

180. Dr Ellis: It depends on the issue. In terms of the award of costs, the Department has gone out to consultation. That was involved. All the other issues you would have to look at on a piece-by-piece basis. The Department has committed to some more work and consultation on a number of things, for example on third party appeals. That puts that off. There are some issues that it has highlighted.

181. Mr McGlone: I have read your paper. You refer to “pursuit of consistency" and provision of guidance for councils on when that should occur. As I read through elements of the Bill last night, and one of the things that intrigued me was the proposal by the Department for joint actions by councils. Those of us who have served on councils are always intrigued by the notion that some constituents draw this very issue to our attention: consistency in the application of planning policy between councils and the differences that they perceive exist in the interpretation of it. There should be guidance there already: it is called the policy. It boils down to interpretation.

182. I am even more intrigued where there has been the development of a joint policy between two or more councils, whether or not they are termed “local policies". That could add enhanced focus to the lack of consistency between councils. Councils might come to agreement on a policy, whatever it might be, but then go off to interpret it slightly differently. What is your thinking on that?

183. The guidance will only be as good as the people who interpret it. Essentially, PAC determinations usually lead to clarification and further determination of policies. However, those PAC decisions are also down to determination, because there can be slight nuances between individual decisions. Can you expand on how that should be done by the Department?

184. Dr Ellis: Under the new system, where most planning decisions will be made by district councils, one of the key roles left to the Minister is to ensure reasonable consistency. It becomes his prime role then. It is a matter of degree, because part of the emphasis of this Bill is to give local democratic control to district councils. That control will involve slight political interpretation of things.

185. We want to uphold the right of a council to take its own democratic decision on things, but we do not want it to act unreasonably. I would have thought that, if a council were acting more unreasonably than others with regard to a policy, there would be an opportunity for judicial review. While keeping democratic control of decisions, for acting against unreasonable decisions we are left with judicial review to uphold that.

186. Mr McGlone: That is precisely the point. The sorts of people that I represent by and large do not have the money to go to judicial review. That is for the people with the big coupons.

187. The second thing is that this needs more clarity and direction. We are moving from a situation where there are, potentially, six divisional planning offices and six interpretations to one where there are potentially 26 interpretations. That allows for a wider scope of interpretation, and that is a diplomatic way of putting it.

188. I would rule out judicial review for most cases. People just do not have the finance to do that. Young couples starting out in life are barely able to gather up enough to pay the mortgage, without thinking about judicial reviews which may or may not be successful. Do you agree that it is for the Department to build in a greater implementation of consistency, however it is done? From your academic experience, are there areas in which that is done? If so, how is it done?

189. Dr Ellis: Applicants always have the right to an appeal. One of the functions of an appeal is to make sure that there is consistency. If you are objecting and you think that it is unreasonable, there is no right to an appeal. A third party appeal can help with consistency if you are an objector to an application. The appeal and judicial review are really the only conventional mechanisms in planning for keeping consistency. There is the ombudsman as well, I suppose.

190. Mr Weir: Patsy is right. I suppose he is looking at it from the angle of the punter, for want of a better word. I would have thought that the significance of the judicial review in this process is less the actions that are likely to be taken by an aggrieved person and more the potential constraint that will apply to councils. If the advice that a council gets about taking a particular decision is that it will leave it open to judicial review, that is more of a constraint. Ensuring consistency while allowing a degree of variation for local circumstance is a very difficult circle to square, because of attitudes and the needs of an area. What happens in Magherafelt, the needs of people there and what is seen by its public representatives as being in its best interests from a planning point of view may vary from what happens on the ground in North Down. It is about trying to strike a balance between allowing for that bit of flexibility and having consistency. That will be very difficult to get absolutely right.

191. Mr McGlone: It will.

192. You rightly referred to the PAC. Another issue for some people is that, depending on the planning consultant, it can be a very costly experience. To broaden the theme of six divisional planning offices and how they interpret planning decisions, you move, in reality, to 26 councils at the moment. Therefore, there is the potential to have different levels of consistency multiplied. The PAC will be very busy in those circumstances.

193. Dr Ellis: There is a shift in almost the culture of the planning system because the Bill is trying to create local control. That may be a high democratic principle, but, as a result, there may be more accusations of inconsistency. It is about getting a balance. One person’s inconsistency is another’s local democratic control. It is the principle of putting it to the councils, and it is inbuilt in the legislation that, clearly, the members need to take a view. There may be ways of safeguarding that. The key element, in terms of inconsistency, is to have a very robust, well defined and evidence-based local policy. Some of the other papers talk about linking planning policies with community strategies. If that is right, the plan for Magherafelt should be right for that area, and the same for North Down. If the local plan process works as well as it should, some of these issues should go out. The whole thing is not about development management and plans; it should work as an integral system. That is the idea for how it would work.

194. Mr B Wilson: The Planning Service is totally biased in favour of development and against local communities, so I am very concerned that the third party appeals proposal has been left out. That was one way in which we could have redressed the balance. As far as I can see, there is nothing in this legislation that will help local communities that are objecting to planning applications.

195. My second point is that while in principle we all agree that planning decisions should be made by the local community and the local council, I am not clear how we will do that. The power will be given to the local council, but will that power be exercised by the full council? Will the council have a planning committee? What safeguards will there be to stop lobbying? We are lobbied all the time about planning applications, but we are only consultees, so it is not all that significant in the end because applications are dealt with under planning regulations.

196. However, if we have local councillors under tremendous local pressure from local developers, how will that be dealt with? How does that operate in, say, Scotland? How are councillors protected? I assume that when you go into a council meeting to hear a planning application you have no contact with the applicant before you deal with the application — you go in with a clean, clear mind, having no interest or bias. How can that situation be retained and protected? What safeguards are in the Bill to protect the integrity of the planning system?

197. Dr Ellis: Those things are generally not dealt with by planning legislation, but by local government legislation to do with probity, codes of conduct, expressions of interest and so on. That does not tend to be a problem in England, Scotland or Wales. There are not widespread accusations of corruption.

198. There may be an issue that third party appeals are a provision that members want to introduce as a safeguard or a transition, because people have to make a shift of trust to district councils. That might be an issue. With regard to going in with a free mind, what the legislation does that is new is to give the applicant an opportunity for a pre-determination hearing — to actually go to the council to put his case and say what he wants to do with the development.

199. That clause is a genuinely good idea, because councils will then be making decisions with a fullness of information. However, if you look closely at the Bill, it says that the council can exclude the public if need be. So, there may be something in that provision to keep openness, and that it is not just the developer who goes in to meet the council, but everything has to be public. At the minute, it is going to be at the council’s discretion who attends those meetings.

200. Mr B Wilson: Will the decision be made by the full council?

201. Dr Ellis: That, I think, is ultimately up to the council. The normal state of affairs is that a subcommittee deals with planning applications. In some circumstances, major developments might go to the main council or the issues of that subcommittee might have to be endorsed by the main council. So, it is really up to the council. In some cases, they have just a cabinet member dealing with planning.

202. Mr Weir: I may be able to shed a bit of light on that, because that was an issue when we were looking at some of the review of public administration stuff that was looked at by policy development panel A. Belfast City Council is in a slightly different situation with a planning committee. The difference between us and other parts of the UK that have used this, and used it reasonably well, is that they tend to have pretty large councils, and therefore they delegate planning to a subcommittee.

203. The problem is that once you have planning powers, you come into more or less a judicial position. As a councillor, you cannot get representations and meet applicants or objectors. You have to remain aloof from that process. Given the size of councils here, particularly on the basis of the 26, the great likelihood is that you would have full council sitting for planning.

204. If three Bangor West councillors were on the planning bit and could make no public comment on a planning application and could not meet objectors or an applicant, yet four of their colleagues could and were all over the local press, giving their views and winning local brownie points, there would effectively be a two-tier councillor system. My guess is that almost certainly, particularly because we do not operate a cabinet system in Northern Ireland, the entire council will be the planning authority so that all councillors are on a level playing field.

205. Mr B Wilson: We need a total change in culture.

206. Mr Weir: We do.

207. Mr B Wilson: As you say, once a planning application goes on to a schedule, the applicants and the opposition phone councillors. Months before the thing begins, we get more and more phone calls. That will have to stop.

208. Mr Weir: Councillors will have to say that they cannot take the calls, or whatever.

209. Mr B Wilson: The constituents are used to that culture —

210. Mr Weir: I appreciate that there is a massive change in culture, but that is basically what happens in Scotland and England. If a councillor is found to be having meetings or getting lobbied on an issue of that nature, they are disqualified from that decision because it is a potential breach.

211. Mr B Wilson: Is there anything about that in the legislation?

212. Dr Ellis: That will come through local government. It is for the councils themselves to decide how to handle that.

213. The Chairperson: It is all about a code of conduct and everything else. Key to all of that is the training and the resources that go to that. I take your point on board, Mr Wilson. Obviously, people will be concerned about that. If councillors were not MLAs and there were no dual mandates, that would be a starting point.

214. I want to seek some clarification about the call-in process, which you mentioned, Geraint, and what happens in other jurisdictions. Will you also expand a wee bit more on the completion notices and the timing of those?

215. Dr Ellis: I did not write the call-in bit of the paper; I am just presenting it. The easiest way to understand the call-in procedure is that, at the minute, the Department has what are called section 31 determinations. Think of the divisional offices as the local planning authority. If there is an application of major regional significance the Department will call it in. It will work on that basis. The difference now is that it goes to a different organisation with different political control. Are you looking for the criteria?

216. The Chairperson: In principle, that is fine. It is back to the independence issue and who makes the decisions and what the contributions are. It was only for clarification.

217. Dr Ellis: The idea is that if there is a major landfill or wind farm scheme or something, the local council might look at local interests, which might not be in the national interest. It is usually aimed at major infrastructure issues so that the Department will take into account the national interest.

218. The Chairperson: That is fine. What are your views on the timing of completion notices?

219. Dr Ellis: There are pros and cons, and the Department has come down one way. In the consultation, 69% were in support. The benefit is that a notice of completion will alert a local enforcement officer to check that the conditions have been satisfied and so on. At the minute, the planners do not know when it is finished. In a sense, there is no rigorous way of checking whether it has been built in accordance with planning permission. There may be other benefits as well, because it will certainly alert building regulations. Even any enhancement of business rates will then come from the completion notice. As a mechanism, it will specify that.

220. On the downside, it is another layer of bureaucracy. Reading between the lines, that is why the Department did not go for it. At the moment, they are not convinced that that bureaucratic element is outweighed by the benefits. However, it does point to a system working in Scotland, so that might be worth further examination. I do not know how it works in Scotland.

221. The Chairperson: Maybe we will find that out. We have to get the balance of power right. We will hand these powers down to local councils, and I have often said: “Be careful what you wish for". It is a big undertaking and we need to get it right from the start. How does it work in other jurisdictions? I know that in the South it is local councils, but consideration may be given to its going back centrally. Are there examples of how that balance has been got right or how it works?

222. Dr Ellis: It is normal in a European or worldwide context for local councils to have planning controls. In a sense, we are looking to move to a situation where people expect local democratic control. The difference here is that because there has been no tradition of that in the last few decades, there are questions over the capacity to do it. A colleague of mine will talk to the Committee specifically about capacity. My expectation is that it will work well when it is bedded down. There are clear lines of accountability and responsibility.

223. In the Irish Republic there is a different element in that planning officers have greater executive powers. The role of local councillors in the Republic is primarily to set the policy, which the officers then implement. That is one way to overcome questions about whether councillors have the capacity, and it is an element that the Committee might want to introduce.

224. The Chairperson: Obviously, Suzie, we have more research to go on a few elements. This is an important piece of work, so we appreciate that. Before we move to the next briefing, are members content for the research papers to be sent to the Department for comment?

Members indicated assent.

225. The Chairperson: Are members also content for the papers to be posted on the Assembly website?

Members indicated assent.

226. The Chairperson: OK, thank you. We now move on to a departmental briefing on the Planning Bill. Members have papers on planning functions and local development plans and a departmental reply on the timetable for subordinate legislation that will follow the Bill’s implementation. I welcome Maggie Smith, Lois Jackson, Irene Kennedy and Peter Mullaney. OK, Maggie, welcome back.

227. Ms Maggie Smith (Department of the Environment): Thank you very much.

228. The Chairperson: No doubt you were listening in with great interest.

229. Ms Smith: We were.

230. The Chairperson: Obviously, the research papers will go to you.

231. Ms Smith: Thank you very much, Chairperson. We have two papers, the first on development management and the second on enforcement, so we have thorough coverage of those aspects of the Bill. We will probably change cast between the two papers. Lois will deliver the development management paper. Would you prefer that we stop for discussion after that paper?

232. The Chairperson: We will do one paper at a time.

233. Mr McGlone: Do we not have copies of those papers?

234. The Chairperson: They are only speaking notes, and are in members’ packs.

235. Ms Lois Jackson (Department of the Environment): I will run through Part 3 of the Bill, which deals with development management. The new development management system represents, along with the new development plan system, one of the two central features of the reformed planning system. It will bring about a modernised planning application system that will be fairer, more predictable and efficient.

236. I will set out the main changes that we are bringing forward through the Bill under development management. The focus of development management is to deliver sustainable outcomes by encouraging earlier engagement on development proposals, promoting greater transparency and dealing with applications in a more proportionate way.

237. The hierarchy of developments is introduced in clause 25 and includes the categories of “regionally significant", “major" and “local" developments. For the purposes of the Bill, “major development" includes the category of “regionally significant development", which, in effect, forms the top slice of the “major development" category. That is dealt with by the Department under clause 26.

238. I refer you to the schedule that we forwarded in advance of today’s meeting, which identifies nine classes of development under the headings of “regionally significant" and “major" development. Those will be consulted on through subordinate legislation, but they give an initial view of the development categories and thresholds to be applied. “Local development" will comprise all other developments that do not fall into the “regionally significant" or “major" categories.

239. The categorisation of applications in the development hierarchy is intended to streamline the processing of applications so that greater resources can be targeted at those applications with the greatest economic and social significance. Decision-making processes will be tailored according to the scale and complexity of the proposed development in order to deliver decisions in a more predictable time frame. Councils will determine all major — other than regionally significant — and local developments.

240. Of note is the power for the Department to direct that a specific application that would normally be “local" be dealt with as if it were a major development. That builds a degree of flexibility into the hierarchy, where, for example, a “local" application that is just under the threshold of classification as a major development would benefit from the statutory pre-application requirements of community consultation. That will be referred to later today.

241. Regionally significant applications will be submitted directly to the Department. In order to make the process straightforward and easily understood, thresholds will be applied to development types. Those are identified in the schedule to which I referred earlier. If the proposed development exceeds the thresholds, the applicant must enter into consultation with the Department.

242. The Department will determine whether an application is regionally significant based on the two identified criteria, which are, first, whether the development is of significance to the whole or a substantial part of Northern Ireland, or, secondly, whether it involves a substantial departure from the local development plan. If the proposed development is considered to be regionally significant, then an application must be submitted to the Department. If, however, the Department is of the opinion that the development is not regionally significant, the application is instead to be made to the appropriate council and dealt with as a major development. Following the pre-application stage, regionally significant applications will be processed through either a public inquiry or a notice of opinion.

243. Clause 26 also introduces a new proposal for considering representations, whereby the Department can appoint persons other than the Planning Appeals Commission for the holding of a public inquiry or hearing. That will provide flexibility for the scheduling of inquiries or hearings, which will help speed up the process and overcome delays.

244. The nature and scope of a proposed development may raise issues of such importance that it is reasonable for the Department to call in a planning application for any such development from the district council — in effect, to take over the role of decision-maker. Clause 29 empowers the Department to make directions requiring applications for planning permission to be referred to it instead of being dealt with by the district council. It is important to state that the intention is to intervene or call in an application only under certain circumstances, not to cause unnecessary delay to councils in issuing decisions.

245. For that reason we are working on the basis that councils will be required to notify the Department, through a direction, about applications to which a Department or statutory consultee has raised a significant objection, or where the application consists of a significant departure from the local development plan. Again, that will be subject to consultation along with the subordinate legislation.

246. In addition, clause 56(1)(b) allows the Department to apply conditions to an application which is referred to it, instead of having unnecessarily to call in a planning application, where a condition would satisfy any of the Department’s potential concerns. The application will then be returned to the council. This allows an element of flexibility and greater expediency in dealing with notified planning applications.

247. In exceptional circumstances, the Department may give a direction to call in any planning application other than those notified to it, where an issue is raised that may be considered regionally significant. This acts as an important safeguard and is similar to that provided in the other jurisdictions. When an application is called in, the processing route will follow that of a regionally significant application submitted directly to the Department.

248. Clause 31 provides for schemes of delegation as a means of improving efficiency in the decision-making process. This will enable certain decisions, within the category of local development, to be made by an appointed officer of the council. Schemes of delegation will provide maximum scope for officials to determine straightforward local applications, thus ensuring that elected members can focus attention on more complex or controversial applications.

249. The Chairperson: Excuse me, Lois. For reference, gentlemen, obviously this paper is in the packs, but if you refer to the Planning Bill, the clauses and the explanatory memorandum are in it as well if you would like to refer to it as well. Thank you.

250. Ms Jackson: A safeguard is provided to allow the council to determine an application by itself which would otherwise fall to be determined by an appointed officer. That will provide some flexibility on a case-by-case basis. Where a decision is taken to refer an application to elected members in this way, the Bill requires a statement of reasons to be provided to the applicant.

251. New powers are introduced under clause 56 relating to statutory consultees and consultation on a planning application. The Department has acknowledged concerns that the current consultation process contributes to delays in the determination of planning applications. To create greater clarity and certainty, clause 56(1)(c) and (d) requires both councils and the Department to consult with the relevant bodies known as “statutory consultees" with regard to planning applications. The proposed list of statutory consultees, and the circumstances in which they will be consulted, will be set out in subordinate legislation.

252. In addition, clause 224 introduces a requirement for statutory consultees to respond to a consultation request within a prescribed period. It is intended to provide a proportionate time frame in subordinate legislation which will link time periods to categories within the development hierarchy. That is an important step in providing greater efficiency and timeliness in the decision-making process. Furthermore, clause 224 gives the Department power to require reports on the performance of consultees in meeting their response deadlines. That responsibility will inevitably highlight which statutory consultees are responding to consultation within the prescribed time frame and which are not.

253. In addition to speeding up the response of statutory consultees, the Bill introduces a change to the appeal period. The term within which an appeal must be lodged with the Planning Appeals Commission is reduced from six months to four in clause 58(3). That will give a greater element of certainty in timescales. The Bill also enables the Department to amend the appeal period through subordinate legislation if necessary.

254. That completes our presentation, aimed at familiarising members with some of the key aspects of development management provisions in the Bill. However, I must also say that fundamentally important to development management are the key provisions under community consultation which will be outlined to you later today. I welcome any questions.

255. The Chairperson: Gentlemen, do you want clarification on which are clauses it is before we ask any questions, or are you happy enough with the notes you have? Lois, you can provide clarification by reading out the clauses that you referred to. Can you do that quickly, please?

256. Ms Jackson: Certainly.

257. The Chairperson: Members can be following their files on the Bill.

258. Ms Jackson: It is clause 25, in relation to the hierarchy; clause 26, in relation to the Department —

259. The Chairperson: Just read them all down: 25, 26, 29 and so on.

260. Ms Jackson: Clause 56 is also referred to there; clauses 31, 58, 59 and 224.

261. The Chairperson: Thank you very much for your presentation. To be fair, we have many documents and papers, so just bear with us. There was talk of an Order in 2006 and of a plan-led system. When can we expect to see the Planning Bill up and running?

262. Ms Smith: The provisions will not be commenced until after the local government reorganisation Bill is made in the next Assembly. This Bill sets out the new planning system and prepares everything for the transfer of powers to councils. However, it will be the local government legislation that allows the powers to transfer. Importantly, that Bill will have the new governance and ethical standards arrangements, including the code of conduct for councillors. That is all being consulted on at the moment.

263. The Chairperson: So it is based on the governance as opposed to the number of councils.

264. Ms Smith: Yes, the governance has to be there first.

265. The Chairperson: Obviously, the reorganisation Bill will now be in the new mandate.

266. Ms Smith: Yes, early in the next Assembly. The policy is out for consultation, with the expectation that the Bill will be in the next Assembly.

267. The Chairperson: We have heard a lot about the PAC and its independence. I do not think that too many decisions will be overturned with a recommendation coming from an independent report from the PAC. There were questions this morning, and questions from the respondents, about the true independence of that. If we set up an independent group to assess an application, albeit on the criteria that are laid down at the minute, how can we assess whether the procedures are properly followed? If the Department decides to overturn that, can it be truly independent? What in the Bill will ensure that it is truly independent?

268. Ms Smith: The Bill provides for the continuation of the PAC and its functions. What is important is that the PAC is a legal entity that is completely separate from the Department of the Environment (DOE) and all the councils. It has its own functions to carry out in a particular way under the legislation and cannot be influenced directly by the Department or the councils.

269. The Chairperson: It could be questioned whether it is truly independent, given the record of one public hearing per year. We need to address that through the Bill and ensure that we have total independence.

270. The Bill refers to working across councils. How will that be conducted with regard to hearings? You have given councils scope to work together. If one council decided to pull out of a piece of work, what is in the Bill to ensure that that piece of work will not be lost?

271. Ms Smith: Is that in relation to the development plans, if two or more councils decide to work together to produce a joint development plan?

272. The Chairperson: Yes.

273. Ms I Kennedy (Department of the Environment): There are provisions to carry forward any work that has been carried out jointly. The Bill protects and retains work that has already been carried out.

274. Ms Smith: The general oversight powers that we talked about with regard to safeguarding will allow the Department to intervene at that stage and make sure that that work was carried forward.

275. The Chairperson: Right. We talked earlier about the award of costs. Why has that not been introduced? Where are we with that? There was an indication that they would be included in the Bill, and now it has been decided not to include them.

276. Ms Smith: The intention is to include the award of costs. We will propose an amendment to put that in.

277. The Chairperson: OK. Do you want to talk a wee bit about completion notices? We have only received the responses, and some of the issues are starting to raise their heads. I am trying to tease out as much as possible now. We want you to have all of the research papers so that we can comment and it will not be a case of going back over the same things. Have you had any sight of the papers yet? Issues would surely have been raised in respect of all of these matters through the original consultation. Has the Department, in its wisdom, decided to reconsider some of the suggestions or considerations?

278. Ms Smith: We have seen some of the papers that have been sent in, and we look forward to seeing the research papers that were discussed this morning. Would you like us to talk about completion orders?

279. The Chairperson: Yes.

280. Ms I Kennedy: In the consultation paper, we discussed notices of initiation and completion of development. There are other provisions in the Bill that deal with completion orders, which are a different mechanism to deal with a situation in which development has been commenced but not completed.

281. Notices of initiation of completion and development are a tool that is in place in Scotland. They require developers to inform the planning authority when they commence development, at stages during the work and when the development is complete. That is a relatively new provision in Scotland. We sought views, and, as Geraint mentioned, those were mixed. Those in favour thought that it would be a useful monitoring mechanism to see how a development is progressing. Those against thought that it added bureaucracy to the process, because a developer has to inform the planning authority when development commences and at agreed stages.

282. An interesting point that was raised by a number of respondents was the links with the building control system. Both of those functions will be with councils. There may well be opportunities to link the planning regime and the building control regime. We concluded that it would be useful to monitor what has been happening in Scotland, but at this time we do not propose to bring forward those notices.

283. The Chairperson: OK. You will have to forgive us for trying not to stray back and forward because there is that much to the issue. Some parts are linked to others.

284. Ms Smith: We understand.

285. The Chairperson: The Minister is not bound by the decision. As I said about the PAC, it comes as a recommendation. He can make his own decision. Ultimately, somebody has to make the decision, but we need to ensure that the process is being followed, that it is not just a talking shop and that people are allowed to submit whatever it is in terms of a hearing. It is something that we need to look at. The issues are only coming out through the responses that we have been getting. I want more clarification. I have a note about major development and the hierarchy, but obviously the respondents did not have the opportunity to see that. We have had the opportunity to break that down. Is that correct?

286. Ms Jackson: We consulted on the categories in the formal consultation paper, but the subordinate legislation will firm up our proposals. We took on board all of the comments that we received during the consultation to get to this stage.

287. The Chairperson: OK. We are running short of members.

288. Mr McGlone: Maybe you will forgive me; I will start at the beginning of the Bill and work my way through rather than ping-ponging back and forward. Clause 1 refers to:

“general conformity with the regional development strategy".

289. Where is that at the moment? I know that it was, how shall I put it, a bit loose. That is the first thing. Bear with me, Chairperson.

290. The Chairperson: On behalf of Mr McGlone, we are getting that sort of problem back and forward. We will bear with it and see.

291. Mr McGlone: I am just starting at the beginning and working my way through.

292. Ms Smith: May I make a substitution? Would you mind awfully if Angus came forward?

293. The Chairperson: Yes, certainly.

294. Mr McGlone: You are off the bench, Angus.

295. Ms Smith: Angus is the expert on development plans, so he is the best person to deal with your questions on the early part of the Bill.

296. The Chairperson: I am mindful, gentlemen, that we went through this last week, but we will quickly go back through it again.

297. Mr McGlone: There are major issues at stake here.

298. The Chairperson: I totally agree.

299. Mr McGlone: The English of one bit absolutely intrigued me. Maybe, Angus, this is the difficult one, and this could be a penalty kick and you are not the goalie. Clause 2, “Preparation of statement of community involvement by Department" — sorry, it is not that one.

300. The Chairperson: Bear in mind that we are doing community involvement in the afternoon session. I understand, Mr McGlone, and I will certainly allow some scope with questions. However, if there is stuff that we are doing later on, we will certainly bring that up, but we just have to listen to what the question is going to be.

301. Mr McGlone: That is OK. I will take only a minute to ask it uninterrupted. Clause 6(3) states:

“If to any extent a policy contained in a local development plan conflicts with another policy in the local development plan the conflict must be resolved in favour of the policy which is contained in the last development plan document to be adopted or, as the case may be, approved."

302. I seriously do not know how you could ever contextualise or explain that, Angus. Maybe it is for another day, but as I was reading this last night I was saying to myself, “What in God’s name is that talking about?" Presumably, when a development plan has been approved and gone through the consultation exercise, everything else is going to be compatible within it. Anyway, I will just park that one.

303. How are local policies plans going to be compatible with regional policies? Just for clarity, presumably clauses 15 and 16 apply solely in circumstances when the Department does not agree with, or finds issue with, development plan proposals. It is just to get that clear in my own mind.

304. There are issues around joint plans, just to get a wee bit of a handle on what those joint plans might do. That is clause 17. Clause 17(5)(a) , (5)(b) and (6) also require a wee bit of explanation for me. Forgive me if I am a wee bit thick on stuff such as this, but these are just issues that popped up at me last night when I was reading through this.

305. Clause 27 is community consultation. I will leave this one until later, but maybe you could make a wee not of it. Clause 27(6) states:

“The council may, provided that it does so within the period of 21 days after receiving the proposal of application notice, notify the prospective applicant that it requires (either or both)".

306. “It" being the notification, I presume. I do not know.

307. Can we move on then, please, to the issue of safeguards that was referred to earlier, and we are moving into the pre-application community consultation and all that sort of stuff. It is extremely important that the Committee sees any equality assessment or human rights assessment that has been carried out. I am not talking about a tick-box exercise, but the full detail of all of this, because that has major implications. We touched on some of them this morning, namely, the role of councillors, the issues that that could take us into, and the safeguards that are required. I accept the issues that officials are here for today, but the whole reform of local government has to be inextricably tied in with this. In many ways, we are getting the cart before the horse. The reform should have been carried out with adequate safeguards before we even move on to the functions that are before us today. Perhaps members will agree that we should get access to the equality impact assessments that were, presumably, carried out. Is that OK, Chairperson?

308. The Chairperson: Yes.

309. Mr McGlone: Can I get some explanation of local development “schemes of delegation"? What is that? Are we dealing with simplified planning zones today? I am just working my way through the Bill as it meets me.

310. Ms I Kennedy: We propose to talk about those briefly on Thursday.

311. Mr McGlone: I will leave that stuff until then. There is some unusual stuff there.

312. On clause 38, I am thinking of national parks, for example. I am sure that Mr Clarke will be talking to me today and is well aware of the issues around that. I am thinking of a national park where, conceivably, certain development or land types cannot be zoned, for instance, in a village or in what could be interpreted as a village, and how the development plan would correlate to that where, for example, there is the designation of a national park.

313. Clause 38(2) states:

“Where land included in a simplified planning zone becomes land of such a description, subsection (1) does not have effect to exclude it from the zone."

314. What if it expires after 10 years? There is a 10-year thing around that. In other words, if that simplified planning zone falls, are we back to square one where it may not, in fact, be renewed?

315. Are we dealing with clause 39?

316. The Chairperson: We have tied the Bill into parts, and Mr McGlone is asking about specific clauses. Whatever you were prepared to talk about today, will you indicate whether you can answer today or the next day?

317. Mr McGlone: I am happy enough to wait for the answers.

318. The Chairperson: As long as you indicate.

319. Ms Smith: Our quick conference was to confirm that it would be better to talk about simplified planning zones on Thursday. We can give more time to it then.

320. Mr McGlone: Does that also include the enterprise zone stuff?

321. Ms Smith: Yes. We can shape our presentation —

322. The Chairperson: Queen’s has done the research in blocks for us. We are trying to stick to that, but there are valid questions to be asked. Please indicate when we are dealing with them.

323. Mr McGlone: Are we dealing today with the form and content of planning applications?

324. Ms I Kennedy: No. We propose to go through the remaining provisions of the Bill on Thursday. We are concentrating today on the new provisions in relation to certain topics.

325. The Chairperson: The topics are development management, planning control, enforcement and community involvement.

326. Mr McGlone: Are we dealing with clause 44?

327. Ms I Kennedy: No.

328. Mr McGlone: Right. It is just that starting at the beginning of the Bill and going through it is a wee bit —

329. The Chairperson: That is why I asked you to highlight the clauses that we were dealing with.

330. Mr McGlone: Clause 47, Irene? No?

331. Ms I Kennedy: No.

332. The Chairperson: Will you clarify again the clauses that you are dealing with?

333. Mr McGlone: What about clause 54?

334. The Chairperson: Just read them out, please.

335. Ms Jackson: The clauses that I am looking at under development management —

336. The Chairperson: The topics are planning control, enforcement and community involvement. Can you please read out all of the clauses that we are dealing with today for the benefit of the members?

337. Ms I Kennedy: Lois, perhaps you want to read the development management clauses that we are looking at today.

338. Ms Jackson: Clauses 25 to 28 will be dealt with later today. Clauses 29 to 31 — basically everything under development management.

339. Mr McGlone: So, probably not everything.

340. The Chairperson: We are also looking at clauses 58 and 59. Have you got all of those clauses, Mr McGlone?

341. Mr McGlone: We will leave those until later on.

342. The Chairperson: Now the valid clauses that Mr McGlone asked about.

343. Mr McGlone: Sorry about that. I was just dealing with reading the document, rather than jumping about the place.

344. Mr Kerr: Do you want me to come back on some of the points on the earlier one?

345. The Chairperson: Yes, on some of the clauses that we have been dealing with today, and we will deal with simplified planning zones on Thursday. Deal with the clauses on which Mr McGlone specifically raised questions.

346. Ms Smith: Are you content if Angus deals with the issues that concern the development plan and then we move on and deal with development management?

347. The Chairperson: Yes.

348. Mr Kerr: The first issue that Mr McGlone raised was the situation with the regional development strategy. There will be an ongoing requirement for the Department to ensure that its plans, policies and guidance are in general conformity with the regional development strategy. That means planning policy statements (PPSs) that are prepared by the Department once the functions transfer. The requirement on the councils will be that they must take account of the regional development strategy when they prepare their new local development plans. That is a slight change from the current position, where the Department prepares local development plans and has to be in general conformity with the regional development strategy.

349. There are a number of reasons for that change. First, as some members will be aware, there were difficulties with the conformity issue in development plan inquiries in the past. There was a judicial review of the Ards and Down plan over the issue, and there is a lot of concern about the definition of that and how it works in practice through inquiries. The two Departments wanted to look at that in any case.

350. Secondly, there was a desire to have a relatively simple system for councils in the future so that, if they were preparing a plan, they would not have to have recourse to different Departments, going to Regional Development about the regional development strategy and maybe being told something different by Environment. Therefore, the idea was to come up with a simple, standard approach that will take account of where it came into effect. When councils are doing their plans, they will have to take account of the regional development strategy, PPSs and other central government plans, policies and guidance. In that sense, the move was twofold.

351. Mr McGlone: Will they still have to comply with it?

352. Mr Kerr: They will have to take it into account, yes. The two Departments have agreed that some guidance will be set out for councils showing clearly what they must do to show that they have taken it into account.

353. Mr McGlone: When is that guidance likely to be available, Angus?

354. Mr Kerr: The plan is to have that available for the transfer of functions. We are currently working on that in the background.

355. Mr McGlone: When did that work start?

356. Mr Kerr: It started with the preparation of the Planning Bill and the negotiations between the two Departments on how we would handle the regional development strategy in the future.

357. The second issue that you raised was the rather complicated wording in clause 6(3). We are now splitting the development plan into two bits, the plan strategy and the local policies plan. The idea behind clause 6(3) is to look forward to a council having both of those documents in place and looking to prepare a new one in, for instance, 15 years’ time. That would mean that there was the existing plan strategy and local policies plan and a new plan strategy, prepared by the council. That subsection clarifies that the new plan strategy overrides the old one to the extent that it covers the issues in the old one. However, the old local policies plan still applies.

358. Mr McGlone: To be honest with you, Angus, the Bill is not very clear on that. I could read that a couple or three ways and still make no sense of it.

359. Mr Kerr: Yes, it is a complicated system to try to deal with the fact that we have the two-stage plan.

360. Mr McGlone: I understand the system. It is just that that wording does not make it at all clear.

361. Mr Kerr: If a policy in a local development plan conflicts to any extent with another policy in a local development plan, the conflict must be resolved in favour of the policy that is in the last development plan document. That is to clarify that the most recently prepared development plan document is the one that —

362. Mr McGlone: That should have already been in that.

363. Mr Kerr: In what way?

364. Mr McGlone: If that was not part of the strategy, should it not have already been in there? Should it not have been incorporated into that local development plan?

365. Mr Kerr: You will have a local development plan with a plan strategy and local policies plan in place. The issue is just when you are coming to bring forward a new one. There could be the potential for an existing plan strategy that has been through all the processes and been adopted, and the council is then working on a subsequent plan, their next one, for the following 15 years. That is to clarify that that plan would have a determinative weight.

366. Ms Smith: We need to tease that out in the guidance to make it clear to people.

367. Mr McGlone: It is not clear at all, to be honest.

368. Mr Kerr: It is quite convoluted wording.

369. The Chairperson: I remember asking at the last presentation about existing plans and how those will impact on new councils, whether in this format or the 11-council model. A body of work is already done on that. We just need to be clear about the challenges. Obviously, things have changed over time. We said that the review process is for five years. Is it?

370. Mr Kerr: That is correct.

371. The Chairperson: That needs to be clear, and clear guidance needs to be given to councils on that.

372. Mr Kerr: The next point was about clause 9 and the issues that the local policies plan has to be compatible with. The first key thing is that they have to be consistent with the plan strategy that has been prepared. They also need to take into account the regional development strategy, and policy or advice in guidance issued by the Department, and any other matters that the Department prescribes. Does that clarify the point?

373. Mr McGlone: How is that different from what exists in policy at the moment? Take the concept of a local policy plan: how is that so different from what already exists under the hierarchy of different types of developments and provisions that can be made under existing policies?

374. Mr Kerr: Do you mean comparing it with development plans that we do today in the Department?

375. Mr McGlone: If you like, the hierarchies or different concepts of development that are already in those development plans. What is new about that local policy plan other than just a term? You are the professional.

376. Mr Kerr: It is not a massively new concept. At the moment, our development plans have elements of the plan strategy. There are then local policies plans — the zonings and detailed design criteria that we have in existing plans. The legislation formally separates those out to enable the development plan process to be faster. The idea was not to wait for the whole thing, which takes a long time to process, and then taking the whole thing through independent examination. There are clearly two elements to the plans that we do anyway, the more strategic stuff and the local stuff. Why not just separate those out, take the first strategic stuff through quickly and get agreement on that, and let that inform the local policies plan, which will then follow up with all the details?

377. Mr McGlone: Does that mean that you do not have a conflict?

378. Mr Kerr: That is why it has to be consistent with that.

379. Mr McGlone: Back to the original point.

380. Mr Kerr: Your next point related to clause 15. Intervention is an opportunity and a safeguard for the Department to be able to intervene and issue a direction if something in a plan needs to be changed. There are also default powers in the following clause whereby the Department can come in and take over plan preparation.

381. You wanted to know how the joint plans will work. Essentially, clause 17 gives councils the opportunity to work together in the preparation of a plan, if they so wish. Councils can work together either at plan strategy level or on both the plan strategy and the local policies plan. Clause 18 gives the Department the power to require councils to work jointly. As Maggie said earlier, there are also detailed provisions to deal with situations in which councils have problems working together. If, for example, one council decides that it does not want to do it anymore, there needs to be a way to take forward work that has already been done.

382. Mr McGlone: I am intrigued by that. Say that you had two councils with two different area plans or local development plans at different stages of advancement. Are the joint plans to introduce concepts of where there is coterminosity, say to introduce a development? Conceivably, you could have one part of a village in one district council area and the other part in another. How would you ensure compatibility with your local plans if one area plan or development plan is at a different advancement to another?

383. Mr Kerr: The idea is that it will be agreed by the two councils and that they will get together and prepare a plan that covers a town that is separated in some way by the boundary. That will be the planning framework or the local development plan for that area. The previous plans prepared by the Department — or, in the future, by different councils — will cease to apply once the new joint plan comes into effect. The old ones will apply until the new plan comes into effect, so there should never be any confusion or a time when there is no coverage. As with all these provisions, regardless of the situation with existing DOE plans, councils will have the opportunity to go ahead and prepare a local development plan as soon as the powers are transferred. That local development plan, whether prepared by one council or a joint plan, will override the DOE plan as soon as it is adopted.

384. Ms Jackson: You mentioned the bits that I am dealing with and asked for clarification of clause 27(6). Angus is going to talk about community involvement, but, since you mentioned it:

“The council may, provided that it does so within the period of 21 days".

385. “It" refers to the council or planning authority’s request of the applicant.

386. You wanted more information about the schemes of delegation under clause 31. Essentially, each council will have to draw up a scheme of delegation saying what types of local application can fall under it. It will only apply to the “local development" category. That applies to all applications that sit outside major or regionally significant applications. Therefore, the majority of planning applications will fall under local developments.

387. A council can indicate what types of local development it intends to include in the scheme. This will be set out in subordinate legislation, as the purpose of subordinate legislation is to clarify this level of detail. There are couple of things that we will insist that councils not include in a scheme of delegation: applications made by a district council itself or an elected member of the district council, or that relate to land owned by the district council or in which the district council has an interest. That acts as a safeguard.

388. So, it really applies to any type of local development application when an appointed officer, who in the majority of instances is likely to be a principal planning officer, can sign off a straightforward, uncontentious planning application without having to go to a committee or full council. That is the purpose behind that. It is a follow on from our current streamlining.

389. The Chairperson: Did we ask about clause 31?

390. Mr McGlone: Are we coming back to that one?

391. The Chairperson: Councils and respondents are asking about subordinate legislation and guidelines now. I know that you cannot predict exactly what will be there, but you have a fair idea of what you need to do to incorporate whatever it is and to transpose that.

392. Ms Jackson: Yes, the details.

393. The Chairperson: So, the sooner we get the guidelines, the sooner we get the subordinate legislation. Then they would then have been able to respond and say how you would deal with local plans, development and everything else. It is not just about land use but about place. That is what you were saying about the joint plans. That is a key element of it all. Is that you finished, Mr McGlone?

394. Mr McGlone: Will we be coming back to the issues around clauses 36 and 38?

395. Ms Jackson: Yes, absolutely.

396. Ms Smith: On Thursday.

397. Mr McGlone: Thank you, Chairperson.

398. The Chairperson: No problem. That is fine, Mr McGlone, you are welcome.

399. Mr Dallat: Chairperson, I am sure that you will be pleased to know that at this stage I am suitably confused, and God knows what the public will feel like when this finally gets their length. Is there any organised method to what we are doing here?

400. The Chairperson: OK, just to clarify: we asked the research team to break the Bill down into clauses that are related, and that is what they did. We went through parts 1 and 2 last week. I afforded Mr McGlone an opportunity to ask questions on parts 1 and 2 that we should have asked last week. However, it is a big Bill, and we need to look at it. It is as simple as that. I have no problem going back over it.

401. There are inter-related issues, but it is not as simple as us lifting a 240-clause Bill and going through it clause by clause, because they are related. We asked the university team to break it down into planning control and enforcement, parts 1, 2, 3 and 4. We then asked for people to come along and speak on those points. I am trying to stick to questioning them on those points. If members are unsure, however, or want to ask about a certain clause, I will allow them to indicate whether we are discussing that clause today or on Thursday.

402. Bear in mind that we went through the first 20-odd clauses last week, plus a few others. Unfortunately, Mr Dallat had to go to another meeting last Thursday afternoon, and I will afford some scope for that. However, I would like those responding to say “We will deal with that", and if there is anything else that we need to tie up today, we will do so.

403. We are now going through part 3, having done parts 1 and 2. However, members are certainly entitled to ask whatever questions they want, and we will try to provide clarification.

404. Mr Dallat: I just got a note to meet the Croatian ambassador. I am sure that that will be a lot simpler than being here. I really do not understand what is going on. Maybe privately I will get some tuition. I really do not know. I despair for the public, who will eventually get this as a product in improved planning. Where has the campaign for plain English gone? This might as well be an excerpt from Chaucer. That is terribly negative, but I was going to ask simple questions such as how to define “major" and “local" issues.

405. The Chairperson: Yes, that is on today. That is correct.

406. Mr Dallat: The question really is: how can you define something that is major and something that is local? For example, I would see a new factory employing 1,000 people — if only — as major, and not a problem. However, what about a landfill site planted in the middle of an area of outstanding natural beauty? Would that be treated as local?

407. Ms Jackson: I am not sure whether you have seen the schedule, which sets out what we have classified as major development applications.

408. Mr Dallat: No.

409. Ms Jackson: We circulated that to you last week. I understand your point about the clarity of description.

410. Mr Dallat: I need a copy of that badly.

411. Ms Jackson: Yes. That will —

412. Mr Dallat: Now, just one other wee question, Angus —

413. The Chairperson: Excuse me, but there is a definition of what is “major" in members’ information packs.

414. Mr Dallat: Exactly; that is why I am asking the question.

415. Ms Jackson: There are nine categories of application in the schedule. Number 9 is “all other development". Essentially, that is a catch-all for different types of development that are not in the other categories.

416. Mr Dallat: All right, thanks. When will we have an opportunity to discuss the relationship between, for example, the Planning Service and the Roads Service? Does that fit into this paper somewhere? You will be aware that there are major problems and all sorts of little power games played between the Planning Service and Roads Service. The Planning Service gives an indication to approve something; Roads Service takes the hump or whatever you call it these days. I am sure you must know that there are suggestions that that element of Roads Service should be integrated into the Department of the Environment. Those are the sort of things that I came here to discuss.

417. The Chairperson: That is fine. To my thinking, the list of consultees has not changed during the whole process, and you are entitled to ask questions. There have been problems, and those clearly need to be ironed out.

418. Ms I Kennedy: We have already mentioned the provision in the Bill that deals with consultation arrangements — the duty to respond to consultation.

419. Mr Dallat: I fully appreciate the work that has been done; do not get the impression that I am trying to rubbish it or dismiss it in any way. I just feel that I am surrounded by a forest of paper. I really want to make a positive contribution but at the moment I am inundated.

420. The Chairperson: I totally agree. I propose to sit down after and talk to the staff and see. We broke the Bill down as best we can. It is a big Bill, and we have limited time. There are certain questions for today’s session. If there is any other information, Mr Dallat, you will certainly be given it.

421. Mr Dallat: OK.

422. Mr W Clarke: Sorry for being late. I was in the Chamber for the debate on the Dogs (Amendment) Bill. I want to ask about major developments, and you probably touched on that when I was out. What involvement do the local plans have with major development, especially the council and community aspect of that? Can you give me a bit of a flavour about how that rolls out? What is the process for major developments? Can you go to an inquiry straight away? Have you that option, or does only the Crown have that option?

423. Ms Jackson: The major development category is essentially applications that will be dealt with by the new councils. Those are the significant applications that councils will be dealing with. One reason for having the hierarchy to identify those different tiers is for the purpose of community consultation. That is as important as anything else in defining a major development.

424. If your planning application is above the level indicated under “major", you will be required to consult the community. That then sets a trail of pre-application requirements that will be statutory, for example, submitting notice to the planning application, having a public meeting and so on. The logic and reasoning behind the hierarchy is so that there will be no query in a proposed applicant’s mind, or, indeed, in the mind of the public, who will know when they see something advertised that is over one of those thresholds. The proposals have been pitched at that level so that they will require consultation.

425. Mr W Clarke: I appreciate that. As the Chairperson said, it is a vast amount of stuff to try to take in along with the rest of the business. It is very difficult to get our heads around it. We only got these packs yesterday, so the opportunity to take in what people said during the consultation has been very limited.

426. A big issue with most developments is that they are very slow. I think that we are all trying to improve them. I agree entirely that community involvement will hopefully speed up all of that. Can you explain “major" and “regional"? It is all here somewhere.

427. Ms Jackson: We have used the same categories for the regionally significant applications, but the thresholds are higher. In other words, if a housing proposal contains anything over 500 units, the developer should consult the Department initially. The Department is the first port of call. It has the discretionary judgement as to whether to treat that application as regionally significant, if it raises implications for the region as whole or is a substantial departure from one of the development plans. The Department will then take over the role of decision-maker from day one, including the pre-application stage and the application stage.

428. If the Department serves notice that the proposal has been assessed and is over the threshold that is identified but is not considered to be of significance to the region or a substantial part of it, the proposal will be referred to the local council to deal with as a major development. The planning authority essentially consists of the Department and the local council, so it is important for the applicant to know who to go to in certain circumstances.

429. Mr W Clarke: Were third party appeals discussed?

430. The Chairperson: That is coming later.

431. Mr W Clarke: What about enforcement?

432. Ms I Kennedy: That will be discussed shortly.

433. Mr W Clarke: What about sustainable development?

434. The Chairperson: That was last week.

435. Mr W Clarke: I think that that went over the top of us all. We need another session to look more closely at that. A number of people, during the consultation, said that the green infrastructure and climate change elements are very weak. Energy planning and well-being should be at the heart of planning. I had to leave early last week.

436. The Chairperson: That is fine.

437. Mr W Clarke: Those issues should drive plans, instead of the other way about.

438. The Chairperson: I understand. We have clearly outlined a way to go to try to work our way through in a limited time. We will go through informal and then formal clause-by-clause scrutiny. Mr Clarke is right: more issues have been highlighted in the responses that we have received. The Committee needs to look at those issues. They may be included and they may not. Members only got a chance to look at those yesterday. Like I said, we are getting briefings now and we are gaining a better understanding of the Bill. We can ask specific questions once we commence informal clause-by-clause scrutiny, but we will keep at it. I will not stop any member from asking questions at this point. Last week, we ended up with three members to discuss Part 1 and Part 2 at the end of the day, but I am prepared to go on with it.

439. If members need any other briefing on the matter, we will certainly go down that route. The staff and the research team have put in a lot of work, as has the Department. It is not for me to tell people what they should do with the papers, but a format is clearly outlined. If members need any more information, we will certainly facilitate that. That is the way I am prepared to go. Sustainability is a big issue. Maggie, you and your team are aware of all that in the responses, so we will look at that.

440. Mr W Clarke: Will members, if they wish, be able to get a briefing on the sustainability aspect so that they understand it better? That whole health and well-being drive happened in Wales to tackle obesity. There is also all the green infrastructure stuff, and community and infrastructure levies.

441. The Chairperson: We can certainly ask to go over that again. When we get a chance, over the next week, we will notify you, and we will clarify any points if we need to. Are you happy with that?

442. Ms Smith: Yes, absolutely. Some of the issues — community levies — are getting outside the scope of the Bill, but we are happy to talk about that at another time. However, would you like Angus to say a few words about the sustainability aspects of the Bill, just to recap?

443. The Chairperson: I am mindful that a couple of members want to speak, and we also have to hear the briefing about enforcement. However, if you are brief, please do.

444. Mr Kerr: I will be brief. The duty to take sustainable development into account applies both to the Department and to local councils in the preparation of their local development plans. There is also the wider duty in the recent legislation that the Office of the First Minister and deputy First Minister brought through on all public authorities to take sustainable development into account. That sustainable development bedrock is behind the planning system being brought in by the Bill.

445. There is also a new requirement in the Bill for sustainability appraisals for every local development plan. That requires councils to assess their plans against sustainability criteria to make sure that they have complied with that duty.

446. Mr W Clarke: I appreciate that, and we will come back to that issue.

447. The Chairperson: We certainly will.

448. In terms of completion notices, we have to take due account of the economic situation if people are not able to comply or fulfil their commitment in the time frame. Are we considering looking at that?

449. Ms I Kennedy: A number of options are open to someone who has a permission that is live. They may wish to commence it or apply to renew it. Is that the context that you are thinking of?

450. The Chairperson: I am talking in general, from small applications to large. You used to be able to renew. Perhaps we could look at that and give some weight to the current economic situation. It may not be a case of needing to put that in the Bill, but that is certainly something that we could look at.

451. Ms Smith: That is more an application or operational issue rather than something that would go into the Bill. I think I am right in saying that there is flexibility with regard to renewal.

452. Ms I Kennedy: Yes, and every applicant can make that case.

453. The Chairperson: A wee bit of common sense, in other words. We also need to look at the assessment of the Department’s performance. I am not looking at you specifically; I am just saying. In general, there has been a lot of criticism, all because of the delays in the process. There are a lot of reasons for that, and everybody has to take responsibility. However, with regard to the Department itself, will you look at the performance assessment process, or is that in the scope of the Bill?

454. Ms I Kennedy: The Bill certainly contains provisions, which we will talk about on Thursday, that deal with the assessment of a council’s performance. We have to bear in mind the context. Are you thinking of the Department’s performance currently or in relation to its future functions?

455. The Chairperson: If that power is going to be devolved, we need councils’ performance looked at. However, the Department plays a significant part and also needs to be looked at. I totally agree that there needs to be a mechanism to assess the performance of councils.

456. Mr Kinahan: I am sorry that I was not here when you started; forgive me if I raise an issue that has been discussed. My first query is about consulting with the community.

457. The Chairperson: We are doing that in the afternoon.

458. Mr Kinahan: OK. My second query is about where the legislation states that powers will be delegated to individual planning officers to make decisions on specific types of application. If councillors are unhappy, is there a review system?

459. Ms Jackson: Yes, and there is the possibility for councils to deal with an application which would normally sit under a scheme of delegation if it wants to look at it on a collective level. The council has to give reasons why it is doing that.

460. Mr B Wilson: I come back to my concern that the Bill reduces the rights of objectors in particular planning applications. There seems to be nothing in the Bill that states that objectors have the right to be represented, or at least very rarely. Have objectors got rights at pre-determination hearings, and how are those rights enforced?

461. Ms Jackson: I think that we are looking at that this afternoon.

462. The Chairperson: We are dealing with this issue in the afternoon.

463. Ms Jackson: That is under the issue of community involvement.

464. The Chairperson: Third party right of appeal.

465. Mr B Wilson: It is beyond that.

466. Ms Jackson: There is an opportunity for objectors at pre-determination hearings.

467. The Chairperson: We will deal with that in the afternoon. We come to the issue of enforcement.

468. Ms Smith: Irene will introduce the clauses that are of particular interest.

469. The Chairperson: Yes, please clearly indicate what clauses it is.

470. Ms I Kennedy: We are essentially looking at Part 5 of the Bill, but focusing on the new provisions, so we will be looking at clauses 152-154 and 172. We will also refer back to other provisions that have an impact on enforcement: clauses 104 and 48.

471. The Chairperson: OK, gentlemen, do you have all those clauses written down?

472. Ms I Kennedy: Members will be aware that enforcement action may be taken where development has been carried out without the requisite grant of planning permission or consent, or where a condition attached to planning permission or consent has not been complied with.

473. Currently, the Department carries out all enforcement functions under Part 6 of the Planning (Northern Ireland) Order 1991. Part 5 of the Planning Bill transfers to councils the powers to enforce against planning breaches in their areas. Councils will be responsible for enforcement for all breaches of planning control. However, the Department will retain powers to issue an enforcement notice, listed building enforcement notice or stop notice. Those are in clauses 138, 157 and 150. That will take place where, after consultation with the district council, the Department considers it necessary to do so. In addition, the Department will retain powers relating to the issuing of such notices. Those are in clauses 175 and 176.

474. All enforcement functions delegated to councils will be restricted to their council area. The Department’s powers will cover all council areas. The Bill also introduces powers to strengthen enforcement in the planning system. Clauses 152-154 introduce the use of fixed penalty notices as an alternative to lengthy prosecution through the courts where an enforcement notice or a breach of condition notice has not been complied with. They give a person the opportunity to pay a penalty as an alternative to prosecution. The use of fixed penalty notices provides a more cost-effective, less time-consuming and more flexible means of enforcing the legislation. The short, sharp remedy is a proportionate and effective response in line with the Department’s better regulation agenda.

475. The amount of the penalty will be prescribed in regulations and is reduced by 25% if paid within 14 days. The amount of the penalty has not been determined at this stage. Regulations prescribing the amount must be laid in draft before the Assembly and approved by a resolution of the Assembly. The amount should be set high enough to be a deterrent, but there is a balance, as councils can offer discount for early payment. Members may wish to note that in Scotland the penalty is set at £2,000 for fixed penalty notices in relation to failure to comply with the requirements of an enforcement notice and £300 for a breach of condition notice. The new powers will enable councils to use the receipts from fixed penalty notices for the purposes of enforcement functions or other functions specified in regulations.

476. I will move on to clause 172. Currently, an applicant can apply to the Department for a certificate of lawful use or development to establish whether the existing or proposed use or development of land is lawful for planning purposes. If the Department refuses a certificate or fails to give a decision within two months or an extended period agreed with the applicant, the applicant may submit a planning application in respect of the development or appeal to the Planning Appeals Commission. Unlike other forms of appeal there is currently no time limit for making such appeals. Clause 172 introduces a time limit of four months for lodging a certificate of lawful use or development appeal, or such other period as may be prescribed. That provides a time limit for such appeals in keeping with other time limits.

477. It may also be helpful to highlight other provisions in the Bill that deal indirectly with enforcement. Changes have been made to the power to decline to determine planning applications that are available to councils and to the Department. Currently, it is possible for the Department to decline to determine subsequent or repeat applications where it is considered that an application is the same as one that has already been processed by the planning system, either by the Department or the Planning Appeals Commission, within the previous two years. Overlapping applications, where an application is determined to be the same as one already in the system, may also be declined.

478. Those powers are contained in clauses 46 to 49 and are expanded to include the situation in which a deemed application exists on foot of an appeal against an enforcement notice. When such an appeal is made, the appellant is deemed to have made an application for planning permission, which is then determined by the Planning Appeals Commission. Currently, someone appealing against an enforcement notice can make a parallel application for permission for the same development. That is done even though the parallel application is likely to be refused, on the basis that enforcement action is likely to be delayed until the subsequent application has run its course, including an appeal process. The rationale is to attempt to use the parallel application as a stalling tactic to allow a breach of planning control to continue. Allowing a council to decline to determine such applications will close off that potential stalling tactic.

479. Clause 104 also clarifies the position regarding the demolition of unlisted buildings in conservation areas. It has always been departmental policy that demolition of unlisted buildings in conservation areas without consent should be an offence. A legal ruling removed partial demolition from within the definition of demolition and reclassified it as structural alteration. Thus, partial demolition of an unlisted building in a conservation area no longer requires conservation area consent. In turn, unauthorised partial demolition is no longer a direct offence. That has been addressed in clause 104(8) by establishing that any reference to demolition in the relevant conservation area clause should also include a reference to any structural alteration where that alteration consists of partial demolition. In practice, that has the effect of creating a new offence of unauthorised partial demolition of an unlisted building in a conservation area.

480. Finally, as a means of discouraging development from taking place without planning permission, clause 219 provides for the charging of a greater fee or a multiple of the normal fee for retrospective planning applications. The purpose is to deter commencement of development prior to submitting a planning application and to encourage developers to seek relevant permission at the appropriate time. The Department intends that subordinate legislation may prescribe circumstances where a multiple of the normal fee would not apply, for example where works were needed urgently in the interests of safety or health.

481. That completes our presentation aimed at familiarising members with the key aspects of the enforcement provisions of the Planning Bill. We welcome any questions that members may have.

482. The Chairperson: OK, thank you very much. Enforcement, or the lack of it up to now, is a major talking point among councils, and the retrospective planning and everything that goes with it. You mentioned draft affirmative procedure with regard to fixed penalty notices. That has obviously now become a buzzword on this Committee. We need to secure proper enforcement practices. Are powers of entry in the legislation?

483. Ms I Kennedy: Yes.

484. The Chairperson: Those are obviously delegated to local councils.

485. Ms I Kennedy: Yes.

486. The Chairperson: So the whole responsibility of enforcement will go to local councils.

487. Ms I Kennedy: Yes.

488. The Chairperson: I do welcome that, especially the fixed penalty notices. Obviously, there is a right of appeal.

489. Ms I Kennedy: Not for a fixed penalty notice, because you will have had the right to appeal the enforcement notice which has been breached by not being complied with.

490. The Chairperson: So, you have an opportunity at the first stage.

491. Ms I Kennedy: Yes.

492. The Chairperson: OK. No problem. Do members have any questions about enforcement? I know that it is a big issue.

493. Mr McGlone: My question relates to the link between clause 43 and clause 44. Will you take me through the sequence there, as in the time limit? Is the 28-day sequence right, and how does that tie in with the right of appeal? We are moving to a new planning format, as we all know, which is why we are here, and the role of councils in all that.

494. Say that you get the 28 days, and we are moving to the certificate of lawful use and development. At that point, you may well make an application, or you have 28 days to verify the bona fides of your certificate of lawful use and development. At what point does the appeal kick in? Does the person still have their four months to lodge an appeal? I am unclear after reading that last night. Maybe I was reading it too late.

495. Ms I Kennedy: There are different tools there. The tools in clause 43 are what we commonly call submission notices. That is where a development has commenced but it is likely that the Department has been alerted to it or decided to investigate for enforcement purposes. The development may be acceptable, and the developer is asked to submit an application to regularise the development.

496. If you did not think that that development was acceptable, you would go down the enforcement notice route. That would require an applicant or developer to submit an application. If they did not submit it within 28 days, the appeal would kick in at that point. Certificates of lawful use and development are for an applicant or person who wants to define through the Department whether it is lawful for that. I suppose it depends on what tool is used.

497. Mr McGlone: That is what I was thinking. It was not entirely clear to me last night what the routes available were, how or if the 28 days would kick in, and what period of time the person would have to appeal a determination, or, in that case, an enforcement notice. Presumably, they would still have the four months.

498. Ms I Kennedy: It is more within the submission notice — please bear with me while I look at it.

499. Mr McGlone: It is probably just, in my mind anyway, a wee bit confusing about the specification of 28 days.

500. Mr Peter Mullaney (Department of the Environment): An enforcement notice takes effect after a specified period. That has to be a minimum of 28 days. If the recipient of that notice does not appeal within that time, whether 28 days or longer depending on the circumstances of the individual case, then that takes effect and the right of appeal is gone. It is then a matter of potentially being taken through the courts. Before an enforcement notice takes effect, you have a period in which to lodge an appeal against it. One of the grounds of appeal is that planning permission ought to be granted.

501. Mr McGlone: So, in other words, just for complete clarity on clause 44:

“A person on whom a copy of a notice has been served under section 43 may, at any time before the end of the period allowed for compliance with that notice, appeal to the planning appeals commission against the notice."

502. Are we talking about 28 days or four months? Is the period of compliance 28 days, or is the person allowed four months to appeal?

503. Mr Mullaney: For the enforcement notice, it is a minimum of 28 days. Clauses 43 and 44 do not refer to enforcement notices but to submission notices.

504. Ms I Kennedy: Any person:

“on whom a copy of a notice has been served … may, at any time before the end of the period allowed for compliance with that notice, appeal to the planning appeals commission against the notice."

505. That refers to the 28 days.

506. Mr McGlone: So it is 28 days, not four months?

507. Ms I Kennedy: Yes.

508. The Chairperson: Obviously, the four-year and10-year rules still apply. The enforcement actions will go from buildings which have no planning permission to failure to comply with conditions. Is that correct? It goes right across the scope. In some cases that may not have happened. It is still there; the enforcement act is there. Is that better clarified in the new legislation, or is it just a continuation of what is there already?

509. Ms I Kennedy: It carries forward the range of powers and instances that we currently havae.

510. The Chairperson: So it goes from lack of compliance or condition to no permission?

511. Ms I Kennedy: Yes. That is right.

512. Mr Kinahan: I hope that I understand this correctly. One of my great concerns with planning is that the big or the wealthy developer can afford more expensive advice to fight a case. If there is an enforcement case, the council presumably has to be involved before it ends up at the Planning Appeals Commission. I am concerned from two angles. One is whether there will be resources in councils to be able to pay for qualified people to help advise them. The other is that councils will not find it easier just to say yes than to fight, because that will save money. Are we avoiding that in this system? Will we be able to give councils a fairer place in being able to ensure that they move the whole Planning Bill through and work with the Department on enforcement? I do not fully understand the balance of things at the moment.

513. Mr Mullaney: It is a matter of resources; obviously, enforcement is demand led. It can be a fairly minimal thing or a large thing. It is worth pointing out that planning policy statement 9 and information leaflet 10 are on enforcement. Also, the Department has published its enforcement strategy. Behind all that lie a number of principles. One of the things about directing resources is to prioritise. Everyone acknowledges that it is a potentially open-ended situation. Those documents set out that the top priority is something irreplaceable, such as the demolition of a listed building, and then it grades them down. That is not to say that each case is not important in its own right. However, given the recognition that potentially resources are limited, those priorities have been established. In any new regime — councils or collectively across the piece — there will have to be some recognition of prioritisation.

514. Mr Kinahan: I am not sure. I will come to it again.

515. The Chairperson: It will come back. Just on that, it can be an enforcement situation. At the minute, developers can put in developments under a certain threshold and they do not have to provide recreation or open space in certain situations. That has happened. I know that that should be down to the plan itself, and it may be a matter for the plan and local policies. However, is there going to be some scope, if they do not comply, for an enforcement action there? It has happened before now. Do you understand where I am going? They do it in phases and there is no provision for a play facility or open space or recreation. I am not saying that this is a way around that; the policy is being used, it is being complied with. It is something, perhaps, that we should take into consideration. If that is taking place, it is non-compliance. That is just another example. You may not have had that up to now, but it is a policy that we need to look at and change.

516. Mr Mullaney: That stems from the need, at the outset, either in a local plan or in determining a planning application, to ensure that the decision is sufficiently robust to allow action to be taken should the need arise. Currently, PPS 8 sets the parameters for open space, but clearly then, in the provision of local development plans, the councils may wish to consider the potential of local policies. However, in determining planning applications, there is a requirement under PPS 7 to submit concept plans for wider areas. You talked about phasing; that should be the mechanism by which an entire area is considered so that we are not picked off phase by phase. That should allow for the provision of open space. That is the policy context.

517. The Chairperson: That is the principle behind it. You used the word “robust", and it has to be.

518. On another point about the handover to local councils, there is obviously going to be a legacy of decision-making, whether people agree or disagree. We often hear about people challenging the justification of one building over another. Is there going to be a clean slate? We are handing powers over to councils while there are ongoing applications that will be passed during the transition period until the councils take over. Have you considered how that will roll out in the whole process? There will be situations in which local councils will have to look over decisions that have been made previously. There will be new challenges to new applications, and the councils will refer back to the previous decision. That is obviously something that you have considered.

519. Ms Smith: Yes. That is not in the Bill, but we will consider it in order to ensure that all the safeguards are in place for the work that is being handed over.

520. The Chairperson: It is just something that we need to be aware of. It is a big enough responsibility.

521. Mr W Clarke: I have a question about the conservation aspect and the changes relating to partial demolition. I take it that that applies to townscape character areas as well.

522. Ms I Kennedy: Yes. Parallel powers will apply.

523. Mr W Clarke: Let us imagine a scenario in which an unlisted building is damaged in a fire, and there are health and safety issues with the facade of the building because it may fall onto a road. Consequently, there is an urgent need to remove the facade to improve the safety of the site. I am thinking of a row of houses. This is not a listed building that we are talking about here. What is the process for doing that, now and under the new Bill?

524. Ms I Kennedy: An application would have to be submitted to reinstate.

525. Mr W Clarke: To reinstate the facade?

526. Ms I Kennedy: And to carry out any other works that may be necessary to bring the property back to where it was.

527. Mr W Clarke: I am saying that it could fall onto the road and kill people. What is the time frame for the turnaround?

528. Ms I Kennedy: The property owner would have to look at all the other obligations that he may have under other legislation relating to the safety of the property. It is unlikely that we would place a requirement on the property owner to put in an application within a certain period. We would have to sit down and take a pragmatic approach to each case.

529. Mr W Clarke: That is what I am trying to get at. I am wondering about the guidance as regards this. I am not saying that a developer would use this as an excuse to knock down the building. Obviously, the facade would have to be replaced, but if there is an urgent need to do that quickly — if, for example, it was going to fall onto a main road — there would have to be guidance to turn that around quickly, and agreement would need to be reached very quickly.

530. Ms I Kennedy: I am not sure whether that would necessarily be a planning issue.

531. The Chairperson: We have talked about the economic situation, and about giving people a chance. This is the other element, I suppose, through an inspection or structural report. Is there a time limit to that?

532. Mr Mullaney: There is already a provision under article 80 of the 1991 Order for urgent works to preserve listed and unlisted buildings in conservation areas. There is also an issue with dangerous structures under building control and environmental health. I would have thought that all those three functions would operate in one body under the new council set-up, in other words, the council. Each council will then be able to co-ordinate their activities in respect of those functions.

533. Mr W Clarke: I would like to see guidance for that process.

534. The Chairperson: Yes, we certainly need guidance. It needs to be highlighted now. We are aware of it, and some councils may be aware of it, but some may not.

535. Mr W Clarke: My other point is about tree protection orders, which is a big issue. Developers can take mature trees away, and then just take the hit in whatever fine comes along. Is there anything in the Bill about that?

536. Ms I Kennedy: The responsibility for tree preservation orders will very much pass to councils.

537. Mr W Clarke: It is all very well to say that the council will have the authority to go back and plant the trees, but an awful lot of environmental damage will have been done by that stage. There have been a number of such incidents in my constituency of South Down, especially in Newcastle, and there seems to be a reluctance, even at ministerial level, to deal with the issue. It is a very slow process. How will the Bill speed that up?

538. Ms Smith: I think I am right in saying that the Bill will give the power to councils to carry out that enforcement.

539. Mr W Clarke: Yes, but what is the fine? Deterrent is maybe a better word, because you could clear a site of trees and it would cost you only the price of an additional house in the scheme. That is a small price to pay.

540. Ms I Kennedy: I think that the fine is in the region of £30,000.

541. Mr W Clarke: That is what I am saying. That is not a great disincentive to a developer who is going to clear a woodland area of trees and put in maybe 20 or 30 houses. It is OK saying that the council has the authority to go back in and plant the trees, but you have lost a couple of 100-year-old trees.

542. Ms I Kennedy: On summary conviction it is a fine not exceeding £30,000. If the route of a conviction on indictment was followed, it could be more than that.

543. Mr W Clarke: We need to look at that.

544. The Chairperson: The whole issue is about land use and place. When a local council is looking at a certain area, it may be looking at what is there and taking on board the exact topography and everything else that goes with it. If there are trees there, the council needs to look at whether it designates that area for development. However, the element of enforcement will still be needed.

545. Mr W Clarke: I see a role for the council working at the local planning stage, bringing the community on board. There may be an opportunity to remove some trees within the landscaping of a site. There could be even tree protection orders.

546. The Chairperson: Maybe something can be put into guidelines to say that councils must look at what is in an area in future planning.

547. Mr Mullaney: That could be part of the plan process. The opportunity at the moment to have amenity or environmental areas designated in plans could be taken forward, although maybe not to the level of detail of a specific set of trees. Obviously, the legislative provision is to make tree preservation orders. At present, even if areas are designated for environmental amenity, that in itself is not sufficient protection for trees. There then has to be a tree preservation order for one or more trees. It is important to use that facility where it is deemed appropriate to do so.

548. Mr Kinahan: I have seen numerous developments where trees have been preserved and estates built around them. Over the years, the tree has then been designated as ill or dangerous and taken down. To the Department or someone, every tree is dangerous, and they then get taken away. We need to find some mechanism, whether it is a specialist in the Department or someone who makes that decision yet at the same time is protected by the law on the insurance side, because in time all those big trees on estates get taken down for lots of reasons, and we lose them anyway.

549. Mr Mullaney: That would come down to the expertise that each council employs to make those assessments.

550. Mr Kinahan: My council, when I was there — I am no longer there — always avoided any risk, and because it always avoided any risk, every tree was taken down because it was a risk. We need to find something slightly more robust.

551. The Chairperson: Yes, and now is the time to do that. If a council feels strongly that it needs a factory built for employment purposes, and a piece of ground is designated for industrial use, we need to be mindful of what is there, especially in environmental terms.

552. OK, we are going to break for lunch. Thank you very much.

18 January 2011

Members present for all or part of the proceedings:

Mr Cathal Boylan (Chairperson)
Mr Patsy McGlone (Deputy Chairperson)
Mr Thomas Buchanan
Mr Willie Clarke
Mr Danny Kinahan
Mr Alastair Ross
Mr Peter Weir
Mr Brian Wilson

Witnesses:

Ms Suzie Cave

 

Research and Library Service

Dr Geraint Ellis

 

Queen’s University Belfast

Ms Lois Jackson
Mr Angus Kerr
Ms Catherine McKinney
Ms Maggie Smith

 

Department of the Environment

553. The Chairperson (Mr Boylan): We will receive a briefing from Research and Library Services on the community involvement aspects of the Planning Bill. I welcome Ms Suzie Cave of Research and Library Services and Dr Geraint Ellis of Queen’s University Belfast. I will hand over to Geraint for the briefing, and I will then open up the meeting to members.

554. Dr Geraint Ellis (Queen’s University Belfast): I will take the Committee quickly through the third Planning Bill research paper, which is on community involvement.

555. I am sure that members do not need reminding of the importance of community involvement to the planning process. One of the stated planning reform objectives of the Department of the Environment (DOE) is to bring forward a system that allows:

“full and open consultation and actively engages communities".

556. The success of the Bill clearly depends on those, and they are important for a number of reasons. They clearly help the legitimacy of the planning system, and they help the quality and efficiency of the decisions. They promote social cohesion and so on. Therefore, they are a really vital part of the system. However, key barriers have to be balanced with them, because they impose costs on the stakeholders, applicants and the Department. As you know, some planning issues get overly complex, and articulating that in a simple form can be something of a challenge.

557. As we said earlier, the Bill essentially consolidates existing legislation and prepares to pass it forward to district councils. That in itself will enhance opportunities for consultation. Decisions will be made by local councillors who understand local communities that much better. That is part of the context.

558. Specifically, the Bill will introduce four new aspects of community involvement. Clause 4 will extend the duty to produce statements of community involvement. At the minute, that duty is on just the Department, but the Bill will extend that to district councils. However, I will come back to that.

559. Clause 27 will introduce a requirement for pre-application consultation. We said a little bit about that in this morning’s session. Applicants for major development have to initiate all the consultation themselves before they make the application. That, therefore, represents the front-loading of consultation.

560. Clause 30 will provide for pre-determination hearings at council level. That allows the applicant and any other person to appear and be heard by the committee making the decision.

561. Clause 224 will introduce a duty to respond to consultation. Anybody covered by the legislation, which is primarily the Department and councils, has a duty to provide a substantive response to any consultation.

562. Those are the four key innovative or new elements of consultation. However, a number of things that the Department seemed to commit to in its response to the public consultation do not seem to appear in the Bill. It might be worth getting clarification on whether those matters will lead to legislation and on what the Department intends to do.

563. The first matter, which I think the Committee discussed last week, is about making a statutory link between local development plans — the land use-based plan — and community plans brought by the community planning element, that is, all the other functions of councils. The Department committed itself to creating a statutory link between those plans, but that link does not appear to be in the Bill.

564. The Department also noted that it wanted to change the first part of the plan-making process. At present, it produces what it calls an “issues paper", which is its idea of the key issues to be included in a plan. It wanted to push that along to something called a “preferred options paper", which cuts down the options for consultation but moves the process on a little bit. That does not appear to be in the Bill.

565. Public inquiries into development plans have traditionally been held on an objection basis, meaning that any landowner or other interested party has objected to something in the plan. The Department wanted to move to a situation whereby those public inquiries were really testing the soundness and sustainability of the plan in question. That meant that any objections to the plan or any representations had to contribute to the testing of the soundness and sustainability. That largely removes the rights of someone who felt that their property rights were being infringed, meaning that their representation could be sidelined by the Department. That proposal, which was in the consultation and which seemed to be committed to in the Department’s response, has not made its way into the Bill.

566. As we discussed this morning, the Department intended to allow the Planning Appeals Commission (PAC) to award costs. However, that does not seem to be in the Bill. The issue of third-party planning appeals, which we have also discussed, was raised throughout the consultation, but the Department noted that it does not want to proceed with that at this time.

567. I do not know whether the Department committed to those elements in its response to the public consultation, but it is probably worth clarifying whether they require provision in legislation, and, if so, it should be asked why they are not in the Planning Bill and if they will be included in something else. Those are absences from the Bill.

568. In the paper, we highlighted what we call nine contentious areas that might focus the questions to the Department. The first is a general comment on the Department’s claim to want to move the planning system to one that actively engages communities and that is very open. If we look at the Bill, however, we will see that only very minor changes have been made in the consultation provision. Is that actually active engagement? Usually, the opportunities for consultation are still very reactive. That essentially means that communities and other stakeholders respond to something that the Department issues. It can therefore be questioned whether the Bill lives up to the expectations that the Department was raising when it said that it wanted a very open and actively engaged planning system.

569. The next contentious issue is related to the requirements for statements of community involvement. That requirement is in clause 4 and contains a number of elements. The statement of community involvement is one of the key elements of the consultative provisions, and a number of points need clarification.

570. The first, which may be the most critical, is that, although there are a lot of provisions in the Bill for reviewing and monitoring all sorts of things, there does not seem to be any requirement or duty to review or monitor the effectiveness of the statement of community involvement. For example, there is no monitoring of the effectiveness of a statement for section 75 groups or other vulnerable groups. Once a statement is set up, it might stay as it is in perpetuity. Therefore, there might be a need for a duty to monitor and review a statement’s effectiveness.

571. Secondly, a statement of community involvement must explicitly refer to the plan-making process and to development management. However, it seems that the requirement for a statement of community involvement does not apply to all the other provisions in the Bill, many of which people will want to be consulted on. Those other provisions include tree preservation orders, listed buildings, conservation and mineral planning. Therefore, a big part of the Bill does not seem to be picked up by the requirement for a statement of community involvement. Perhaps the provision should just refer to all planning functions.

572. There is also a question of how the statements of community involvement are aligned to the equality provisions. In the equality impact assessment (EQIA) of the Bill, the Department raised a number of issues about getting effective information and monitoring equality. Statements of community involvement would be a way of securing those.

573. A pre-consultation procedure will be introduced under clause 27. It is interesting to note that the same procedure has been active in England and Wales for a number of years. As a consequence, the Government have brought forward new proposals, which apply particularly to England, to strengthen the duties on applicants. The procedure makes the applicants carry out all the consultation. The experience in England seems to have been that the wording used there, which is the same as that in the Bill, has not been that effective in pinning down applicants to carry out a thorough consultation. Therefore, through the new Localism Bill, the Government will introduce much more stringent requirements for applicants, such as a duty to respond to the consultation and a much stronger duty to ensure that everybody in an area, or at least the majority of residents who live there, is consulted. It is a way of putting more of an onus on applicants.

574. There is a new provision for pre-determination hearings. As I mentioned this morning, that allows a council to exclude some interests from a hearing. The provision does not put an onus on a public hearing, so a council can invite who it wants to a pre-determination hearing. In the interests of openness, that provision should be in the Bill.

575. We mentioned third-party appeals. That was a common issue that was raised in the consultation, and some members have been very interested in it. The Department noted in its response to the consultation that:

“there does not appear to be any immediate compelling reason to proceed in the public interest towards making provision for third party appeals".

576. As members probably know, the third-party appeal is one of the key elements of the planning system in the Irish Republic. Third-party appeals can come in a number of variations, from those that are very limited to those that are very open. Therefore, it might be worth questioning the variations that the Department has explored, the evaluations that it has done and the impacts that third-party appeals will have There may be an impact on delays; indeed, the Department has admitted that there might be some impact on speed. However, it may be worth finding out the impact that not having such types of appeal will have on public confidence, community involvement and the quality of the decisions that are made. Third-party appeals can bear some relation to those issues.

577. The sixth contentious issue is an attempt to get developers to make some broader contribution to community benefits as a result of development. That happens in England and the Republic of Ireland. Therefore, although the Department has existing powers through planning agreements, they are rarely used. In England and Wales, a community infrastructure levy was recently introduced. We found that, in England in Wales and in other jurisdictions, such a levy allows local authorities to gather contributions from developers to pay for elements of the local infrastructure, such as water supplies, transport, schools, health centres and so on. The levy is based on the assumption that, when development goes ahead, there is some cost to the public purse in upgrading the infrastructure to facilitate such a development. It also recognises that, whenever someone gets planning permission, there is a sudden uplift in the value of the land. That uplift is in some ways unearned, because it is just the planning permission that has caused that increase. It is a way of getting a broader contribution from the developer to meet some of the local costs. The Department said that it does not want to take that forward at this time. One could ask whether any assessment has been done on the impact of the community infrastructure levy and whether it would work in Northern Ireland.

578. Community involvement is a popular area for legislative activity. In the rest of the UK and in the Republic of Ireland, a number of provisions have been introduced recently that are absent from the Bill. It might be worth asking whether this is an opportunity to look at those as well. The first thing that I want to highlight is a relatively radical idea that has recently been introduced into the Localism Bill. That is the provision for neighbourhood development plans and neighbourhood development orders. It is a very localised plan that is being put on a statutory footing. There can be local referenda for local neighbourhood plans, and, when those are informed, local residents might be able to get automatic permission for development if the majority of local residents want it. It is a very grass-roots approach to planning. That is in the Localism Bill, which is proceeding through the House of Commons.

579. In Scotland there are things called good neighbour agreements. The idea behind those is that, if a major development causes local residents some concern, the provision of good neighbour agreements allows local community groups to come to an arrangement with developers to limit operating hours or to take other measures to give confidence to local residents. In Scotland there is also a provision to allow the public availability of information once a planning application has been dealt with. That is an openness and transparency issue. We noted in other sessions that the provisions that result from a lot of those issues are very basic, and that raises questions over whether further guidance is needed. For this to be successful, that needs to be flushed out.

580. Almost all the comments on the equality impact assessment relate to the procedure of community involvement. The EQIA notes that there is poor evidence for evaluating equality impacts where monitoring and so on are concerned. The Bill might therefore be an opportunity to make some provision for regular and effective monitoring in the future.

581. Those are the key issues.

582. The Chairperson: Thank you very much. You talked about third-party appeals, and we will come to that in a minute. Indeed, a lot of respondees talked about them.

583. I want to talk about a key element of the Bill. As you know, the research paper that we received in the previous presentation talked about the notion of spatial planning. The key element of that is not only land use, but place. One of its key factors is community engagement. You mentioned proper, active engagement. Will you expand on how the various jurisdictions try to include the entire community? Perhaps you can give us a definition of “community"?

584. Dr Ellis: The definition of community that is given at the beginning of the paper is taken from the English guidelines for community involvement. In the overview of themes element of the research paper, there is a definition of what community involvement in planning could mean. Essentially, there is no definition of it; it is an open process. It refers to the ability of everybody, perhaps excluding Government and statutory providers, to engage. It is about the involvement of business, the voluntary sector and local people of all sorts. It is not useful to provide a very narrow definition of “community" because you start excluding people. If we have an open process, the people who are interested and might be affected by development can then engage.

585. The Chairperson: I will come on to that. That is front-loading the process by getting everyone involved. That is why there is some recognition that, if we have a front-loaded process, we may not necessarily need third-party appeals. We have seen how that has worked in other jurisdictions. Sometimes it has been positive, but, at other times, they have got it wrong. Do you feel that there needs to be some kind of appeals mechanism to ensure that people get the proper result?

586. Dr Ellis: Front-loading refers to two key elements. The first is having full involvement in the local plan and having a plan-led system. That means that when a decision is made on a development application, it is made on a plan on which there has been full consultation. However, as we heard this morning, the Department has not commenced the plan-led system. Therefore, that little element of front-loading is not quite there.

587. The second part of front-loading is the idea of the pre-application consultation, which I just talked about. That refers only to major development. As far as I can see, those are the two key elements, but the Department may have other ideas about front-loading. We are not quite there with the plan-led system, which is why it is so important to have the commencement of the plan-led element.

588. The Chairperson: You said that there are models of appeals that may suit the Bill. That is certainly something that we could look at.

589. Dr Ellis: It has been suggested that pre-application consultation may be advantageous in ironing out a lot of the issues before they occur. However, it has been argued that third-party appeals will mean that the developers will fully take into account the consultation, because, if they do not, there may be an appeal afterwards. The pre-application engagement could strengthen the local community. Therefore, front-loading could be strengthened if third-party appeals are introduced.

590. The Chairperson: You also mentioned the community infrastructure levy. On one occasion, we talked about developer contributions, but —

591. Dr Ellis: It is essentially the same thing.

592. The Chairperson: It would certainly be welcomed, and it would encourage participation.

593. Dr Ellis: Development would certainly be more acceptable if local communities felt that it would lead to new open space or enhanced infrastructure. Clearly, it can help. People welcome development if they do not think that they are subsidising it or if they think that they will get something out of it.

594. The Chairperson: The matter of equality and section 75 is a major issue for us and a lot of the respondees. It is about being inclusive. Do you have any comments to make on that, or do you think that the Bill stands up?

595. Dr Ellis: As the Department states in the EQIA, it is very difficult to know that, because there is very poor monitoring information. That can be answered only by ensuring that there is future monitoring and review. When the relevant information is collected, a more objective stance can be taken on whether those groups are being disadvantaged.

596. The Chairperson: How do you propose to place that mechanism in the Bill? Will it be done in guidelines?

597. Dr Ellis: In the statement about community involvement, there could be a requirement to collect information on section 75 groups and to have a specific section of the community involvement that would reach out to those groups.

598. The Chairperson: Thank you very much.

599. Do members have any questions about community involvement? This is an important subject.

600. Mr B Wilson: If a developer wanted to knock down a couple of Victorian houses and put up apartment blocks or that sort of thing, what pre-consultation would they be required to do?

601. Dr Ellis: If it is a major development — the difference between local and major was discussed this morning — they will have to undertake a pre-application consultation. The requirements at the minute are quite loose. The Localism Bill proposes that there be an onus on the developer to take reasonable steps to include the majority of people in the area, and it puts a duty on them to take into account the responses. That may mean not going ahead with the scheme.

602. The duty in the Planning Bill is much weaker, in that it asks the developer to carry out only consultation. The Department may specify some strong guidelines, but there is an argument that the duty should be in the legislation from the start, because that is what happened in England. The developers have tended to go through the procedure without taking it into account and have proceeded anyway. In some ways, that is a waste of everyone’s time, and it is not the purpose of the duty.

603. Mr B Wilson: Would knocking down two big houses and putting up a few apartment blocks be considered to be a minor or a major development? Who would deal with that type of development?

604. Dr Ellis: I did not see the definition that the Department circulated this morning, but I would not have thought that two apartment blocks would be considered to be a major development. I would have thought that it would be considered to be a minor development. In that case, I think that it would be dealt with as it is now.

605. Mr B Wilson: Does that mean that no consultation would be involved?

606. Dr Ellis: There would be no additional consultation. There would be the statutory six weeks during which people could object to the development, but there would be no difference between now and then.

607. Mr B Wilson: Does that mean that there would no obligation on the developer to consult the local community on those sorts of schemes?

608. Dr Ellis: No, I do not think so. In England, that has been opened up so that a pre-application consultation can be asked for not only for major developments, but for any application. The Bill isolates that to major developments, but in England, the position moved away from that, meaning that any application could be asked to go through that process.

609. Mr B Wilson: Who decides who to consult, and how do they decide?

610. Dr Ellis: If it is a major development, the applicant must contact the Department 12 weeks before they make the application, and they must agree the nature of the consultation with the Department. That is all that the Bill says on that. It is up to the Department to agree the nature of the consultation with the applicant.

611. Mr B Wilson: Would the applicant be expected to consult, for example, the Helen’s Bay residents association?

612. Dr Ellis: That would be up to the Department. It seems a reasonable thing to ask for, and the Department —

613. Mr Weir: It depends on whether the development is for Helen’s Bay.

614. Dr Ellis: The Department does that already, and it is in the guidelines.

615. The Chairperson: Members are being very local. You do not have to answer that question.

616. Dr Ellis: That is in the guidelines that are to come.

617. Mr B Wilson: Are you saying that it will be in the guidelines?

618. Dr Ellis: Yes; it will be in the guidelines that are to come. However, they have not been specified.

619. Mr B Wilson: I am worried about whether the guidelines, when we actually see them, will be specific.

620. Dr Ellis: I do not know.

621. Ms Cave: That question will have to be asked of the Department.

622. The Chairperson: That is a question for the Department. You are correct to raise that point, because it is important to have it included and to get it answered now. We will have a chance to ask it of the Department. Please try not to mention Helen’s Bay or South Down. Here comes Mr Clarke, one of the South Down MLAs.

623. Mr W Clarke: On Brian’s point, surely weight must be given in a planning application to any clear willingness or understanding on the community’s part, including the council and developers at the early stage, to preserve a row of houses that may not be listed.

624. Dr Ellis: It goes back to the idea of the system being plan led. If the community had been consulted on the plan and the plan designated the area as a conservation area, it would be unlikely that, in a plan-led system, the community would go against the plan.

625. Mr W Clarke: You mentioned the Localism Bill in England. How does the neighbourhood element of that work?

626. Dr Ellis: It is an idea, but it has not happened yet, because the Bill is not on the legislative books.

627. Mr W Clarke: What if people in a neighbourhood were to say that they wanted to preserve certain types of houses in their neighbourhood?

628. Dr Ellis: It looks as though they can do that. There is provision in the new English Bill for local referenda. That means that if more than 50% of the people in a designated area were to vote in that way they could bring forward plans. There is a lot to be seen on how that will work. It is an idea that is being brought forward, and there are a lot of questions about it.

629. Mr W Clarke: Obviously, people have bought properties looking to speculate, and there may be compensation aspects to the Bill. However, I am not sure. Do you have any views on that?

630. Dr Ellis: There is currently no compensation for planning policies.

631. Mr W Clarke: If a swathe of legislation were introduced to change how we do planning, and that is what the Bill is about, and if the recession meant that people did not develop, would there be moves towards including elements on compensation?

632. Dr Ellis: I would find a change in policy very unlikely, but you would have to ask the Department. I am sure that you would need legal advice.

633. Mr W Clarke: That is dead on.

634. Following on from Brian’s point, will the likes of established community groups be part of the consultation process in the initial stages?

635. Dr Ellis: I would have thought so. However, a district council would, for example, have to prepare a statement of community involvement. At that level, they would state who they would involve for what sort of policies. You would have thought it reasonable that, if there were a load of established community groups in a town, a statement of community involvement would specify that they should be involved. However, the Bill does not get down to that level; it just provides for the statement of community involvement.

636. Mr W Clarke: Would that include sporting and youth groups?

637. Dr Ellis: It is reasonable to suggest that such groups would be included. There are guidelines to be issued, and that is where some of that detail will appear.

638. Mr Weir: I presume that community consultation will also depend on the scale of the planning application. To take Brian’s example of something that would have a major impact on, say, Helen’s Bay, it is reasonable to look at the groups that are affected, whereas a one-house development up a cul-de-sac may affect a handful of neighbours, who would have to be notified. Presumably, the level of consultation and community involvement will, to some extent, depend on the level of the application, even setting aside the division between a major application and what would be considered to be more local.

639. Dr Ellis: The Department would deal with major applications, and it would have its own statement of community involvement.

640. Mr Weir: I presume that it is likely that the council will take a graduated response, depending on whatever falls to it.

641. Dr Ellis: That would be up to the council to decide, because there are no guidelines. All that the Bill provides for is that the council must have a statement of community involvement; it does not say whether it separates different developments.

642. The Chairperson: You mentioned neighbourhood development plans and neighbourhood development. That happens elsewhere.

643. Dr Ellis: It has not been introduced in England, but it is in the Localism Bill.

644. The Chairperson: I think that you are right to say that the definition of community should be as open as possible.

645. Mr Buchanan: How is the community infrastructure levy worked in other jurisdictions? I think that it is important that some community benefit as a result of a big developer coming into an area. I am thinking especially of those who are developing wind farms, for example. It is a question of getting that community development. I know that in that situation there is a mechanism whereby developers pay into a fund. However, that is not really related solely to the community that is affected by the wind farm. I worked with a couple of developers in my area to secure much greater community benefit. Do you have any examples of how that works in other areas, and do you have any suggestions about how the mechanism that is used to harness it in other areas could be reflected in the Bill?

646. Dr Ellis: It has been on the books in England, but I do not think that it has commenced. Therefore, there is very little experience of how it is working. That might be an area for more research, if needs be. There is legislative provision for such a mechanism, but I do not think that it has been introduced as yet.

647. Mr Buchanan: I would like to see some direct community benefit resulting from a huge development in a particular area being introduced into the Planning Bill. Given their effect on the landscape and so forth, wind farms are a typical example of where there should be a greater community benefit.

648. Dr Ellis: A lot of wind farm developers provide community benefits. However, that is voluntary at the minute.

649. Mr Buchanan: Yes, but it is very sparse.

650. The Chairperson: Thank you very much.

651. We are going to move on to our final presentation, which is a departmental briefing on community involvement in the Planning Bill.

652. Ms Maggie Smith (Department of the Environment): Angus Kerr is going to talk about community involvement, and he will cover the subject in three stages. The first stage is about the statement of community involvement. That is covered in clauses 2 and 4. Secondly, he will talk about the consultation as part of the development plan process. That is covered in clauses 10 and 22(2)(e). Thirdly, he will talk about consultation in development management. Four clauses are involved: clauses 27, 28, 30 and 50. Angus will name the clauses as he goes through his paper.

653. Mr Angus Kerr (Department of the Environment): A key objective of planning reform is to ensure that the planning system allows for a full and open consultation and actively engages communities throughout the planning process. That is part of the change in the culture of the planning system that is being introduced through the Bill, whereby citizens will have a more effective input into planning decisions that will affect them.

654. I will first talk about statements of community involvement, through which the Department and councils will show when and how they will involve the community in the planning process. I will then discuss how the community can become involved in the local development plan process and development management.

655. The Department regards community in its widest sense, and that includes everyone with an interest in the area. As well as people who live in the area, it can also include those who work or invest there or who visit it. It is envisaged that the whole community will have the opportunity to engage in the planning process.

656. The Department and councils, as public authorities, will continue to be expected to meet their obligations under sections 75 and 76 of the Northern Ireland Act 1998, as well as their obligations under the Human Rights Act 1998 and anti-discrimination legislation. It is in that context that the statement of community involvement will be developed.

657. The Committee is aware that planning powers will transfer to councils only after appropriate governance arrangements and an ethical standards regime for councillors have been put in place. The ethical standards regime will have a mandatory code of conduct that will include a section on planning. As members are aware, the Minister launched consultation on those issues on 30 November 2010 with a view to bringing forward legislation in the next Assembly.

658. I mentioned earlier that the Planning Bill contains powers for the Department to intervene if necessary in a council’s delivery of planning functions. Those powers are included as safeguards in the unlikely event that a district council is unable to fulfill its responsibilities under the legislation.

659. The first provisions of the Bill that relate to community engagement are clauses 2 and 4, which will require the Department and each council to prepare a statement of community involvement. Clause 2 will require the Department to prepare a statement of community involvement that will set out the Department’s policy for involving the community in the exercise of the remaining development management functions that are under Part 3. The Department’s statement of community involvement will set out methods by which the public can express their views at the various stages of processing the regionally significant applications, which will be the ones that the Department will process.

660. Under clause 4, district councils will be required to prepare a statement of community involvement. That is defined in the Bill as a statement of the council’s policy for involving interested parties in matters relating to the development in its district. Clause 4 will also require the district council and the Department to attempt to agree the terms of the council’s statement, and it will provide a power of direction for the Department where agreement is not possible.

661. The fundamental purpose of the statement of community involvement is to set out the council’s procedures for involving the community in both the preparation and the revision of its local development plans, as well as the processing of planning applications. That will ensure that community groups, the voluntary and business sectors and the wider public are aware of what community involvement will take place and of how and when they can become involved.

662. The statement of community involvement will allow councils to demonstrate clearly their commitment to community involvement, and it will help to promote equality of opportunity and community relations through increased awareness of community participation and involvement.

663. Where the local development plan process is concerned, councils must have a statement of community involvement in place before any consultation on that local development plan can begin. The statement will be a fundamental tool in enabling district councils to deliver more inclusive and effective community consultation for their plans. It will set out arrangements for community involvement throughout the plan process, going from the early stages of plan preparation through to adopting the plan. It will indicate the proposed methods of involvement that are relevant to the community, the stage of plan preparation at which that involvement will take place and the scope of community involvement. The statement will also set out the methods by which the public can express their views at the various stages of processing a planning application.

664. The Department will prepare guidance to assist councils in the preparation of a statement of community involvement. That will address such matters as its purpose, content and preparation process, and it will include information on best practice. Councils will be encouraged to involve the community and key stakeholders in the preparation of the statement of community involvement. That said, however, councils will have the flexibility to take their own approach to community consultation to reflect local circumstances.

665. I will now outline the methods by which the community can become involved in the local development plan process. As we discussed last Thursday, the local development plan will comprise a plan strategy, which will set out the strategic objectives and policies, as well as the much more detailed local policies plan, which will include maps showing what development is acceptable and where.

666. The public and stakeholders will have the opportunity to become involved in the local development plan preparation process at a number of stages: at preferred options stage; at publication of the draft plan strategy stage; at publication of the local policies plan stage; and during the independent examination. The Committee should note that much of the detailed requirements for consultation in the local development plan process will be in subordinate legislation.

667. The first opportunity for public consultation in the plan preparation process is at preferred options stages. The preferred options paper will replace the current issues paper and will inform interested parties and individuals of the matters that may have a direct effect on the plan area. The paper will contain a series of options for dealing with the key issues in the plan area, and it will set out the implications of those options, as well as the district council’s preferred options and a justification for its preferred options. It is envisaged that the preferred options paper will help interested parties to become involved in a more meaningful way at that earlier stage of the plan preparation process and will provide them with an opportunity to put forward their views and influence the final local development plan.

668. The Department considers that front-loading the plan preparation process with community and stakeholder involvement will have two main benefits. First, more meaningful engagement should help to gain a consensus earlier in the process with the community about the plan. Secondly, it should help to reduce the volume of representations at the next stage of consultation when the draft development plan documents are published. Requirements regarding the preparation of the preferred options paper and public consultation will be set out in subordinate legislation.

669. After the preferred options stage, the public and stakeholders will be further consulted when the draft plan strategy and the draft local policies plan are published. After the publication of the draft plan strategy and the local policies plan, there will be a consultation period to allow for receipt of representations. Requirements regarding publicity and availability of documents will be set out in subordinate legislation.

670. After the close of the consultation period for both draft development plan documents, councils will consider all representations before submitting the plan document for independent examination. Under clause 10, when the development plan document is being independently examined, those who made representations during the consultation period will be given the opportunity to appear before and be heard by the examiner if they so request.

671. I will now outline the methods by which the community can become involved in the development management process. Applicants bringing forward proposals for major or regionally significant development are required to engage with the community before they submit their applications.

672. Pre-application community consultation, as set out in clause 27, will provide an opportunity for communities to get involved before the application is submitted. The early involvement of communities can bring about significant benefits for applicants, communities and planning authorities. It allows developers to resolve issues that are raised by the community and to include mitigating measures as necessary. That will improve the quality of the application and, ultimately, the development.

673. Community involvement is a crucial feature of the new development management system. Consequently, pre-application community consultation will be a mandatory requirement for all major and regionally significant proposals. The minimum period of consultation is 12 weeks. Certain requirements will be necessary, such as the information that is to be contained in the proposal of application notice. In addition, to ensure the consistency of approach across all council areas, subordinate legislation will contain minimum requirements, such as the holding of at least one public meeting, and it will outline advertising arrangements.

674. Clause 28 will introduce a requirement on applicants to prepare a pre-application consultation report. That report will need to demonstrate how the developer approached pre-application consultation and what they have done to amend their proposals in the light of that consultation. If the district council or Department do not feel that the applicant has carried out adequate consultation, they can request additional information. In addition, a new power is being introduced in clause 50, whereby it will be possible for the Department or a council to decline to determine those applications where the applicant has not complied with the necessary pre-application consultation. That is to ensure that, rather than its being a case of just following a set of procedures, the community has been consulted in a meaningful way and its views are properly taken into account about what the developer proposes.

675. Clause 30 will give councils the power to hold pre-determination hearings. Those will aim to make the planning system more inclusive by allowing the views of applicants and those who have made representations to be heard before a planning decision is taken. Subordinate legislation will set out the instances where a pre-determination hearing will be mandatory. Those are likely to include applications for major developments that have been subject to a direction for call-in but have been returned to the council for it to determine. The district council will have discretion over how those hearings will operate in their area. They may, of course, wish to consider other types of development application for which they could hold pre-determination hearings.

676. That completes the presentation, which was aimed at familiarising members with the key aspects of the Planning Bill that deal with community involvement. I welcome any questions that members may have on those issues.

677. The Chairperson: Thanks very much. We will start with the statement of community involvement. I listened to Dr Geraint Ellis’s comments about what happens in other jurisdictions. Perhaps we can learn from best practice elsewhere. Are there proposals in the Bill to monitor or review the statement of community involvement, or are there options or guidelines about that?

678. Mr Kerr: There are no proposals in the Bill to do that, but we could look at some of the more detailed requirements through subordinate legislation.

679. The Chairperson: As regards the requirement in the statement of community involvement — we will call it the SCI — to engage with all sectors, especially section 75 groups, what mechanism is in place to ensure that that will happen? Is there such a mechanism?

680. Mr Kerr: Detailed guidance will indicate that. Obviously, the Department and councils will be obliged to comply with section 75 and section 76 and so on.

681. The Chairperson: OK. Does the SCI relate to all the planning functions in the Bill or just to certain elements of it?

682. Mr Kerr: For the Department, the statement relates only to the planning functions that remain with the Department. That refers to regionally significant applications. As for councils, the statement relates primarily to the development plan process, which is, of course, the key element, as it sets the policy framework for making all the planning decisions in the area. It also applies to the mainstream development management process for the councils. At this stage, that is the extent to which the SCI applies.

683. The Chairperson: That all depends on whether there is good governance and codes of conduct and practice in councils. Those are key elements.

684. Mr Kerr: Absolutely.

685. The Chairperson: I want to talk about the development plans. At the minute, we have an area plans process. Should there not be some form of community plan? Is there no statutory requirement in the Bill to link community plans with development plans?

686. Mr Kerr: Do you mean lower-level neighbourhood plans?

687. The Chairperson: Yes. Let us say that we are looking at a spatial plan. It is fine to have an area plan that will basically designate or zone areas, but surely at that point, we should be looking at what is best for the area, community or town. Should that not be incorporated? Should there not be a duty to inform people about that process or to have some input from the community from that point of view, as opposed to just zoning land and saying that it is for industrial use, a housing development, recreation or whatever? The local community should have a say in such plans.

688. Mr Kerr: Absolutely. We talked about spatial planning on Thursday. It is important that there is a link from the local development plan to the wider community plan so that, in effect, it becomes a spatial manifestation of the wider community plan. That is the intention, and, if possible, it will be done either through subordinate legislation or a local government Bill. We will look into that.

689. Ms Smith: I think that you are perhaps talking about planning at a more detailed level. Is that right?

690. The Chairperson: The issue is about being inclusive. We are in a situation where we zone land; the process is all about land use on its own. We have to get to a point where there is proper community consultation about the benefits of development schemes, whatever they happen to be. The process should be about more than business. When talking about housing developments, for example, the community interest should be included.

691. Ms Smith: The approach is that “the community" means anyone who has an interest in the area. It does not just mean the people who live in the area or those who do business in it. That definition is wider in the Bill than it is in existing legislation. The statement of community involvement will set out how and when people will be consulted. Anybody who is part of the community will be able to look at the statement and see when the consultations and so forth will take place so that they can plan ahead. They will have the opportunity to contribute at those stages and to each of the development plan documents. That means that they can contribute not just once, but all the way through the process.

692. The Chairperson: Obviously, the statement of community involvement is an important part of the process, because it indicates who is included and who is not.

693. I suppose that we should move on to the small matter of third-party appeals. It is a minor matter that keeps rearing its head. We talked about this in the Assembly Chamber, and we are talking now about community involvement and front-loading the system. Unfortunately, there have been examples elsewhere, where, with the best will in the world, things have not gone to plan. There needs to be a mechanism to allow challenges to ensure that things are right. You are proposing not to introduce third-party appeals. Can you explain to the Committee within the next half hour why you believe that there is no call for a third-party right of appeal in the Bill?

694. Ms Smith: As you say, the whole ethos and approach of the Bill is about front-loading. It is about getting things right from the beginning. Through the development plan process and the statement of community involvement, the community is involved in shaping the development plan through the community planning system. The wider shaping of the place and the clear linkages between the other issues that are involved in the community plan and the development plan are also important. Planning applications will need to be shaped in the context of the development plan.

695. In major and regionally significant applications, the responsibility is on the applicant to make sure that the community has the opportunity to input to the application. Therefore, there is a requirement on people to bring forward applications to consult the community before they produce their application. They have to set out what they intend to do, listen to the issues that the community raised, and then take them on board and discuss with the community how they will change the application. When it comes to application stage, they have to be able to demonstrate that they have gone through the process of community involvement, and they have to be able to show that they have done it right. If the planning authority, that is, the council or the Department, feels that the applicant has not done the consultation either properly or at all, it can decline to determine the application.

696. The idea behind including the community all the way through the development plan process and in the lead-up to important applications that are going to impact on people’s lives is that the products that come forward will have been shaped. That means there should not be a need for third-party appeals.

697. During the consultation on the policy that went into the Planning Bill, views were taken on third-party appeals, and the decision that the Ministers took at that time was that the focus should be on strengthening front-loading and making sure we get that right. However, there was no focus on third-party appeals.

698. The Chairperson: That decision was made by the Minister, wrongly in my opinion.

699. On the face of it, that is fine, because everyone is included. However, you could also argue that making an objection is only a paper exercise. I am not saying that everyone should be able to make an objection or challenge any decision for any reason; their reasons should be correct. However, that is not in the Bill. At the end of the day, a person may make a reasonable objection to a development, and that objection could challenge policy. In most cases, the development or whatever it is could be tweaked. The question is about whether the proposal will result in a proper consultation process. Will it be a material consideration, or will it just give people a voice and then that is it? That is why I think there needs to be some check or some appeals mechanism in the Bill.

700. For example, someone could live 10 miles away from an area and drive through it and see that a major infrastructural route is being put through that place. The next thing they will find is that their journey has increased by half an hour, but they never had a say. I use that only as an example of someone’s not having an opportunity to contribute. People should be given a proper opportunity to contribute. We do not want to get to a point where front-loading gives everyone a chance, but, at the end of the day, people are at meetings about developments just so that they can just put up their hands to ask questions. I believe that there has to be some mechanism to ensure that that whole process is correct and that it is not just about correcting someone’s homework. Any application or development plan has to be conducted within proper criteria and be properly assessed and followed. There needs to be some mechanism for that. I have said that from day one, but other Committee members will have different views on that. It is a big issue. A number of respondents raised it before now, and it certainly is not going to go away.

701. One other important point has come to the Committee’s notice. It is not for the Committee to support one group or another. A lot of groups out there, such as Community Places and Disability Action, have lost funding but have contributed to the planning process and have given good advice. The Department has depended on those organisations. I am mentioning those two examples, but I am sure that there are others. How will you ensure that, through this Bill and this practice, there will be proper mechanisms to deal with that situation and with the added value that those groups have brought? How do you cover that? Are the consultations and bringing in the expertise and so forth all passed down to local councils so that they can deal with them? If that is the case, are the resources leaving central government and going to local government to cover all that?

702. Mr Kerr: In a sense, the communities out there resource themselves in that, as you rightly say, they engage very well with the planning system, as many of us planners have found out to our cost on various occasions. I do not see any reason why that will change in the transfer of some of the functions to councils. I am sure that those groups will be as keen as they have always been to engage in the planning process, and the various different elements of the Bill that will enhance and increase the ways that the community can engage in the planning system will probably make them more keen. I imagine that that will continue.

703. The Chairperson: In essence, are you saying that all those problems connected to that will be passed down to local councils?

704. Ms Smith: When the councils become the planning authorities and draw up their own plans, the most fruitful engagement on a development plan, for example, will be that between the councils and the community, whether the community is organised into groups, business or the wider public. Therefore, it will be appropriate for the groups to deal directly with the council.

705. The Chairperson: If something is being devolved downwards, a level of expertise obviously needs to be available. Do you say the Bill includes the facility to ensure that that happens? The groups that I cited have a high level of expertise. Such expertise needs to be in place for the implementation of the Bill. Would you like to comment on that?

706. Ms Catherine McKinney (Department of the Environment): Are you asking how they will engage with the local community?

707. The Chairperson: At present, there is a level of expertise in the Planning Service’s operations that is outside that of the Department. Funding is now being cut, and the funds that are available for that engagement are being reduced. If we are saying that that function is being transferred down to local government, will all that goes with that be the responsibility of local government, or will resourcing that and trying to support local government to get that in place before the Bill is implemented be looked at?

708. Ms Smith: We are working to ensure that, when planning powers and the staff and resources transfer, councils have the resources that they need. As you know, we are looking at the structure of the Planning Service and preparing it for the transfer. We are also looking at the fees. The idea is that there will be a sound resource that will transfer to the councils.

709. The Chairperson: Does that mean that, inclusive in the level of funding for those groups, a resource will be passed down to local councils?

710. Ms Smith: Sorry, funding of what?

711. The Chairperson: I mean funding of the likes of Disability Action and groups that have the level of outside expertise that the Department has access to. Does that carry as well?

712. Ms Smith: That is not included.

713. The Chairperson: It is a resource issue, obviously.

714. Ms Smith: Yes, but it is not covered in the Bill. Councils would have grant-making powers. That does not need to go into the Bill, because councils already have the power to fund community groups.

715. The Chairperson: Are you saying that the training issue should be in the Bill?

716. Ms Smith: Training?

717. The Chairperson: Should training and giving the expertise to local councils so that they can take on that responsibility be incorporated in the Bill?

718. Ms Smith: We are looking at training in capacity building for councillors, council employees and our planning staff. The pilot programmes that the Minister mentioned in his statement are central to that.

719. Mr Weir: We may need to make a clear recommendation about that in our report on the Bill. I am not sure that training can be legislated for, but we need to get commitments on the issue from the Department and flag it up strongly as a Committee.

720. The Chairperson: As I said, these issues start to arise, and we need to find out about it. You may be correct to say that it is something that we cannot include in the Bill.

721. Ms Smith: It is not really something that can be put in the Bill.

722. The Chairperson: It is OK to transfer the functions when the legislation is being put in place, but we need to have the actual ability to carry out those functions. That is important. We have not seen the magic model that we have been asking for, that is, the workforce planning model that we were supposed to get six months ago that would outline how planning will roll out in local government. Perhaps that is something that we should just keep in mind.

723. Mr Kinahan: I have a large number of questions to ask. Your definition of community is enormous; it includes everyone who touches the patch. Are you going to give guidance to people so that they know how to get to the community? At the moment, having watched one or two council debates on master plans, they really only half do it, and they need guidance to know how to get to everybody. Sometimes it is just about knocking on doors, but I think that the councils need guidance as to who the community is. You have given us a broad definition, but within that, we need the same again. Even when the Department goes out to consultation, it has to constantly rethink whether it is including everyone. Are you planning to produce some form of guidance?

724. Equally, will there be a publicity campaign that will explain to the public that they are now the community that is going to be consulted? Most people will not know that this is going on, because they do not read the papers. There needs to be a campaign to inform the public about what is going on. Again, I foresee a huge cost coming with that, and I wonder whether we have the resources for it. We cannot just throw it at the councils. That is my first question.

725. Mr Kerr: The answer is yes, we are going to produce guidance that will assist in all that. One of the great advantages of transferring planning functions to councils is that they are closer to the ground in their areas and they have a better understanding than the Department could ever have about what is going on locally. The councils understand the ways to involve the community, and they know better than us who the community is. They know which groups are representative and which to steer clear of. All that gives the councils a fundamental advantage, given where we are going with planning.

726. The statement of community involvement will be a great tool, because it will allow councils to set everything out. It would be quite innovative to use the Internet and other methods of consultation and to look at different ways of publicising things. It has, perhaps, been difficult over the years for civil servants in the Department to be more proactive locally in that sense. I see this as a big opportunity to address some of your concerns. To some extent, the measures do not always have to be massively expensive, but it will be the councils’ responsibility to take that on. I am sure, as is the case in other jurisdictions, that the responses will be varied and that some are better than others.

727. Mr Kinahan: I have other questions, but I will let others have a turn.

728. Mr McGlone: Before we get into the computer business, it might be an idea to employ a different computer firm from the one that got the e-PIC project. That is a sheer disaster in accessibility and consultation. It is important that we got that on the record. You need to be a whizz kid to get in there and even when you do.

729. You talk about community consultation. Issues that come up regularly with elected representatives are neighbour notification, which is the most basic form of notification and consultation, and the lack of compulsion on an agent to be legally bound to notify those who are most likely to be impacted by a planning application. That is what drives most people batty.

730. Whatever about your consultation on the Internet or sticking up posters or signs here and there, if that bit is not right, the rest will fall. An application comes in, and people know nothing about it; an amended application comes in, and, again, they know nothing about it. That is the stuff that can literally drive people to tears. They are forced most of the time to chase their tails and make sure that they are fully engaged with the Planning Service. In other words, the consultation is stood on its head and, in fact, does not exist.

731. What ideas do you have to ensure that that most basic form of consultation is adhered to? Should there, in fact, be some sort of legal compunction to ensure that those properties and the surrounding addresses that are impacted by a planning application are notified?

732. Ms Lois Jackson (Department of the Environment): I will try to explain it to you. Obviously, you know the way that it currently works. That duty would be transferred and placed on the planning authority, which would be the councils themselves. Other jurisdictions have moved away from applicants notifying neighbours. You cannot expect applicants to notify, because it may not be in their own best interests. Therefore, the planning authority is best placed to issue neighbour notification. That is what we currently do. Therefore, we will look at each application as it comes in and carry out the neighbour notification ourselves.

733. Mr McGlone: That is what you currently do. However, that is the bit that is deficient, because not everybody is notified.

734. Ms Jackson: It is not in statute.

735. Mr McGlone: I will explain the situation as I see it. I may be wrong, but I do not think so. Who you notify is entirely dependent on what the agent puts on the application form. In other words, it could be said at the time that a particular application will affect neighbour x, y and z or a, b and c.

736. Ms Jackson: We will look at that ourselves; we will not go on just what is in the application form. We will be able to pick up the dwellings that are on the electronic map system. Say that house number 32A, 32B or 32C has been built, but it is not on the form, we may be able to pick that up from the maps and from what is on the ground.

737. Mr McGlone: Sorry, but that is consistently missed. If that is in operation in some places, it is clearly not in others. I am talking not about recent dwellings being missed on the electronic mapping device, but about houses that have existed for 50 years. I had one shortly before Christmas that was not neighbour notified about the original or the amended application. That is just one example. The house that should have been notified has been there in its present form for 70 years, with people living in it. That gives you an example of how the system does not work, and that is what really causes people a lot of grief and emotional problems, especially if their problems and difficulties are neighbour-type disputes. Indeed, that can happen even within families.

738. Ms Jackson: I understand that.

739. Mr McGlone: That can exacerbate a situation. In fact, I can think of another case that happened just a week before Christmas when notification was not issued. In that case, we are talking about a house that has been there for 40 years. Those are two examples straight off the top of my head where neighbour notification was not done. In both cases, that caused a lot of grief. I can understand an agent being told not to put that on the form and not to mention it or worry about it because it would only cause trouble.

740. Ms Jackson: That is where the planning officers’ duty should come in, and it should also apply when the officers are carrying out site inspections. It should happen; it is remiss that it does not, but I appreciate your point. However, we have not gone down the route of making neighbour notification a statutory requirement.

741. The Chairperson: I am sorry, could you speak into the microphone, please.

742. Two points have been raised. Obviously you can use Google Earth. We talked about neighbour notification, and we raised that issue before. That needs to be put in statute. Notification is discretionary at the moment, so we need to look at it. Mr McGlone raised the issue before. Could we look at that?

743. Mr McGlone: I want to go back to resources and financing, which we discussed earlier with Maggie. The Department’s permanent secretary was before the Committee last Thursday. When I specifically asked him whether the transition would be smooth and cost neutral to local authorities, he said that he could not give that guarantee. I have already spoken to a number of my council colleagues and party colleagues about this. They have consistently been given assurances through the Northern Ireland Local Government Association (NILGA), various local government fora, and, indeed, the Assembly. Straight off, it appears that the matter is not on as solid ground as it was once upon a time. Therefore, the matter will clearly have ramifications for any transition, smooth or otherwise, to local authorities.

744. Those of us who have served and, indeed, still serve, on councils do not want another bill to be heaped on us — a bill that ratepayers will have to cough up for. Likewise, the big concern with a transition that would not be as smooth as planned would be that there would be excess staff about the place. That would be one of the first problems facing local government. Therefore, in many ways, the exercise could become academic, especially for the 26 councils, if the transition is not smooth and cost neutral.

745. Ms Smith: I will go back to what I was saying about how we are working in two ways to tackle that. On the one hand, we are looking at the fees structure. At the moment, that structure is quite odd in lots of ways, because the fees do not necessarily cover the costs of processing planning applications. Therefore, we are looking at that very carefully. We consulted on that quite recently, and we are preparing the papers as a result of that consultation. The idea and the aim are very much to make sure that there is a proper match between the structure of fees and the amount of fees coming in and the cost of processing an application so that the income is there to support the planning system.

746. On the other side, we are looking very carefully at the structure of the Planning Service. As you know, de-agentisation will happen at the end of March, so we will go into the new financial year with planning functions being part of the core Department. We have already looked at management structures and have done some restructuring and de-layering there. We are also looking at the wider structures and are making sure that we have the right number of people in the right places to service the new councils when they come into being.

747. Therefore, the approach is two pronged, and we are aiming to hand over a planning system that is properly resourced and able to carry out the functions that the councils need it to carry out.

748. Mr McGlone: You are aiming for it, but the permanent secretary cannot guarantee it. That is the dilemma that I am in, Maggie.

749. The Chairperson: I know that you explained the fee, but, let us be honest, a range of fees needs to be looked at. The delivery model needs to be part of the whole process. It is being worked on.

750. Ms Smith: Yes.

751. The Chairperson: Obviously, that will also be done through the fees structure. I do not agree with you that there will be proper fees for proper planning services in that structure. When things were good in the Planning Service, a lot of money was made. It was not all about wages or covering, because, let us be honest, a lot of that money went back to the Treasury. We all know about the argument that money was made, the workforce was increased and so forth; we have talked to the permanent secretary about that. What we asked for, as a Committee, was a proper model for delivery. That is the model that has to be handed down to local councils so that they can deliver development control.

752. I know that you are looking at the fees to deliver that. Mr McGlone’s point is that councillors see exactly what is coming down the tracks. All the processes need to be in place before any council can take them over. It may be outside the Bill, and work on fees, for example, may have been done; however, it is totally incorporated into what we are trying to achieve, which is reorganisation and so forth. This is a part of the whole process.

753. Ms Smith: It is absolutely, Chairperson. Your point is important. A whole package of work is being done on this, and the Bill is a part of that package. If we are thinking about where the Bill will fit with the future fees structure, I should say that it continues the power to charge the fee. However, the fees themselves are in separate regulations. The consultation, which we have finished and which you will see the outcome of before very long, will feed in to some subordinate legislation. There will be an opportunity for the Committee to look in detail at the proposals for the changes of fees.

754. The Chairperson: There needs to be a proper range of fees. Just because there are more applications for, for example, single housing, does not mean that we arrange the fees to suit that. It has to be in proportion and provide VFM, that is, value for money. The Committee has discussed some of the bigger developments and the range of fees that was charged in the past. That certainly needs to be looked at.

755. Ms Smith: Absolutely. The report that we will bring to you aims to do exactly that. It aims to put in place a fees structure that is realistic and fair to everybody.

756. Mr Kinahan: Would you consider getting a council to sit down and think it through from its point of view, now that it knows what is coming? It could assess what it needs to have in place, so that we know the costs from the other end. That is my concern. We know that a fees structure is needed to pay for it. However, I feel that we are moving into the dark and that we will not be ready for this.

757. Ms Smith: I am sorry, are you talking about the fees?

758. Mr Kinahan: I am just suggesting running a pilot scheme in one council; however, you may have an alternative plan that can tell you, from a council’s point of view, what extra resources councils feel they will need to take this on. Councils know what is coming from planning. If you were to sit a council’s chief executive down and ask them what they need to have in place in personnel and average running costs, you may find that the costs are much higher than we are estimating.

759. Ms Smith: The pilot scheme that the Minister is planning was one of the things that he announced in his statement at the end of November. That will kick in at the beginning of the new financial year.

760. The purpose of those programmes is to start looking at how all this will work when powers transfer to councils. Therefore, it will involve the councils and the Department testing the arrangements to make sure that we get the functional parts of the arrangements absolutely right before the powers transfer. The idea is to start with two or three programmes in different council areas and then to roll them out so that, by the end of the financial year, every council will, to some extent, be involved in a project working with the Department to test the new arrangements. All of us will be learning about exactly how the new powers will work in practice as we go along. It will be as close as we can get to the future scenario, without actually transferring any functions.

761. Mr McGlone: I am sorry; I may have been a wee bit distracted, but did you refer to the end of the incoming financial year?

762. Ms Smith: I was talking about the incoming financial year. The pilot programmes will start some time after May —

763. Mr McGlone: I am sorry, Maggie, what will be the extent, anticipated role and functions of those pilot programmes? What will they do? What does the Department anticipate those pilot schemes will do?

764. Ms Smith: They are there to involve councillors, council employees and planning staff in starting to look at and to test out the arrangements that will apply after the powers go to councils. It is a sort of practice run; it is almost a dry run. The details of how each pilot programme will work will need to be worked out between the council and the Department. Clearly, the programmes are there to benefit the councils.

765. Mr McGlone: Are we talking about pilot programmes running in shadow form? Will they not be making decisions?

766. Ms Smith: They will not be able to make any decisions, because they will not have the power to do so. However, they will be able to work towards a situation where they feel that they are acting as though they had that power. Therefore, it will build up over time.

767. Mr McGlone: That sounds like local government group therapy of some kind.

768. Ms Smith: That is an important point, because it is really about helping everybody to have the opportunity to learn about the new system, to understand it, to feel that they have the confidence, ability and capacity to act on the new system and to practise all that before it comes into effect.

769. Mr McGlone: OK. Thank you.

770. The Chairperson: I hope that you got some of the answers that you were looking for, Mr McGlone.

771. Mr B Wilson: On the first of a number of points that I want to discuss, we talk a lot about consultation and pre-consultation. However, it has largely been my experience that we are consulted and then ignored. How extensive will the consultation be? Are there guidelines about who must be consulted?

772. Ms Jackson: There will have to be. The local authority will set out to the applicant who they should consult about planning applications. That will be part of the statutory requirements of pre-application consultation. Lists need to be put in place, and there must be guidance that is well circulated and well understood in the area. We are fully aware that the matter does not rest in just one piece of legislation, and there will be more guidance to explain the process more fully. Councils will be able to advise applicants, who will then be required to carry out that consultation. The test then becomes whether they have consulted with them in the first place, the extent of such consultation and what was done to take on board community views. They have to explain that in the report that is submitted with the planning application. The planning authority involved has that strong power to decline to determine a planning application if it feels that the full duties of pre-application community consultation have not been met or if elements that it requested were not carried out.

773. Mr B Wilson: Evidence from Scotland suggests that pre-consultation is not working and that it has had to be strengthened because it has not been particularly effective. Do you have any thoughts on that?

774. Ms Jackson: The process is in its infancy there too. That is an area that is evolving and developing across the whole of the UK. It is certainly an area that everyone is very interested in. We are learning from any experiences that we have seen and that are happening in the other jurisdictions and from which we can gain. We have taken all that on board in devising our own requirements for community consultation and how we will explain that in subordinate legislation and detailed guidance.

775. Mr B Wilson: Will you take into consideration what is happening in the rest of the UK and then —

776. Ms Jackson: Absolutely, and that is all that is part of our research.

777. Mr B Wilson: Many of us are disappointed that you have decided to exclude the right to third-party appeals from the Bill. At present, there is a perception that, because applicants can appeal, the system is biased towards them, and, because of that, there is no public confidence in the planning system. Have you looked at that? Obviously, you have done some research on third-party appeals. Do you not feel that public confidence could be increased by including in the Bill the right to such appeals?

778. Ms Smith: It may be worth saying something about the way that the Planning Appeals Commission would conduct appeals under the new system. That is a concern. I know that you want to talk about a wide range of issues, so I do not want to repeat too much of what I said earlier, but the whole ethos of the system, which is set out in the Bill, is to focus on making sure that there is proper and intense involvement for everybody early in the process. As we go through the process, either of making the development plan or of a developer bringing forward a major application, we must also make sure that the public have the opportunity to contribute and that issues will be dealt with at those stages.

779. In the interest of public confidence, the statement of community involvement will give people the information that they need to prepare for and contribute to the process. From the beginning, someone who lives or works in the area should, by looking at the statement of community involvement, know that they are part of the process, that there is an opportunity for them to contribute, should they wish to do so, and that they should be able to plan well ahead for that contribution. As a result, the public can have confidence that they have a role in the process. That is one of things that is lacking at the moment.

780. Mr B Wilson: There is a great lack of public confidence in the planning system, particularly in the bias towards development. Sustainable development in particular should be taken into consideration. Everyone knows what they are doing as they go through the planning process at every stage, and they get as much information as possible. However, if the applicant does not like the result, he can appeal, but the objectors cannot.

781. I am concerned about what is not in the Bill. Things have been developing in the past few years in England and Wales. For example, there is the Localism Bill, the good neighbourhood agreements and, obviously, the developer’s contribution. How extensively do we use the developer’s contribution at present?

782. Ms Smith: The Bill gives us the opportunity to use it a lot more. One of the changes that the Bill will introduce is that there will be a greater opportunity for developer contributions to be made. At the moment, through planning agreements, the Department of the Environment can accept contributions from developers, but we cannot pass them on to anyone else. Therefore, any contribution that was received could be used only to support activity that was within the Department’s responsibility. The difference that the Bill will make is that it will allow the planning authorities to bring contributions in to the planning authority, that is, the council or the Department. That is covered in clause 75(1)(d) and 75(1)(e). However, it will also allow for a contribution to be paid by a developer via the planning system to another Northern Ireland Department. That changes the whole scenario, because it means that we can bring in developer contributions and use them for a function that is not a DOE function.

783. We are working on an example of that. In fact, the Minister will shortly be putting to the Executive a planning policy statement (PPS) that deals with developer contributions. Our Minister did that piece of work with the Minister for Social Development. The purpose of the developer contribution is to support social housing.

784. Therefore, on the one hand, you have a new social housing policy that the Minister for Social Development has developed, and, on the other, we are introducing a planning policy statement that will allow the planning authority to collect a sum of money from developers who are bringing forward housing developments and to make sure that that gets to the Department for Social Development (DSD). Clearly, that can come into effect only with this Bill, but we will be consulting on that very soon.

785. Mr B Wilson: That money can go to local Departments. Is that correct?

786. Ms Smith: Through this Bill, the PPS, which we are bringing in, and the social housing policy, which the Minister for Social Development is bringing forward, will operate together to require developers to hand over to the Department for Social Development some money that comes from housing developments. That money can then be used to provide social housing.

787. Mr B Wilson: Does that mean that a council could not use that money for, say, a new community centre?

788. Ms Smith: That could be done in other ways.

789. Mr B Wilson: The council, as the planning authority, would get that money. Does that then mean that they should not be able to use it as they feel fit?

790. Mr Kerr: That is what that clause facilitates.

791. Ms Smith: That clause allows for that.

792. The Chairperson: For clarification, did you say that there will be another planning policy statement?

793. Ms Smith: Yes, PPS 22.

794. The Chairperson: OK, that makes PPS 22, 23, and 24 — I think that that is enough. Can you please clarify what clause you are referring to?

795. Ms Smith: Clause 75(1)(d) states:

“requiring a sum or sums to be paid to the authority".

796. Clause 75(1)(e) continues:

“requiring a sum or sums to be paid to a Northern Ireland department".

797. The Chairperson: Mr Wilson, are you cleared up on that subject?

798. We will still go back to the issue of third-party appeals. The issue is about whether there are meaningful contributions and what people think of that where objections to planning applications are concerned. There still needs to be some mechanism to deal with that.

799. We received more responses today, and there seem to be more and more about that issue. Therefore, I think that you will be hearing a wee bit more about third-party appeals, and perhaps we will try to influence the Minister to look at that. In all the processes, it seems on the face of it that it is fine to be inclusive, but I think that there needs to be a proper appeals mechanism. However, we will no doubt come back to that.

800. Mr Kinahan: I am certainly concerned about the timing. You raised lots of matters that need to be clarified by the end of the year. I thought that, during Question Time in the Assembly Chamber, the Minister indicated that he wanted this Bill to come in within six months. We need to try, at some stage, to get a handle on when we are going to get these provisions in place.

801. My next concern is about the hearings. Your submission states who a council could ask to a hearing and who it could not. Sometimes in councils things are not quite as fair as they should be. Is there an appeals system to make sure that people are being included and that they can appeal to somebody?

802. My last question is about equality issues, but I may have missed any discussion about that when I went into the Assembly Chamber. How will you put robust guidance or rules in place so that a council that is very much one sided, from, say, a sectarian point of view, does not exclude the minority but still works democratically? I do not know how you square that, but I have seen it happen in council. I am not sure that the issue is always necessarily sectarian, but there are lots of different ways that someone can be left out.

803. Ms Smith: Picking up on the equality point first, a council is a public authority under the Northern Ireland Act 1998 and is bound by section 75. Therefore, in carrying out its functions, it must carry out the equality and community relations duties in section 75.

804. I think that you were also touching on the function of the council itself.

805. Mr Kinahan: Yes.

806. Ms Smith: That is covered in the consultation on governance that is going on at the moment.

807. The Chairperson: I am sorry to interrupt, but is there anything in the Bill to ensure that local councils carry out their section 75 duties?

808. Ms Smith: That is not in the Bill. All that is covered in the Northern Ireland Act 1998, under which councils, similar to the Department, are bound. Therefore, they operate under the same provisions as other public authorities.

809. The Chairperson: Peter may know the answer to this, but how is that monitored to ensure that those provisions are met?

810. Ms Smith: Angus may want to say something about the monitoring process that we are committed to.

811. Mr Kerr: As you know, from Thursday there will be a requirement to monitor the local development plan. That will end up being an annual requirement to show how the development plan is being implemented. It will include looking at any impacted flow from equality requirements and suchlike. Of course, as we talked about, we have the facility for the Department to intervene at various different points if needed. That may be the case if something is going awry with how a council is carrying out its section 75 duties, and the Department may, for example, take over a planning preparation or call in a planning application. Therefore, those facilities are there.

812. The Chairperson: Obviously, we need to look at this now because it is a major function that councils will carry out. Do you wish to raise another point, Mr Kinahan?

813. Mr Kinahan: No. I raised the issue of hearings and whether a system was in place.

814. Ms Jackson: Are you talking about the pre-determination hearings, as they are referred to in the Bill?

815. Mr Kinahan: I cannot remember whether you cleared up the point about someone’s being excluded.

816. Ms Jackson: The pre-determination hearings are dealt with in clause 30. As I was going to mention earlier in response to something that you said, those hearings are the facility to allow objectors to have their case put forward to a council or a committee of the council before an application is determined. Therefore, it is another route and another facility for objectors. The details of that and to whom it will be open will, again, be prescribed in subordinate legislation. The issue is one for councils, in the sense of finding resources to allow hearings on all planning applications or on just certain types. At the moment, we envisage that there would be mandatory and discretionary hearings, and it would be for the discretion of individual councils to decide what to hold a hearing for.

817. Mr McGlone: For Mr Kinahan’s benefit, I should point out that I asked earlier that full details of any equality evaluation that had been carried out either by the Department or on its behalf be provided to the Committee for scrutiny. The issue of monitoring came up in a previous document on local government reform, and it seemed to be that where the monitoring role should kick in was quite loosely thought out, if at all. There was a suggestion about having independent monitoring officers, and questions were asked about where they should come from. That is because if those officers were employed by the council, they would clearly not be independent of the council, and nor could they be. I am trying to get a handle on how, in practice, this monitoring would be done. If the Department does it purely on an annual basis, things could be happening. I want to get a bit of a handle on the practicalities of the outworkings of this. How, in fact, would this be done?

818. Mr Kerr: I am talking about monitoring the local development plan. I am not talking about the local government monitoring functions, such as the centre audit, that would be carried out. It is envisaged that the monitoring would be done against indicators that would be set in the plan. The locally developed plan would have objectives and achievement targets. That is particularly true of the new style of plan that we are trying to move to, which has a more spatial planning approach. The annual monitoring would be done against those indicators to determine the extent to which the plan is or is not being delivered. That would allow the council to make changes, as and when required, to allow the plan to deliver effectively if there is a problem.

819. Mr McGlone: I want to tease this out. Is it the case that, if the monitoring officer or whoever discovers that something is askew, the sequence will be that there will be an edict from the Department asking that it be put right?

820. Mr Kerr: That is not necessarily the case. The council will carry out the monitoring. Let us say, for example, that it is monitoring the housing issues of the plan —

821. Mr McGlone: This goes back to the point of whether the councils will monitor themselves.

822. Mr Kerr: Yes. The councils will monitor the implementation of the plan and will have to report to the Department. There will be no heavy-handed approach from the Department, because there is nothing specifically in the Bill about the Department’s saying that a council must do x, y or z. Therefore, it will adopt a light touch in those circumstances. However, it could be clear from a council’s monitoring that, for example, there was a problem with housing and that much more housing was being built in the planning area than was originally envisaged in the plan. In that unlikely situation, the council itself would probably want to take action and review the plan to add further land to it. However, in a scenario where the council is not doing anything about a particular situation, the Department will have the opportunity to contact that council. It is also important to realise that, in the development plan approach, there should be close links between the councils and the DOE, just as happens in other jurisdictions all the time. A lot of this should not be a surprise.

823. Mr McGlone: What I am trying to say is that, if the council is monitoring itself, it is not going to be critical of itself to the point where it has to invite the Department to become involved.

824. Mr Kerr: We are talking only about the implementation of the development plan.

825. Mr McGlone: I am thinking out loud. The only point at which I can see something like that happening is, for example, where there was not enough compliance with the regional development strategy and not enough land was allocated for a specific purpose and had been kept. We went through all that earlier. Is that the sort of thing that is envisaged, or is it meant to deal with situations where, for example, land is inappropriately zoned and is picked up in a monitoring exercise? I will say no more than that, other than to say that that is land that should not have been zoned. Is that the point at which the Department’s involvement would kick in?

826. Mr Kerr: If land were inappropriately zoned, one would think that it would be picked up during the independent examination. Hopefully, a sound plan emerges from the independent examination with a set of clear objectives and a policy direction that the council wants to go in. The council is responsible for monitoring that. The Department has agreed broadly with those directions. The council monitors how well it is achieving the set objectives. Presumably, because the council itself sets those objectives, it will be keen to see that they are met. The Department is always in the background, but, essentially, we are handing the local development plan powers to the councils. It is their responsibility to ensure that they achieve whatever it is they want to through their local development plans. That is the new direction in which we want to go. We hope and trust that the councils will take on that responsibility and deliver on it. I am sure that they will.

827. Mr Buchanan: I want to return briefly to the issue of the developer contribution and levy. You said that the Minister is bringing in PPS 22 on the back of this Bill to deal with that.

828. However, I am not so sure that the community will still be the beneficiary. Will this still be under the Department’s control, or will it be under that of the council? I just want to make sure that the community that is affected will benefit from the developer’s contribution. That is where there is a difficulty, in that no community benefit is coming from some of the huge developments that are going into some areas. We must ensure that the right mechanism is there so that the community that is affected will be the beneficiary. The benefit could be a sporting facility or something that is lacking in the area and that needs to be put in place. You mentioned social housing. That is one part of community benefit, but it is only one. A lot more could be done.

829. Ms Smith: Can we break that down? The Bill provides the mechanism for the transfer of the resource. What is done with that resource is a different matter in lots of ways. The work that our Minister and the Minister for Social Development have done and that I talked about is one way in which developer contributions can be used. That does not limit it only to social housing; it is just that the policy happens to have been brought forward for that purpose. There could be other ways that developer contributions can be used. Mr Kerr, do you want to add to that?

830. Mr Kerr: No. I think that you are absolutely right. Councils could use developer contributions to provide facilities, of whatever nature, that are required locally. Indeed, councils are best placed to know what those are.

831. Ms Smith: By broadening the range of authorities that can receive money, the Bill provides opportunities that people will be able to use in the future.

832. The Chairperson: Can I ask for clarification on whether the main body of the planning policy statement refers to social housing? Is that correct?

833. Ms Smith: The planning policy statement that the Minister has been working on is written specifically for social housing.

834. The Chairperson: Obviously, clause 75 is about contributions.

835. Ms Smith: Clause 75 will allow for the money to be transferred from the developer to the planning authority or to a Northern Ireland Department. It does not say anything about how it should be used. It provides an opportunity — it is enabling.

836. The Chairperson: I wanted clarification on another planning policy statement. I look forward to going through that one as well.

837. Thank you for your time. No doubt we will be seeing you soon.

20 January 2011

Members present for all or part of the proceedings:
Mr Cathal Boylan (Chairperson)
Mr Patsy McGlone (Deputy Chairperson)
Mr Thomas Buchanan
Mr Willie Clarke
Mr Danny Kinahan
Mr Alastair Ross
Mr Peter Weir
Mr Brian Wilson

Witnesses:

Ms Suzie Cave
Dr Ruth McAreavey

 

Research and Library Services Queen’s University Belfast

Ms Lois Jackson
Ms Irene Kennedy
Mr Angus Kerr
Mr Peter Mullaney
Ms Maggie Smith

 

Department of the Environment

838. The Chairperson (Mr Boylan): We welcome back Suzie Cave from the Assembly Research and Library Services. I also welcome Dr Ruth McAreavey from Queen’s University Belfast. Members have been provided with a copy of today’s submissions.

839. Ms Suzie Cave (Research and Library Services): Today we are going to look at the research paper that deals with the enforcement elements of the Bill. However, before we do that, I will give the Committee a quick recap. Last Thursday, Dr Ken Sterrett took you through the first research paper, which deals with the first two Parts of the Bill. On Tuesday morning, Dr Geraint Ellis looked at the second research paper, which dealt mainly with Parts 3 to 14 of the Bill. That afternoon, he took you through the third research paper, which looked at community involvement as a general theme throughout the Bill.

840. This morning, we will look at the final research paper. With us is Dr Ruth McAreavey, who is also from Queen’s. The paper looks at the remaining parts of the Bill, which deal with implementation, performance and decision-making. Dr McAreavey will take you through the paper, and we can then open the meeting up for discussion.

841. Dr Ruth McAreavey (Queen’s University Belfast): Thank you very much, Suzie. As Suzie said, this is the final paper in a series of four. I will highlight issues of implementation, performance and decision-making while thinking about capacity, delivery and quality as they relate to the Bill.

842. The delivery mechanism represents the core aspect of the Bill, and, for the Bill to be successful, it is crucial that that mechanism is appropriate and effective. In other words, is the plan for implementation fit for purpose? That is the question that needs to be thought through throughout the Bill.

843. Some of my colleagues highlighted how the Bill expands our understanding of planning from one of land use to one that encompasses a wider set of issues that affects areas such as social well-being and general quality of life. That will require a paradigm shift, that is, a major sea change, for the many and varied stakeholders with which the Bill will need to engage. Delivery, which is at the heart of effective implementation, is key, and I think that success will be achieved only through an integrated system. Integration across all the stakeholders and institutions that will be engaged will be a critical aspect of delivery.

844. I highlighted in the paper other matters that will feed in to those delivery mechanisms. I will discuss those in a bit more detail. I will mention briefly the key stakeholders’ buy-in and participation. In a sense, stakeholders will be much more diverse and varied and will encompass a much wider suite of interest groups, simply because of the sea change that the Bill embraces. There are questions in those elements to do with leadership and vision. To create places, we need to think about leadership. Who is going to create the vision? What will success look like? What is it that we are ultimately striving for?

845. Some attention needs to be paid to the quality of the built environment. Issues of quality are fundamental to communities’ well-being. People value quality buildings and a quality built environment, because it creates a sense of community. Therefore, that needs a little more consideration.

846. Some thought needs to be given to the scheduling of subordinate legislation and of any supplementary guidance that is coming through, because, again, that is at the core of delivery, and it will be at the core of the way the institutions are integrated.

847. More transparency and clarity in the roles and responsibilities throughout the process of changing the new system will be necessary. I think that particular opportunities are arising with the reform to local government and in the proposed new council responsibilities. Some connections can be made with that. The Bill will engage with an increased number and increased diversity of stakeholders, so it is clear that there will be resource requirements in skills development, education and capacity building.

848. Therefore, issues of process relating to equality, transparency and impartiality are at the core of delivery and implementation, as are issues to do with the cultural shift that will be needed in the interest groups. The issue of general understanding and interpretation of what planning is, as well as buy-in from the new interest groups, must be considered. Therefore, a cultural shift in mindsets will be needed. The third issue to consider is practice. What are the delivery mechanisms to support the action?

849. I suggest that there are a number of barriers that might impede effective delivery. If the establishment of the new organisational structures is not done correctly, it could cause problems. There are issues to consider with what the new relationships are, how collaborations are encouraged and what the framework is for future collaborations. That could perhaps be done in joint council working, for example. There are potential barriers in the adoption of the new functions and powers, as well as in expertise, personnel and the technical aspects of planning. We are dealing with an increasingly complex landscape, and there are increasingly complex issues to consider.

850. I want to talk about three major themes that cut across the ideas of implementation, performance and delivery mechanisms. As I said at the outset, integration is completely key to the success of the Bill, and issues of governance are related to that. I think that significant opportunities may have been missed in making connections to the emerging functions and activities in councils. Some useful examples might include the idea of the partnership panel and the power of well-being that is proposed in the reform of councils. There are questions about how the Department of the Environment (DOE) can ensure that an overly complex process is avoided and that we achieve an integrated approach to governance structures.

851. Creating a vision is another area to consider. Who will be in a position to be able to assume a professional leadership role? In England and Scotland, the position of chief planning officer has been created, and that person provides a professional leadership role that complements administrative leadership. Therefore, there is a question about who has the power to provide leadership through a strategic and integrated approach. Is anyone in a position to provide a similar sort of role?

852. Clearly, stakeholders will be pivotal in helping to adapt to this new, enhanced understanding of what planning is about. Questions may be asked about how to build the capacity and competency of many different stakeholders; how to achieve their buy-in; how to educate stakeholders to understand that they are a part of this wider planning process; and how the Committee and the Department can ensure the advocacy and competency of local communities or, indeed, vulnerable groups, so that they are able to participate fully and extensively in the planning process.

853. As I move to issues about capacity and transparency, I will ask whether the new operating arrangements have been fully thought through. If we consider departmental intervention and direction, there are questions about the extent of the Department’s powers to direct councils to work together. In England and Wales, legislation has provided for joint committee working that gives statutory recognition to that work. Therefore, potential opportunities exist in that area.

854. There is a degree of vagueness in performance management. Although it is clear enough in development management, the wider activities and responsibilities that are associated with this wider understanding of planning seem to be lacking in clarity and detail. For example, who has the expertise and capacity to evaluate performance? What is the chain of accountability and assessment? Who measures which organisation? There are questions about the de-agentisation of the Planning Service. How will that affect the management and performance of the Department’s planning functions?

855. There is a lot of interest in the scheduling, timing and content of the subordinate legislation and supplementary guidance. A lot of the details about delivery mechanisms and an integrated approach will follow in supplementary subordinate guidance and legislation. Is there a planned timetable for that? What is the form and content of that supporting legislation and guidance?

856. An increased level of skills will be necessary to implement the Bill. When planning reform was done in England and Wales, it was recognised that there was limited expertise. A planning delivery grant was introduced to incentivise performance and support capacity. Further powers were awarded to organisations such as Planning Aid to provide assistance and advice on all aspects of planning. That greatly augmented the process and helped to develop the skills and capacity of the wider stakeholders. Therefore, the question is about how the gaps in expertise and skills will be managed through the Bill. What measures will be taken to fill any gaps that may exist? There are also questions of resources to consider, because it is clear that building skills and developing capacity will require more money. Given that we are facing budgetary cuts, these are real issues for implementing the Bill.

857. If we consider the quality of the built environment, as I said at the outset, individual well-being is very closely correlated with that. Increasingly, the public judge planning outcomes on the quality of the built environment. Therefore, the Bill has a very important role to play in that. However, it has not provided for good design, and insufficient attention has been paid to the design and quality of the built environment.

858. The Committee may wish to consider some of the issues that were raised in the consultation responses. Those are included in the paper but have not been dealt with fully in the Bill. I talked already about issues of timing and the practicality of the transition. Another issue is the different roles and responsibilities and the potential for power imbalances between the key players. There are questions on quality, standards, probity and accountability in local councils, and some of those issues are under consultation through the reform of local government. However, planning is particularly prone to corruption, and that has certainly been shown to be the case in other jurisdictions. Tightening up issues of probity in the Bill should be an area for consideration.

859. The issue of balancing and accommodating locally led plans while ensuring a consistent quality approach was also raised in the consultation responses. How will any tension between those be managed while ensuring that local areas are able to articulate their needs and take a lead role?

860. As I highlighted, another issue that was raised was the resources for the implementation of the Bill. I think that that will be critical.

861. I mentioned the joint planning committees in England and Wales. That is a good example of practice elsewhere that may help to inform the implementation and delivery mechanism here. In England and Wales, communities are also incentivised thorough measures outside the Planning Act 2008. That may have resonance here, as we are currently consulting on the reform of local government. Most recently, the UK coalition Government’s Localism Bill will ensure spending at a local level through the community infrastructure levy. That will directly address issues of resources and ownership by incentivising key stakeholders. Interestingly, that Bill will allow the community the right to challenge when dealing with issues of accountability and transparency. Through that mechanism, therefore, communities can scrutinise the councils’ performance.

862. With regard to supporting organisations, I have already mentioned Planning Aid in England, which is supported directly through planning legislation. Such organisations could have a key role in the process of developing skills and capacity, ensuring stakeholder buy-in and broadening the range of stakeholders that become engaged with the Bill.

863. The final part of the paper highlights further contentious issues, which relate to collaboration and policy integration. That will be a challenging aspect of the Bill; ensuring this interpretation so that other sectors are engaged. Other sectors, such as health, education and wider social care, feel that they have a legitimate role to play in that planning process.

864. I have probably said enough already about budgets. With regard to delivery and equality, there is the question of ensuring effective, appropriate community engagement. My colleague Geraint Ellis spoke about that on Tuesday. The question is how the Department will ensure that expectations are fulfilled and that true community engagement has been achieved by local councils. I will stop there. There is a lot to consider.

865. The Chairperson: There is a lot to consider. On behalf of the Committee, I thank Queen’s University for breaking this down. You have concentrated mainly on the new parts and have, obviously, taken into consideration the elements of the legislation. We have a lot of food for thought. There is a short time frame, and we need to look at it. Over the past couple of days, members have gained a better understanding. A big issue for us now is that we are receiving responses to the consultation. They are being mixed in with some of the things that you have highlighted. I will pick up on a few things. You have certainly posed a lot of good questions to the Department on the Committee’s behalf. We will forward the research papers. Hopefully, we will get a written response. I will discuss that when the officials come to the table.

866. Governance is key to this in terms of the other legislation that is coming forward. There is a commitment to have the governance in place before it is rolled out. You mentioned leadership issues. I want to expand on how that works in other areas. There is a serious need for capacity building and training and everything that goes with that. You say that there will be a sea change not only for stakeholders, but for all those involved. Not only will the Bill be a major piece of legislation, but policies that support it and how it rolls out on the ground will be significant. Perhaps you can expand on how it happens elsewhere, what you have learnt, what we can learn from it and what policy we need to bring to it.

867. Dr McAreavey: We have looked at Scotland and England. From a legislative perspective, Northern Ireland has a chief medical officer. That is a professional leadership role. It is like the old saying: if you do not know where you are going and you do not have a vision, you will end up lost and without direction. Strategic vision, understanding and professional legitimacy are needed. A chief planning officer could fulfil that role: setting a precedent, taking planning in new directions and trying to engage with the range of stakeholders and ensure that there is direction. In the absence of that, it is more of an administrative leadership role. It does not necessarily get the same extent of institutional buy-in. It may not gain the support of other stakeholders in the health and education sectors. The role of chief planning officer could play a major part in strategic direction, engaging across the Departments in order to achieve the cross-sectoral integration and collaboration that is needed while also having legitimacy in that profession. There are two functions.

868. The Chairperson: I have had indications back from local councils about performance management. That has been an issue, even in central government with the Planning Service. How can we get that right, and how do we go about the terms of reference and the checks and balances to ensure that that is happening? I firmly believe that there should be a degree of performance management.

869. Do we also need to look at a review of that whole process after a number of years? Once the legislation and policies are rolling out, do we say that after two or three years we should look at all that? Perhaps you could talk about performance management first, and then a review process.

870. Dr McAreavey: The Localism Bill has some interesting examples of possible good practice. Obviously, that is in the very early stages, but if we are thinking about performance management then the community right to challenge could give that degree of transparency for councils to be directly and openly accountable to their communities.

871. Performance management should be ongoing, not a one-off thing that happens with the report filed away but something that becomes part of the process so that there is constancy. One measure used in England and Wales is a test of deliverability. Questions such as “What is the deliverability of this?" and “What is the evidence indicating?" are constantly asked. Those tools can be used as part of an ongoing review of performance.

872. The Chairperson: I remind members that the research has been done on behalf of the Committee. I know that in some cases members have set only questions in respect of the work of the Committee. We welcome the three elements that your paper mentions: collaboration and policy integration, budgets and resources, and delivery and equality. Those are key elements that we need to be asking the Department about. You have touched on them broadly, but within that there are a number of questions. I thank you for your paper.

873. Mr Kinahan: The task that we have ahead of us of trying to get all this in place worries me. Did England and Wales start in a similar manner in that the intention is right, what we are trying to do is right, but they then learned so much over time that they had to keep bringing in reviews and new legislation to get it right? Will the route that we are going down work? There are lots of different things that we have to get in place, including other legislation. Can you see all that falling into place in time? You have given us lots of points to be concerned about, but it looks as though England and Wales had something similar but learned and got it all working in time.

874. Dr McAreavey: There are areas that can be dealt with now: for example, under what conditions councils will work together creating plans. That can be tightened. There is also room to tighten the line of accountability. England and Wales introduced additional Bills retrospectively. We could avoid going through that process by addressing some of the difficulties that they had: for example, by joint committee working.

875. Mr B Wilson: We have clear planning rules and regulations, based on fairly rigid criteria. In the Bill, we are talking about involving issues such as social well-being and quality of life. Does that mean that planning decisions will be much more subjective and open to interpretation?

876. Dr McAreavey: The Bill will introduce a lot more debate about what the community wants to see when it is contributing to statements of community involvement or the local planning process, because it is subjective. However, that does not remove the fact that there are still technical aspects of planning. The Bill will bring the subjective and objective approaches to planning together. It is much more around collaboration, building agreement and creating place, which obviously engages with a sense of well-being and community.

877. Mr B Wilson: The legislation appears to discuss the councils’ role, but it does not actually state how the councils will fulfil that role. There are no guidelines as to how those decisions should be made within the councils, and perhaps by the chief planning officer. Is there no need for some stricter guidelines?

878. Dr McAreavey: Do you mean individually on planning —

879. Mr B Wilson: No, I am talking about the legislation. At the moment, councils seem to be totally free to decide how they are going to make decisions on a particular planning application. On that basis, do we not require some guidance on, for example, a separate planning committee, the role of the chief planning officer or the potential conflicts between the chief planning officer and the council?

880. Dr McAreavey: There is room for more clarity on those different functions and relationships. Ken Sterrett talked about the local plans last week. Individual planning applications will have to relate back to the strategic plans that areas and councils will agree on. There is something in there, but I agree that there is a need for more clarity on the relationships and the issues of probity. That is where connections can be made with local government reform, because that is clearly about governance and accountability.

881. Mr W Clarke: I think there is a danger that we are sleepwalking through the whole process of delivery. Many senior people in Departments are not taking it on board at all, because they are thinking that they will be getting a pension in a couple of years, so they are not going to give much thought to it because it is not going to impact them. The Bill needs to focus on identifying the personnel in all the Departments who will bring about the change. It might be a senior planning officer who is designated to do that. What are your views on that?

882. It is a bit like the reform of policing. The main consensus of the Patten reforms was that we wanted good community policing, but when it came to the delivery of that, that is not what happened. There was community policing to a certain extent under neighbourhood teams, but they got it seriously wrong in relation to the amount of resources they put into community policing. It is the same sort of thing; we all know where we want to get to, but how do we deliver that?

883. I see a role for transitional committees, yet the funding for those committees has been cut. I think there is a job to be done in looking at community strategies and community plans. Resources should be made available now to start doing that work without holding back. You can guarantee that, if England and Wales failed and made serious mistakes, we will certainly fail if we do not learn the lessons of what happened there. It may be a matter not for you but for the Department, and I will probably put the same questions to the officials. We need to up the ante slightly.

884. Dr McAreavey: I agree that that is where we need the professional leadership of a chief planning officer. In order to achieve the major changes that will be required, the shift in mindset and the cultural change will have to come from the top. You are right. Someone needs to provide that direction and ensure that the institutional capacity is there to deliver, or that is not going to happen. There will be a vacuum of direction, vision and leadership. That is a missing piece of the puzzle which is urgently needed.

885. Mr McGlone: Thank you for your paper. I read it last night, and a number of things struck me. I will deal with them in no particular order.

886. Do you have any thoughts on the issues of equality, transparency and implementation? In the course of your research, have you encountered other aspects of local government where safeguards and procedures are inbuilt to insure against and prevent lack of transparency, discrimination or inequality in the implementation and decision-making processes?

887. I have a number of questions, and I will go through them in order. I do not expect you to have answers on the tip of your tongue, but presumably you have looked at these things as a part of your research.

888. You mentioned a very important point which is key to all that: the timing, context and detail of the subordinate legislation. We can sign off on a Bill here, but, if there are so many aspects of it that impact in a very substantial and material way on the implementation of it with regard, not exclusively, but particularly to those issues which I have just outlined, we need to get detail and a time frame for that.

889. A big theme of what you talked about was the quality of the built environment and the well-being issue. You are an academic with a lot more experience of those things than any of us have, including me. Perhaps you can just tease out for me how that quality of the built environment is rolled out. Do you envisage it as based exclusively or mainly upon a series of PPSs from regional government, or do you envisage a role for local government in that? Many of us have concerns about a degree of latitude being offered to local government in its interpretation of policies as given out by regional government.

890. The well-being issue is a bit like grandma and apple pie. “Well-being" sounds great. I know the general concepts of it that there can be about the place: how communities and housing estates develop and that type of thing. Can you give us any more pragmatic examples of how that concept has been implemented in a meaningful, tangible and beneficial way in other jurisdictions which will give us a flavour of it? This is the sort of stuff that we will be asked about at community and local level.

891. The Chairperson: If there is any other information, you can supply it in writing.

892. Dr McAreavey: Yes. I will provide examples of well-being in writing.

893. As to the quality of the built environment, the Bill is setting a framework for what we mean by quality. Sufficient attention has not been paid to that. It is not accounted for in the Bill. I can give you an example. In English planning law, “sustainable development" was defined to include good design. The Planning and Compulsory Purchase Act 2004 was amended so that in:

“contributing to the achievement of sustainable development",

894. a planning body:

“must (in particular) have regard to the desirability of … achieving good design."

895. So it needs to come from the top, from within the Bill, and then be imbedded throughout the process. Again, an important function for a chief planning officer would be to have regard to good design and ensure that that permeates the system and the process.

896. Mr McGlone: I am not sure where the design guide is, but I think that it is close to completion. I am thinking outside the box. You touched on the sustainability aspect, which is a very important issue. I do not know whether that is intended to be included in the design guide, but it could be a read-across for us from the Bill to be incorporated in the design guide. Is that an idea?

897. Dr McAreavey: Yes, but I also think that it needs to be included in the Bill, because that gives it gravitas across the rest of the legislation and supplementary guidance. Your other question on implementation —

898. Mr McGlone: On implementation, you mentioned the equality and transparency aspects and subordinate legislation.

899. Dr McAreavey: Sorry, can you remind me of the question?

900. Mr McGlone: My first question was on the transparency issues and consistency, and the impact that the equality aspects have on that. There may be another model that works exceptionally well in other jurisdictions or local government areas, not necessarily in these islands but somewhere in mainland Europe. I do not expect to have that off the top of your head.

901. Dr McAreavey: I will come back to you on that.

902. Mr McGlone: Finally, you will probably repeat what you said earlier, because I picked up on your point. How does subordinate legislation impact on key thematic aspects of the Bill?

903. Dr McAreavey: It impacts massively, and there needs to be more transparency and clarity around that. There needs to be a clearer idea of what is going to happen around that, including what resources have been allocated for that and all of the issues that I touched on.

904. Mr Weir: These may be more comments than questions, but you may wish to respond. First, we need to keep in mind what Brian said about some of the issues — some of the wider concepts of well-being, broad community input and seeing what is good for the community in the broader sense. There is almost a differentiation in that a large number of those aspects are particularly significant when you are looking at a more strategic plan for an area, but may be less directly relevant and there may be less room for manoeuvre in the case of an individual planning application. There is a difference between the wider vision side of planning and direct development control. I suspect that that will be more restricted in the case of someone wants to build an extension to their house.

905. Secondly, you stressed the importance of subordinate legislation, but the problem with looking at the Bill is that a lot of the vital stuff will not be dealt with by legislation at all. That is more to do with where the Committee will make recommendations. A lot of it is about implementation issues. For example, you stressed, quite rightly, the need for capacity building. My guess is that capacity building will not be laid down in the Bill or even under subordinate legislation. It is actually a range of things that will have to be done. Although there is focus on other groups, I suspect that it will be done particularly by councils and councillors. That is probably the biggest single aspect of capacity building, but it goes a lot wider than that. We have to recognise that, whatever recommendations we make, it goes well beyond what is in the legislation or even things that will potentially appear in subordinate legislation.

906. The third aspect will be very difficult to crack. Clearly, there will be protections in terms of governance, for example. With all aspects of planning, it is a question of where you find yourself on the balance of a necessary tension that has, on the one hand, pure consistency and equality to ensure that every decision is done exactly the same way. In theory, if that were taken to its extreme, there would simply be a rigid set of policies, applications would be made to one central planning body in Belfast or wherever and there would be no other involvement anywhere. That would give a computer-type, consistent approach. On the flip side of the coin, you want people to have a wee bit of consistency and certainty in that regard, but there has to be a bit of localism and flexibility, which is where the tension will lie.

907. For example, there may be some communities that say that their major problem is a lack of housing and that they need additional building. On the flip side of the coin, there may be other areas and other councils that feel that the most important thing is the protection of the environment, and they do not want any additional building lines or additional bits within that but want to go a slightly different route. There will be those tensions. If everything is absolutely consistent and there is equality across the board, there will not be a one-size-fits-all solution.

908. There is a tension between ensuring that somebody as an applicant has a consistent and equal approach and that localism and flexibility. In the broader sense, irrespective of whether it is councils or the Planning Service doing it, trying to get that balance absolutely right will always be a very difficult thing to do. You need to bear both those issues in mind when looking at how you design a structure. I suppose that is more of a comment than a question.

909. Dr McAreavey: I agree that there is that tension between ensuring a strategic approach with degrees of consistency and also paying attention to issues of localism. There is going to be a bit of tension. However, the beauty of this approach to planning is that it does provide for local approaches. It is about engaging with the community and ensuring that there is a locally based approach. That just reinforces the importance of having a wide breadth of stakeholder buy-in, so that education, health and other interest groups are part and parcel of the process.

910. Your second point was about subordinate legislation and capacity building. I agree that there is going to be a lot of detail in supplementary guidance, but I also think that there is potential for the Bill to be a bit more direct about the type of organisations and the type of resources that it might provide to other agencies, as is the case in England and Wales.

911. Mr Weir: Again, I question whether that will be directly in the Bill. Obviously we are going to have to produce a report, and it strikes me that there may or may not be a whole load of amendments. It is too early to tell at this stage. However, it strikes me that, irrespective of that, there will be a chunk of stuff that we will have to put in as general recommendations on how it is implemented and brought about, which will fall outside the direct wording of any piece of legislation. That is the point that I was making.

912. The Chairperson: You mentioned flexibility, and I think that is key. We will have rigid policies, but we certainly need an element of flexibility.

913. Mr Buchanan: Collaboration and policy integration are challenging and interesting concepts, but it is about getting agreement from the various bodies on locally based solutions. Are there any models of that type of collaborative working in England or Wales that point to the effectiveness of it and which we could obviously tap into?

914. Dr McAreavey: Do you mean across sectors?

915. Mr Buchanan: Yes.

916. Dr McAreavey: That is about to happen here if community planning goes through. Councils are charged with engaging with their communities through the reform of local government. There are certainly examples of cross-sectoral working through other partnerships in Northern Ireland, but also in England, Wales and Scotland, where strategic partnerships have come together and worked through strategic issues. We could provide more on that.

917. Mr Kinahan: I want to ask a little supplementary question. You said that we need someone with vision. Do you think that we need to have someone with vision in each council as well? I get the impression that we will need to have someone to direct matters from councils, given that we are to have local plans.

918. Dr McAreavey: Yes, we need someone to feed in to the chief planning officer. There needs to be strategic vision from the councils.

919. The Chairperson: Thank you very much. No doubt we will be in touch.

920. Gentlemen, we move on to the departmental briefing on the Planning Bill. I welcome Maggie Smith, Irene Kennedy, Angus Kerr, Peter Mullaney and Lois Jackson.

921. Maggie, you have heard all the research briefings. We have a series of questions to ask. We do not propose to go over all the questions that the research team at Queen’s University put together, but you will have a chance to respond to them in writing. You have heard some of the key elements.

922. The Committee has been receiving more responses, and it is key that members take them all on board. We may consider breaking them down and writing to you for responses. I will open up the meeting to you so that you can give your presentation.

923. I have to nip out for a couple of minutes — I will be back soon — so while I am out, another member will take over the role of Chairperson.

924. Ms Maggie Smith (Department of the Environment): Thank you very much, Chairperson. The Committee asked us to look at the provisions of the Bill that remain to be discussed, and members should have a copy of our speaking note.

925. There are a number of remaining provisions. Irene will use the speaking note, which members have a copy of, to highlight those, and we have tried to include in that the issues that you raised at the previous meeting and that we said we would return to today. We have also given the Committee a table that includes some further provisions and gives a little summary of each. If members want to ask questions about those, we are more than happy to answer, but in view of the time constraint, we felt that that might be the most efficient way of giving you the information. If there are further questions, we will be happy to come back to answer those. We will do whatever suits the Committee.

926. I will ask Irene to go through the speaking note.

927. Ms Irene Kennedy (Department of the Environment): At our 13 January and 18 January presentations on the Planning Bill, we briefed the Committee on the new local development plan, development management, enforcement and community involvement provisions that are in the Bill. As Maggie outlined, today’s presentation considers additional departmental oversight, audit and intervention powers. It also highlights any remaining new or significant amendments that will be brought forward by the Bill. As Maggie indicated, a list of other minor amendments is attached in members’ papers. We propose to pick up on any other points that were raised at Tuesday’s briefing.

928. I will begin by outlining the Department’s new audit role, which is in Part 10 of the Bill at clauses 203 to 206.

929. Members appreciate that a key way to demonstrate the effectiveness and integrity of the planning system is through governance and performance management arrangements. The role of audit, inspection, performance management and monitoring will be critical in ensuring that planning functions are carried out, and are seen to be carried out, in a clear, fair and consistent manner and that best practice is applied across the new district councils. Those functions will also be important in providing a quality assurance service for the councils.

930. The Planning Service created its own audit team to examine the handling of planning applications, application of policy, development plan process and so on to identify areas where advice, guidance or clarification is needed to ensure best practice. As a unitary authority, the Planning Service did not need the audit or assessment functions to be legislatively based.

931. To enable audit and assessment work to continue in an effective and consistent way following the transfer of planning functions to councils, it is considered necessary to obtain the legislative cover through the Planning Bill. Those powers are planning specific and are in addition to other local government audit powers.

932. Part 10, therefore, will introduce new powers for the Department or other appointed persons to assess councils’ performance in carrying out some or all their planning functions and to assess their decision-making on planning applications. Recommendations for improvement will be published. If a council does not implement the recommendations, the Department may issue a direction requiring it to do so.

933. As part of the Department’s oversight role, it is proposed that a small number of functions transferring to councils will require confirmation by the Department before they take effect. That approach is in line with what happens in other jurisdictions.

934. A council may issue a completion notice under clause 63 requiring a development that has a time-bound permission and that has been commenced to be finished within a specified time. Such orders will require confirmation by the Department under clause 64. The Department will also be able to modify the notice if it thinks fit. In addition, the Department will retain the power at clause 65 to issue completion notices but only after consultation with the relevant council.

935. Council orders made under clause 67 revoking or modifying permissions require confirmation by the Department under clause 69 before they can take effect in cases where the proposed council order has been opposed. The Department will be able to modify the orders if required. The Department will also retain the power at clause 71 to revoke or modify planning permission but, again, only after consultation with the relevant council.

936. Likewise, discontinuance orders made by councils under clause 72 will have to be confirmed by the Department under powers made available by clause 73. Again, the Department will retain the power at clause 74 to issue discontinuance notices but only after consultation with the relevant council.

937. Safeguards have been built in to the provisions governing additional planning controls in Part 4 of the Bill. That Part provides the powers for specialist planning functions for buildings of special architectural or historic interest. Those are listed buildings, conservation areas, hazardous substances, tree preservation orders, review of old mineral permissions and control of advertisements.

938. The listing of buildings of special architectural or historic interest will remain a departmental function. However, the Department must consult with the appropriate council before compiling or amending any list. Councils will determine the vast majority of listed building consent applications and will be required to consult the Department and to notify it under clause 88, which deals with applications for listed building consent, thereby giving the Department the opportunity to call in, under clause 87, certain applications if it considers that appropriate. Furthermore, orders by councils to revoke or modify listed building consent under clause 97 will require confirmation by the Department under clause 98 before they can take effect.

939. Council orders to revoke or modify hazardous substances consent will also require departmental confirmation under clause 112. An additional requirement has been placed on councils to have regard to the advice of the Health and Safety Executive when determining applications for hazardous substances consent. It will be possible to require councils to delay granting hazardous substances consent in specified instances, such as cases where they are minded to grant consent against the advice of the Health and Safety Executive. That would give the Health and Safety Executive time to consider a request for a departmental call-in. The power to make the necessary regulations to enable that is in clause 108.

940. The Department will retain the power to discharge certain additional planning controls in the rare event that it should be required. Thus, the Department will still be able to modify or revoke listed building consent under clause 100, designate conservation areas under clause 103, apply tree preservation orders under clause 123 and create or revoke areas of special control for the display of advertisements under clause 129. There will, however, be a requirement for the Department to consult the relevant council before exercising those powers.

941. Finally, the Department will be able to call in certain applications from councils for its own determination if it considers that appropriate, although it is expected that such powers will be used sparingly. We discussed call-in powers for planning applications at the previous Committee meeting. Powers of call-in are also in the Bill at clause 87, which deals with listed building consent applications, clause 113, which deals with hazardous substances consent applications, and in paragraph 13 of schedule 2 and paragraph 10 of schedule 3, where reviews of old mineral permission are dealt with.

942. I will turn now to other provisions in the Bill that will add new powers or make significant amendments to existing powers. The powers relating to simplified planning zones, in clauses 33 to 38, will be largely unchanged. However, I shall take this opportunity to provide some details, because members have expressed interest in them. A simplified planning zone is a tool for stimulating and encouraging economic growth, investment and job creation. It achieves that by granting blanket planning permission for particular types of development, often industrial or commercial. Any conforming development proposed in the zone will not require a separate planning application, thereby ensuring speed and certainty for firms that wish to locate there. Clauses 33 to 38 will transfer the powers to make or alter a simplified planning zone to councils. Those powers can be modified when necessary to reflect the two-tiered planning system.

943. A statutory provision will be introduced at clause 66 to provide a simple and quick mechanism for allowing non-material amendments to be made to planning permission. Recent case law has been interpreted by many as restricting the potential for developers and planning authorities to agree even the most minor changes to a planning permission. The proposed change will ensure that there is a legal basis for doing so. The Department will be required to prescribe the form and manner of applications, as well as the notification and representation arrangements.

944. Councils will have to make planning applications in the same way as other applicants for planning permission. Clause 78 will enable councils to grant planning permission for their own development, for a development carried out jointly with another person and for a development that is to be carried out on council-owned land. Similar provisions will apply to listed buildings and hazardous substances consent applications, and that is dealt with at clauses 106 and 119.

945. If we move on to conservation areas, members may wish to note that clause 103 specifies that special attention be paid to the desirability of enhancing the character or appearance of a conservation area where there is an opportunity to do so. There may be instances where a development by a Crown body is of such public importance and urgency that the planning application needs to be determined more quickly than permitted by councils’ processing procedures. Clause 209 will provide for the direct submission of such applications to the Department. Clause 210 will cover a similar procedure for urgent works to a listed building on Crown land.

946. On financial provisions, clause 219 will provide the Department with the powers that it needs to make regulations to allow fees and charges to be set for the various planning functions. The principal amendment here will be to extend fees and charges to take account of councils’ actions. Clause 219(8)(b) will allow the Department to make the necessary regulations to give councils the ability to set their own fees. That said, the Minister’s current intention is that DOE should set fees centrally for the first three years and then review the situation. New financial powers will be taken under clauses 222 and 223 to provide a measure of additional financial support to councils. Clause 222 will provide discretionary power to allow a statutory undertaker or another council to contribute to a council’s costs in certain circumstances. Finally, clause 223 will allow Departments to contribute to a council’s compensation costs in cases where the liability arises from planning decisions made on behalf of a particular Department.

947. A number of amendments are made to the legislation dealing with public inquiries and related clauses. Those amendments will be made under clauses 227 to 230. The amendments relating to existing provisions of articles 123A and 123B of the Planning (Northern Ireland) Order 1991 result mainly from the recent devolution of policing and justice powers to the Department of Justice. Clause 227 will continue the general rule that any inquiry or independent examination required to be held under the Bill must be held in public and that documentary evidence relating to it must be open to public inspection. However, it will provide an exception to that general rule in instances where certain categories of sensitive information are involved. In such cases, it will enable the Secretary of State or the Department of Justice to direct that access to that information be restricted. Clause 230 contains procedures for the certification by the Secretary of State or, in certain cases, the Department of Justice, of applications for planning permission or other consents or approvals, under what will be the Planning Act, where first, consideration may raise issues of national security or matters relating to the security of Crown or other properties and, where secondly, the public disclosure of that information would be contrary to the national or public interest.

948. Various other provisions of the Bill ensure that a public local inquiry will be held in circumstances where an application has been certified under that clause. Holding such an inquiry will enable a direction to be made under clause 227 restricting access to certain information at that inquiry and could lead to the appointment of someone to represent the interests of any person who, as a result of the direction, is prevented from inspecting or hearing evidence to which the direction relates.

949. That completes the Department’s briefing on the remaining new provisions in the Bill. We welcome any questions that members may have.

950. The Chairperson: Are you positive about that, Irene? Has the Minister agreed those minor amendments?

951. Ms I Kennedy: Yes, they are in the Bill as it stands. We thought that we would focus on the more significant elements.

952. The Chairperson: As I said at the outset, responses are now coming in and we are looking at them. We said that the consultation was on the principle. However, we are now down to the detail, and the key elements will be the subordinate legislation, the guidelines, the recommendations that will come from the Committee and any amendments. I want to touch on a few points about this morning’s briefing. You have the paper from Queen’s University and the Research and Library Services team and will be responding in writing to the questions. Obviously, we will have more questions.

953. We heard this morning about the power of well-being, which I know is also a governance issue. Could something about that be put into the Bill or into subordinate legislation, or, indeed, into policy or guidelines? We want to touch on the quality of the built environment. That subject keeps raising its head, especially where capacity building and placing resources are concerned.

954. Preparing the stakeholders is the other issue to consider. It is all about a change of mindset for everybody and about everybody being inclusive. We spoke at the previous meeting about active engagement, and that subject raised its head again today. I have to go in a couple of minutes, so Mr McGlone will take over. However, perhaps you could touch on those issues. Where would you like to start?

955. Ms Smith: We will start with the quality of the built environment. The researcher is correct in saying that the quality of the built environment is not mentioned in the Bill.

956. I go back to Mr Weir’s point that not everything is necessarily a matter for the Bill; indeed, Mr McGlone mentioned the design guide. When talking about influencing the quality of the built environment, I should say that it is important to bear in mind that different people and councils will have different views about how they want the quality of their built environment to be. That is the sort of thing that councils would probably want to bring out through policy. They would also have the option of writing their own design guides if they wanted.

957. Departmental policies already relate to the quality of the built environment. I am thinking about general issues that we included in the planning policy statements (PPS) that refer to the building itself and how it sits in its context. Therefore, that policy framework is in place, and councils themselves would have the option to develop their ideas within that general policy framework.

958. The Chairperson: What about the other matters that I raised?

(The Deputy Chairperson [Mr McGlone] in the Chair)

959. Ms Smith: We talked at the previous meeting about the capacity building pilot studies that are being undertaken. We see those as being absolutely central to the building of capacity. The pilot studies will allow councillors, council employees, the Planning Service, staff and others who will be involved in the new system to work together to test out the arrangements. The studies will also allow those people to think about how they will work together and how the new powers will impact on the way that they operate in their daily lives. The studies will also allow them to develop an understanding of their new responsibilities and to practise the outworkings of those new responsibilities without having the powers devolved but to the extent that, by the time that the powers are transferred to councils, everyone who is involved will understand what they mean and how they will work together to implement them.

960. The plan is to start the first pilot studies very early in the new financial year, and by April 2012, there should be a pilot study at some stage of progress in every council area. Clearly, each of the new council structures will have its own culture and character. Therefore, there will be differences, and that will help one council to learn from another.

961. Those pilot studies are crucial. Alongside those studies, it is important that individual councillors and employees have opportunities for training and capacity building. The Department is in conversation with the Royal Institution of Chartered Surveyors (RICS), the Royal Town Planning Institute (RTPI) and the Northern Ireland Local Government Association (NILGA) about capacity building.

962. The Deputy Chairperson: Thank you, Maggie. Sustainability is a pretty big issue. I do not think that any Department can afford to ignore it or even to delegate it sideways.

963. Ms Smith: No.

964. The Deputy Chairperson: Could you put a bit more meat on the bones of that and how it relates to the Bill?

965. Ms Smith: Would you like us to talk about sustainability now or to finish answering the Chairperson’s questions?

966. The Deputy Chairperson: I am sorry; I did not realise that you had a few more questions to answer.

967. Ms Smith: Would you like me to answer the Chairperson’s questions first?

968. The Deputy Chairperson: Yes. Perhaps we had better park that matter until he comes back.

969. Ms Smith: Would you like us to talk about sustainability now?

970. The Deputy Chairperson: Yes, please.

971. Mr Angus Kerr (Department of the Environment): We have been asked to look at sustainability and to prepare comments on the requirements in the Bill for sustainable development. I will start with the context for the sustainable development duty. There is a general duty on all Northern Ireland Departments to contribute to the achievement of sustainable development. That was brought in by a piece of legislation from the Office of the First Minister and deputy First Minister (OFMDFM), namely, section 25 of the Northern Ireland (Miscellaneous Provisions) Act 2006.

972. In addition, Northern Ireland has relatively recently published a sustainable development strategy entitled ‘Everyone’s Involved: Sustainable Development Strategy’. Along with the general duty on Departments, that was developed as a high-level enabling document designed to provide a framework that can support and inform decisions and actions taken by individuals, groups and organisations in progressing the sustainability agenda in Northern Ireland. That will apply, notwithstanding what is in the Bill.

973. The Deputy Chairperson: Therefore, are you reliant entirely on another Department to inform the Bill?

974. Mr Kerr: No. We are just saying that that is the context and that that strategy is there, so that duty exists. In the Bill, however, we are directly addressing that duty for planning. Therefore, it is like copper-fastening the duty that exists already in that other legislation.

975. Clause 1(2)(b) should ensure that the Department fulfils its role in exercising its function under planning:

“with the objective of contributing to the achievement of sustainable development."

976. Therefore, there is a duty in the Bill that will be on the Department after the transfer of functions. That means that all the planning functions that remain with the Department are, in a sense, caught by that clause. In carrying out that duty, the Department must also have regard to policies and guidance issued by the Office of the First Minister and deputy First Minister and the Department for Regional Development (DRD).

977. Similarly for councils, clause 5(1) requires any person who exercises any function with local development plans to do so:

“with the objective of contributing to the achievement of sustainable development".

978. That person must have regard to the policies and guidance when preparing their local development plan. That also applies to any independent examiner during the independent examination process. We believe that those requirements will ensure that all relevant authorities take sustainable development properly into account in the decision-making process and in the exercising of their planning functions.

979. Clauses 8 and 9 require councils to prepare to a sustainability appraisal to assess the environmental, social and economic effects of their local development plan. That appraisal should run throughout the development plan process and should assess the policies, provisions and proposals of the plan, as well as the extent to which they meet sustainable development objectives. Detailed guidance will be prepared for councils about what the form and content of sustainability appraisals should be.

980. The Deputy Chairperson: When is that detailed guidance likely to be issued? Is there a time frame for that?

981. Mr Kerr: It should be in place before councils take on that responsibility.

982. The Deputy Chairperson: I would hope so.

983. Mr Kerr: Work is ongoing in parallel with what we are doing on the Bill.

984. The Deputy Chairperson: Is sustainable development guidance, or whatever you call it, being prepared at the moment?

985. Mr Kerr: Yes, work on it is ongoing, but it is in its early stages.

986. The Deputy Chairperson: Does that mean that it is still in its infancy?

987. Mr Kerr: Yes. It is building on guidance that is in the other jurisdictions.

988. The Deputy Chairperson: Maggie, if I picked up your point correctly, you touched on design guides and the option of councils developing their own design guides. To my mind, that would create utter chaos, because people in one district council area would look down the road and ask why some people in another council area can get bay windows, hip roofs or whatever, yet, a couple of miles up the road, they cannot get them. Will you expand on that thematic aspect of design guides? What aspects of design guides is the Department thinking of individual councils having, and what leeway would they have to develop their own?

989. Ms Smith: The point that I was making, and perhaps I did not make it clearly enough, was that the detail of the quality of the built environment will come forward in policy. As you know, policies in the PPSs, for example, refer to the quality of a building in its setting and how it fits in with that. That policy framework would be there on a regional basis, that is, on a Northern Ireland-wide basis. Councils would then reflect that framework as policies in their development plans. If they wished, they would also have the option of producing design guides.

990. The Deputy Chairperson: Where does consistency, that old chestnut that pops up time and again, fit in?

991. Ms Smith: When the powers are transferred, councils will have the latitude in their development plans to expand or to put their own flavour on the policies that operate in their areas as they would wish to so that they can implement their plans. There will be differences between councils, because they will interpret things in different ways. They will have different priorities, and the communities in their respective districts will want different things reflected in the plan. Therefore, there will be some distinctiveness between the different plans.

992. Mr Kinahan: I am afraid that I have quite a few little questions arising from what you said. You said that the Department will have an oversight role. My concern is about speed. We do not want arguments between councils and the Department sitting for a long time. There needs to be something to make sure that decisions are taken and there is action. Will a mechanism with a time frame be put in place? I can see things sitting for ages if they do not agree.

993. My second question is about the power to revoke. If the Department holds the power to revoke, yet we are talking about the community having a say, has the council then got a chance to go back and talk to the community? It would seem strange that we listen to the community, develop a plan, come up with an idea, and the Department says “No, that does not fit in with our overall planning". There needs to be a way to go back to the community when there are no third party appeals. Will a mechanism be put in place for that?

994. My next question is about the Department/council relationship with regard to compensation. Again, I can see that getting bogged down, with a council saying that it is the Department’s fault and the Department saying that is a council’s fault. Again, that needs a time frame, or will an arbitration system be put in place?

995. Lastly, we have heard endless talk about legislation, guidance or policy. Can the Committee have a list of all the different things that we need to be sure of what is coming up behind or with the Bill, whether legislation, guidance or policy?

996. Ms Smith: I will answer the last point first. We sent to the Committee a long memorandum that sets out all the subordinate legislation that will be coming forward. It explains what a particular part of the primary legislation does, and then identifies what the subordinate legislation will be. We also gave the Committee a timetable that shows the rate at which we will be progressing the secondary legislation, and when we will be consulting on it.

997. Mr Kinahan: Have I just missed that or has it not got to us yet?

998. The Committee Clerk: It is in the master file.

999. Mr Kinahan: OK, thank you.

1000. Ms Smith: If you need more details we will be more than happy to provide those.

1001. The Deputy Chairperson: OK. Are there further issues with regard to those questions?

1002. Ms I Kennedy: Yes. The oversight powers will be used very sparingly and very rarely, looking at the experience of other jurisdictions, if we can find such experiences. The Department will intervene in only a handful of the types of cases that you mentioned. So, nothing in the Bill refers to time frames. However, these cases are so rare that you would not necessarily expect to see that. It is not a regular occurrence or process, so there is no need to put in those checks and balances. Such cases will be very rare and individual, and there will be discussion between the Department and a council about how best to take them forward.

1003. Mr Kinahan: So, you do not see an arbitration scheme as necessary.

1004. Ms I Kennedy: No, not at this point. These will be such rare and exceptional cases that it will not be necessary.

1005. Mr Kinahan: I hope that you are right.

1006. Ms Smith: In the way that the legislation is drafted, you can see how the Department can intervene. We refer to “directions". The councils will be carrying out their responsibilities under the Act once they have the powers. However, the safety net has to be there. We all need to recognise the possibility of such cases occurring. That is why the legislation refers to “directions" because if such issues arise the response will be to that particular case.

1007. The Deputy Chairperson: I was reading through some stuff from the Planning Appeals Commission. I am trying to get my head around where that might be the case. Say, for example, that the Department calls in an individual — a person, the agreed person or whatever they call it — to look at the call-in power. If there is any potential conflict with the Department doing that in circumstances where it could be — say, for example, that a person raised an issue and it was referred back for call-in powers, and the council may not have interpreted departmental policy correctly. Does the Department’s appointing the person who will be looking into what is its own policy lead to a conflict of interest? I picked up on something in papers from the PAC last night that referred to that. I think that it was making a case for its absolute independence in such cases and in what circumstances there would be a need for the Department to appoint a body other than the PAC to look at such issues.

1008. Ms Smith: The Bill provides for the Department to appoint an independent person to carry out an independent inquiry. The purpose of that is to assist in situations in which a large volume of work needs to be done and the PAC does not have the resources to cope with it.

1009. The situation that I always think of is when the development plans start to come through. We will have 11 councils producing 11 development plans, albeit according to their own timetables. However, we expect those timetables to be roughly similar. It would be a terrible shame if we got to the stage when those plans were coming through for inquiry and we did not have the capacity to take them through that process. You would have to have a queuing system. This provision allows the possibility of appointing a properly qualified independent person to carry out that inquiry. That is not replacing the PAC. The PAC is there and it is clear in the Bill that its functions continue. It is a backup for the PAC.

1010. The Deputy Chairperson: The PAC’s advice seems to be that the independent examiner may not be binding on the Minister.

1011. Ms Smith: That is correct.

1012. The Deputy Chairperson: Where does that leave us?

1013. Ms Smith: The PAC makes recommendations to the Minister.

1014. The Deputy Chairperson: So there is no change from the existing situation.

1015. Ms Smith: There is no change.

1016. Mr W Clarke: I want to touch on the pilot schemes and building capacity. What criteria will be used to decide what areas will have pilot schemes? I can clearly see that the areas that begin their pilot schemes later will be at a disadvantage. Why is the rationale not to set them up everywhere, why are you going for maybe one or two areas, and how will you decide on those areas?

1017. Ms Smith: The pilot projects are really for the benefit of the councils. There is an open invitation to councils to become involved. Preliminary conversations are going on with councils, but it is not our intention to hold back the development of pilot projects. We are willing to work with councils as they are ready to engage in pilot schemes.

1018. Mr W Clarke: So there is nothing holding councils back.

1019. Ms Smith: No.

1020. Mr W Clarke: Should there not be a directive from the Department to councils saying: “Set up your pilot schemes under the transitional committees, and start that work now", rather than waiting for people to come to the table?

1021. Ms Smith: We are talking to various councils that are interested in becoming involved in the pilot schemes at different stages during the year. It is a partnership.

1022. Mr W Clarke: But you know where I am coming from, Maggie. The Department should be telling councils quite clearly that they need to be setting up pilot schemes in their areas and be involved in them, rather than telling councils to come to the table when they are ready.

1023. Ms Smith: We are certainly encouraging councils to come forward.

1024. Mr W Clarke: Different councils and councillors have different views on planning. Planning for some councils means infrastructure, and for some councillors it is a couple of replacement dwellings in their townland. You need to bring those people to the table now. You cannot sit back. There will be a culture shock on councils. I declare an interest as a councillor. There will be a major shock to the system, and the sooner that that work is started the better.

1025. Bringing the community on board probably fits neatly into that. What measures and resources will be put in place for people from deprived backgrounds? Will that tie in, for example, with neighbourhood renewal? How will the Department ensure that those people have a voice? In my experience of the planning process, the articulate, the middle classes and the retired middle classes are competent with regard to planning and can make their voices heard. People from deprived backgrounds are reluctant or maybe have more pressing issues. What will the Department put in place for them?

1026. Mr Kerr: The statement of community involvement is maybe the key to that. That is a new provision that enables councils to address the issues of hard-to-reach groups. It will also contain the information that councils need about how to reach section 75 groups under their equality obligations. That is an opportunity that is not there at the moment for councils to say up front who it is appropriate to involve and how some of those groups are reached, and then to put down for everyone to see how they are inclusive and include the widest community possible so that those issues do not arise. It tends to be the same well-resourced people coming forward on lots of planning issues. Hopefully, when the local development plan comes forward it will have the widest possible consensus from all those groups.

1027. Mr W Clarke: I appreciate that. What I am getting at is whether resources will be provided to an organisation to take those views forward — the likes of Planning Aid? Will those resources be made available to those groups?

1028. Ms Smith: The statement of community involvement will be the statement of the individual council, and that council will set out in that statement how it will do its consultation. As part of that, the expectation will be that the council will detail how it will get to different sections of the community. It is the councils’ responsibility to —

1029. Mr W Clarke: So the councils will have to get the resources.

1030. Ms Smith: Yes. It is councils’ responsibility to engage with their own communities, and “community" is described in a very wide way. Certainly, section 75 underpins that whole process.

1031. Mr W Clarke: That has more implications for councils. We will raise that with NILGA and hear its response. Again, councils will require more financial resources to deliver that, but we will come back to that.

1032. Danny touched on the stuff about the Department intervening in tree preservation orders and suchlike. When or why will that happen? Is it because certain councils may not designate conservation areas, townscape character or tree preservation orders?

1033. Ms I Kennedy: Very rarely is a case made to the Department when a tree preservation order is needed in a particular area. Those powers provide for consultation with councils, so the Department will consult with a council in the first instance, and the council itself may well decide to place a tree preservation order on an area. This is just a failsafe — an additional reserved power, in line with other jurisdictions, for exceptional cases. We do not envisage those cases happening very often.

1034. Mr W Clarke: A point was made about examples of good practice elsewhere. The research people said there was major flaws in planning reform in England and Wales. Did the Department take that on board and looked at best practice there and in Europe? I think that the Chairperson spoke about that as well.

1035. Ms I Kennedy: Yes, we looked at how planning operates elsewhere. Planning has been evolving over many years and is one of those areas of policy that constantly changes, reflects and moves on. The Bill will set the framework now, but it will obviously be reviewed for many years to come.

1036. Mr W Clarke: I am not saying that England and Wales are the benchmark. There are good practice models throughout Europe, especially with regard to sustainable development and good planning, particularly in Austria and Germany.

1037. The Deputy Chairperson: There is one interesting aspect of the Bill, and maybe you can explain it to me. Clause 1(3) states that: “the Department must have regard to … policies and guidance issued by … the Department for Regional Development".

1038. The regional development strategy automatically springs to mind. However, clause 8(5) states that:

“In preparing a plan strategy, the council must take account of … the regional development strategy".

1039. Will you explain the difference in the emphasis of the wording in that the Department “must have regard to, whereas a council “must take account of"? There has to be some reason for that nuance. When these things wind up judicially reviewed, those nuances can mean an awful lot.

1040. Mr Kerr: Absolutely. The reference in clause 1(3) is a duty in relation to the Department for the functions that the Department retains. The other is a duty on a council for what it needs to take into account when preparing its plan. They are slightly different because one is in relation to what the Department has to take account of when preparing PPSs or other policy and guidance, and the other is what councils take into account when preparing a local development plan.

1041. The Deputy Chairperson: The problem, Angus, is that the Bill does not say, as you just said, that the Department “takes it into account". It says “must have regard to", whereas it states that councils “must take account of". Those sorts of things can be challenged. Why are there two forms of wording rather than consistency of vocabulary, and what is the subsequent interpretation of that likely to lead to?

1042. Mr Kerr: The legal view is not definitive in these areas. We took legal advice on the differences between the general conformity of “have regard to" and “take account of". All the jurisdictions in these islands have slightly different approaches to that.

1043. The advice we were given was that “have regard to" and “take account of" are broadly similar. In our negotiations with the Department for Regional Development we discussed how the regional development strategy in particular should be taken into account by councils. The preference was that “must take account of" was slightly clearer about what was required with the regional development strategy. In other words, it put the onus on councils to demonstrate evidentially how they actively took the regional development strategy and other policy and guidance into account. The “have regard to" requirement does not convey that as clearly, although they are similar legally in terms of the requirement.

1044. The Deputy Chairperson: I am just puzzled as to why they are not similar wording.

1045. Mr Weir: I can understand, legally and logically, that “have regard to" and “take account of" are more or less the same thing. In light of what the Deputy Chairperson said, would it not make sense to use one or the other consistently? I understand that if you wanted to convey a slightly different meaning elsewhere, you might want to use a completely different phrase. However, you should simply use one of those phrases consistently. That seems to be a drafting issue.

1046. Ms Smith: We will be happy to suggest that to the Minister if you want that drafting changed.

(The Chairperson [Mr Boylan] in the Chair)

1047. Mr Weir: In your absence, a couple of points that you raised were not answered because you were out of the room.

1048. The Chairperson: Do you want to pick up on those, or do I need to repeat them?

1049. Ms Smith: We talked about the quality of building, capacity building, pilot schemes and the involvement of the RICS and RTPI. You also asked about stakeholders, and we touched on that a little. The statement of community involvement makes it very clear that the people who councils have to engage with are the people in the community. That is the broadly defined community that we talked about last time, not just the people who live in the area but the people who work and invest there. They all have an interest.

1050. This is not about a council communicating with only community groups or organisations. It is about a council communicating with its public. That is an important point. It is also worth saying, expanding that point slightly, that the vision that a council is engaging on with the public will, of course, be set out in the first plan document, which is the plan strategy.

1051. The Chairperson: What about that minor matter of resources?

1052. Ms Smith: Resources in terms of stakeholders?

1053. The Chairperson: No, resources in terms of capacity building and the whole lot. Obviously, that issue is raising its head. The likes of NILGA are responding today or tomorrow. We have given respondents until tomorrow to respond. We are going through this process but also trying to go through the responses. The issue of resources keeps raising its head, and we certainly need to look at that. Is there, as I mentioned earlier, an opportunity to review the whole process to see how it goes through the transitional period and rolls out? Will there be a mechanism checking to see how it is all going? Will that be built in?

1054. Ms Smith: The pilot projects were introduced to make the transfer and the transition as smooth as possible. We can work out before any powers transfer to the councils exactly how the arrangement will work for each council. It is about councillors, council employees, the people in the Department who will transfer to the councils, and everybody else who is involved working together to test the arrangements, come to a greater understanding of the arrangements and figure out how they will work together in a particular council area, so that when we come to the day when the powers transfer everybody will know and understand their roles.

1055. The Chairperson: So there will be a review.

1056. Ms Smith: No, I am talking about —

1057. The Chairperson: No, that is OK.

1058. Ms Smith: You asked about transition.

1059. The Chairperson: We will put in a recommendation.

1060. Mr Kinahan: Will there be guidance for councils on how to consult the public? As I said in the Chamber the other day, through master plans and everything else councils seem to have a set way of doing things. If that fails, they do not review it. I am concerned that we are not good at consulting people. We have to keep looking at new ways and new ideas.

1061. Mr Kerr: That is absolutely right. There will be guidance, and it should focus on best practice. To some extent, it is not necessarily the case that the Department has all the best practice. A lot of work that already goes on at council level is often put up to us as the proper way to consult.

1062. Mr Kinahan: You will keep reviewing that.

1063. Mr Kerr: Yes.

1064. Mr Weir: Presumably, if you are setting out guidance, in one phrase it should be guidance on consultation that makes a floor rather than a ceiling.

1065. Mr Kerr: Exactly.

1066. Ms Smith: Yes.

1067. Mr Kerr: There should be flexibility for local councils to consult in the way that they see as appropriate, rather than a one-size-fits-all for every council.

1068. The Chairperson: We are out of quorum again.

1069. Mr Weir: I think that Alastair will be back shortly.

1070. The Chairperson: I will have to put it to members when they come back in, but we have discussed the research paper and the questions that it raised. We will also have certain questions by the time we are finished with all the responses, and we will send those to the Department. We thank you for going through this part of the Bill. I think that Committee members are getting a better understanding of the legislation. Most of what we discussed over the four days has been the new elements of the Bill, and we need to discuss the existing elements.

1071. Thank you very much, and no doubt we will be calling you again.

1072. Ms Smith: Thank you, Chairperson, and the Committee members for the time that you have given to us. We will send you Angus’s notes on sustainable development, because they were not in the pack that we sent last night. We will get back to you very quickly on the responses to the research questions. If there is anything else that we can do, we will be more than happy.

1073. The Chairperson: OK. Thank you very much.

26 January 2011

Members present for all or part of the proceedings:

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

Witnesses:

Councillor Jack Beattie
Councillor Arnold Hatch
Mr David McCammick
Councillor John O’Kane

 

Northern Ireland Local Government Association

Ms Catherine Blease
Ms Esther Christie

 

Northern Ireland Housing Executive

Mrs Maire Campbell
Mr Trevor Rue

 

Planning Appeals Commission

Ms Laverne Bell

 

Quarry Products Association (Northern Ireland) Limited

Ms Diana Thompson
Mr David Worthington
Mr Ben Collins

 

Royal Town Planning Institute

Liam Dornan
Ms Diana Fitzsimmons
Mr Bill Morrison

 

Royal Institution of Chartered Surveyors

1074. The Chairperson: (Mr Boylan): Our first presentation is from the Local Government Association. I welcome David McCammick, chief executive of Antrim Borough Council; Councillor Jack Beattie; Councillor John O’Kane and Councillor Arnold Hatch. I have met you all before. I apologise for the fact that we are running late, what with the traffic and everything else. I will open it up to you, and then I will open it up to members for questions. Perhaps you can highlight the key points in your paper; that will leave more time for members to ask questions.

1075. Councillor Jack Beattie (Northern Ireland Local Government Association): We have it written down in some sort of order.

1076. Thank you for seeing us again. Each of us will present one or two key issues that we want to highlight from our written evidence. The comments on specific clauses are in our written response. We are happy to answer queries on those comments, but we have decided to present our strategic concerns.

1077. My first concern is timing. The Planning Bill is vital to local government and is another stage of a long policy development process. The Northern Ireland Local Government Association (NILGA) has facilitated local government to develop policy positions and responses since the beginning of the reform process and is keen that that process comes to satisfactory fruition. However, local government is deeply concerned by the time frame in which the Bill is expected to pass through the Assembly, and we need time to undertake a comprehensive and detailed study of the Bill.

1078. Many of the reforms that are proposed in the Bill may be good reforms, but the extreme time pressure is hampering our ability to properly scrutinise and examine the implications of the legislation. That increases the risk that large parts of the legislation will need to be amended in the early stages of the next Assembly. Local government would value the opportunity to go through the Bill in greater detail, but time has not permitted us to do that.

1079. We are consulting with the sector on how it wants to proceed, as the view has been expressed by many of our members and officers that the process of the Bill should be suspended until local government reform legislation can be introduced. Although it would be preferable to have a wider context in which to progress the Planning Bill, we realise that that may not be possible and that there is a very tight timescale. Local government does not believe that the legislation should be rushed and, if the Environment Committee shares that concern, proposes that, at the very least, a review mechanism should be built into the Bill as a safeguard.

1080. NILGA is meeting on Friday to assess the strength of feeling on a potential suspension of the legislative process until the local government reform legislation is introduced. Of course, we realise that such a delay could cause consistency issues between this Assembly and the next Assembly and would impact on the reform programme for both planning and local government. However, a wider discussion within the sector is needed before we can give you a definite view on the proposed approach.

1081. Councillor Arnold Hatch (Northern Ireland Local Government Association): Thank you for the opportunity to present this evidence today. I will concentrate on resources and capacity, because there is a big concern about how much this is going to cost.

1082. I want to highlight the principle of cost neutrality. In other words, the reforms should not cost the ratepayer any more money. The cost may be adjusted in terms of the regional rate and the district rate, but whatever that cost is, it will be coming off the regional rate and going on to the district rate so that, in total, it makes no difference to the ratepayer. That is the principle under which we have always operated: cost neutrality. We also need to build up the capacity of our members.

1083. One of the main concerns about the whole programme of local government planning reform is about ensuring that the cost is neutral to the ratepayer. We are not satisfied that sufficient funding will be provided or that the new fees system will be appropriate or adequate to cover the cost of the service, once transferred. The service will not be self-supporting through fees, because that would make fees far too high for people to operate.

1084. We are not sure that satisfactory work has taken place to estimate costs or to develop a business case. Fees, even if increased, will be insufficient to cover costs. We note that enforcement and local government planning will not be covered by fees and are left to wonder how those services will be paid for.

1085. Of additional concern are the proposals for compensation arrangements. Local government totally rejects clause 184(7), which leaves councils liable for bad decisions by the Department. That is reminiscent of the Northern Ireland Water situation and the gritting of footpaths; an attempt was made to put liability on councils. We reject that entirely. We feel that, if we do the job sufficiently well and within the rules and parameters, we should not be liable for bad decisions that may result from policies set by the Assembly.

1086. NILGA argues strongly that the transfer of this service should be cost neutral to the citizen. Although we would value discussions with the Department and the Committee as to how cost neutrality will be assessed, we are not sure that there will be an independent assessment of those costs. That is because we have been trying since March 2009 to elicit good, reliable figures for costings from the Department and the Planning Service.

1087. We are also concerned about the potential implications of the Department of the Environment’s (DOE) budget plans, given that £4·9 million of savings have been identified as coming from planning, in addition to the severe reduction in staffing that the Planning Service experienced this year. Local government would value an early conversation with senior departmental officials on the funding of planning. Much greater transparency is needed on the finances of the planning system. We need an evidence base as a matter of priority to ensure that we build a sustainable system.

1088. Preparation for the transfer of planning to councils needs to take place. As part of that, a huge capacity-building exercise is needed for elected members, officers who will transfer and existing local government officers to develop understanding and expertise in running the new system. At the very least, a training programme and scenario role-playing events are needed, and it is not known where funding will come from to facilitate that necessary aspect of transfer. We are aware that the Minister has suggested pilot programmes to start in April, but there is no detail on those as yet and there is substantial concern about the governance of such pilots.

1089. Councillor John O’Kane (Northern Ireland Local Government Association): Local government considers governance to be a key issue in ensuring confidence in the post-transfer planning system. There are two aspects to our concerns. First, there is the structural governance that will cover decision-making responsibilities, structures and accountability of officers and members, which involves things like the change from six district offices to five area offices, etc. The second aspect of concern is the behavioural governance, to cover a mandatory code of conduct, ethical standards and other safeguards. Incidentally, a mandatory code of conduct was to have been introduced by 2011. That, of course, did not happen, although some good work by engaging with policy development panel (PDP) A. An interesting part of that was that there was a section in it that was to deal with planning. That section is blank — it never happened. I can let members see that if they wish.

1090. NILGA cannot overemphasise the importance of the new governance policy to local government. As I said, the document on local government reform policy proposals is out for consultation at the moment. That deals with all the governance issues of the new councils. If and when they come into being, there will be a section specifically on planning. Therefore, we cannot overemphasise the importance of the new governance policy, and we are deeply concerned about how the proposed pilots will operate from March or April this year, in the absence of appropriate governance codes and legal protections.

1091. We are also concerned about the lack of clarity on the demarcation between the Department and the councils’ responsibilities, and how issues such as the development planning system and staffing responsibilities will operate should councils agree to work in clusters. There has not been enough engagement on those issues between local government and the Department. NILGA would value engaging with the Department to develop regulations, guidance and protocols to ensure that consistency in approach across local government is achievable and operational from the date of transfer.

1092. We are unable to assume that such engagement will automatically take place, because all engagement with local government ceased when the strategic leadership board (SLB) ceased to meet in April 2010. The PDPs also ceased to operate from that date. We appreciate that there was meaningful engagement beforehand with departmental officials, but all of that has ceased.

1093. More clarity is needed on the Department’s role post-transfer. It is very clear from this Bill that the Department will hold a great deal of power over councils and an ability to intervene in some areas of work, even though councils will be financially responsible for the service. Again, engagement with the sector is necessary to obtain clarification on these issues of concern.

1094. We must ensure that the legislation strengthens democratic accountability and that councils are the driver within the new system. Some kind of check on departmental powers is required, particularly given the financial implications for councils. We ask the Committee to ensure that Planning Service determinations, rulings and their outcomes, and any associated liabilities, will be retained as the sole responsibility and liability of the Planning Service as a government department. We believe that that can be enshrined in legislation. It is worth noting that, in the handover from councils to the Planning Service in 1972-73, liability for incomplete planning determinations was passed on to the service.

1095. In conclusion, we welcome and look forward to the opportunities for place-shaping, etc that the return of planning powers to councils will give us, but we have a lot of concerns, particularly about the lack of meaningful engagement over the past year or so in the run-up to this. We think that the local government reorganisation Bill should have come before this Bill. That would include all the governance issues that I have raised.

1096. Mr David McCammick (Northern Ireland Local Government Association): I have been asked to speak on some of the implementation issues, and I will pull together some of the things that have been said.

1097. Local government is pragmatic and capable of implementation when provided with the relevant information and resources. That does not appear to be readily available for the Planning Service at the moment. We are responding in a partial vacuum, and, as a result, we may have more questions about planning than answers. We believe that development planning should be integrated with the local government reform, particularly the community planning provisions, but they will be provided for through separate proposed legislation — the reorganisation Bill, which is currently out for policy consultation.

1098. How do we deal with the queries about the integration and implications between the Bills, when the two key pieces have not been launched together? That is particularly important in respect of the governance issues, their arrangements and structures that Councillor O’Kane has just spoken about. Local government may have its own view on some structures, particularly delivery structures.

1099. I will talk a wee bit about communication on the development of this between the parties, and by parties I mean the sector and the Department. During communications about plans, facts and figures and so on, it helps to develop an understanding and confidence about what is planned. It is difficult to sustain confidence in the absence of that. For local government to confidently consider the implementation of a new planning regime, a number of things need to be dealt with initially, such as information about the old and new finance and funding models for the Planning Service. We are looking at that from a point of view of risk to the council.

1100. There are questions about human resources (HR). What is the staffing complement, the structures, skills, expertise, location, contractual entitlements and industrial relations issues? I could go on; HR is very complicated. What about IT hardware and software? What are the specifications and performance requirements, and what are the contractual considerations there? Clarity is required on those issues and others, including assets, office accommodation, contractual issues around which we have no information on, and generally speaking, liabilities.

1101. What are the transitional arrangements to move to this new regime? What is the time frame, and is there a transfer plan or a project plan for the new way of development? That is important when you remember that we are concerned about the current status of area planning systems. Plans in council areas are at different stages; mine is in critical need of a plan, as it is way out of date. There needs to be some clarity about how existing plans will merge into the new planning regime, and how local policies are going to integrate into regional policy. The regional development strategy (RDS) has just been released for its 10-year review consultation, which is a material consideration.

1102. We are worried about the practicalities of introducing a stringent new regime into a system that is in serious arrears. We suggest that additional resources are put by the Department into the area planning team in the run-up to transfer to ensure that plans are moved on a bit, but we acknowledge the economic conditions that we are operating in.

1103. There are other issues, including developing the understanding and demarcation between the roles and responsibilities of councils and Departments, especially around the powers of intervention and scrutiny. There are other implications that have been mentioned in respect of the Planning Bill and the compensation requirements, and clarification on what that might mean for local government.

1104. As a council chief executive, I am required to produce an annual governance statement, supported by various papers and business plans, covering the affairs of the organisation at the time, including risks. I am unable to make an informed judgement about the implications of the transfer of planning to councils, due to the inadequacy of the relevant business information. A due diligence exercise is required, and for that I need information.

1105. In respect of capacity building, we do not have the skills and understanding required to deliver the service at the moment, which makes it difficult to design delivery arrangements suitable for councils. Therefore, regard must also be given to a new role for local government and council officers and the cultural implications of that.

1106. In conclusion, we welcome the proposals, but we need more time to get the sector to a position where there is sufficient confidence to take on and deliver an acceptable standard of service based on the new regime. With the right resources and arrangements designed in partnership between the sector and the Department, I am confident that local government can deliver a new, improved planning service. We are not familiar with the legislative process and how to set back the Bill, or whatever the proper term is, and we are not rejecting it. We simply want more time, and we want to consider it in the context of the reorganisation Bill.

1107. The Chairperson: OK. Thank you very much. On the Floor of the House, all parties agreed to take the Bill on board, and it has now come to the Committee. We have a process to go through, and we will report on it. Then the Bill will go to the Floor of the House, and it will be down to the parties what decisions can and will be made. Therefore, the Committee needs to take on as much information as possible to try to influence the outcome of the Bill. There is no doubt that there are some good parts to the Bill; it is clearly evident. However, from the responses that we have received, there are a lot of questions to be answered. NILGA and many other organisations have raised a number of issues.

1108. For clarification, we propose to take all the points on board, and we will ask the Department to respond before we make any decisions. As you know, there will be an opportunity through the clause-by-clause phase to change and ask questions.

1109. With regard to your presentation, I agree that timing is an issue, but there is a process to follow through. I will ask the Committee to support me in respect of a review, whether it is a two-year review or a transitional period or whatever. We will ask the Department to ensure that there is a review and to see how it will operate and how it will be implemented. I do not think that members will have any issues or concerns about that, and I am sure that we will get support for that.

1110. You also mentioned the lack of communication in respect of the planning issue. Our understanding is that until the governance arrangements are in place, the Bill will not be implemented, which is fine. You said that we should have had the governance in place before the planning.

1111. There was a lot of good communication and a lot of work done with the strategic leadership board, but you said that it stopped in March or April. Is there anything that we can bring forward from those talks? Did you make any progress in relation to that in partnership, or has that all gone?

1112. Cllr Hatch: That evidence is still available and can be picked up on.

1113. The Chairperson: Are you going down the right route with that? Are you content with that?

1114. Cllr Hatch: Yes.

1115. The Chairperson: OK.

1116. Cllr Hatch: Would it be helpful if we sent that to the Committee?

1117. The Chairperson: It certainly would, but I know that, unfortunately, that part was exclusive of planning. There may have been some talk, but this process was clearly not talked about.

1118. Cllr Hatch: The principles are similar.

1119. The Chairperson: Yes, they are. There has been consultation, but that has been on the broad principles as opposed to the fine detail that we have today. You brought up the communication issue in your presentation.

1120. Cllr O’Kane: In the past, there were regular meetings. Now that the SLB is not meeting, the paths have ceased meeting, although the work and the evidence is still there and can be looked at again. There used to be regular meetings between the Department, for instance, and NILGA, which is the voice of local government. It is impossible to go around all the different councils. As far as I know, there used to be a regular quarterly meeting between NILGA, as the voice of local government, and the Department. That is when issues could be tabled. That has not happened. There may be some sort of ad hoc communications, but they are no substitute for regular structured meetings.

1121. The Chairperson: Like I said, we will ask the planning officials who are here about how that communication gap will be sorted out over the next period depending on what happens with the Bill. The message should be that communication is needed now, and the issues in the Bill need to be addressed.

1122. Resources and capacity building are major issues for us. All of the responses that we have had to date have highlighted that. As a former councillor, I agree that there needs to be capacity building in terms of councils and how they propose to go through all of that.

1123. David talked about the funding model, and the Committee has asked about that on a number of occasions. To be honest, and I will say this to the planning staff, even when we talked about budgets here, the money from planning receipts during the good period was certainly not pumped back into planning. It should not be regarded as being on planning receipts only. We would like to see a proper funding model for the delivery of planning. That needs to be done in tandem with local government.

1124. Cllr Hatch: Local government is not afraid to make its contribution and to utilise building control services and the regulatory side of council functions to get some sort of synergy when planning does come over. However, getting a properly agreed funding model on which there is clarity is of key importance.

1125. The Chairperson: You talked about cost neutrality.

1126. Cllr Beattie: Yes.

1127. The Chairperson: I am just picking up on points that were made. We will pass all of those points on.

1128. You also mentioned governance. We have talked to the Department about that when its officials have come up. Certainly, the local government reorganisation Bill will have to be moved forward, and hopefully that will happen in the next mandate. As I said, this will not be implemented, but there is a body of work to be done in this Bill to get that all ready to go.

1129. You highlighted the issue of the independent examination. David, you talked about local policies and development plans and even an element of community planning. There has to be a connection between this process and the governance process in statute to make sure that there is complete tie-in. With regard to the independent examination, where the plans go back to the Department and are sent to the Planning Appeals Commission (PAC) and then brought back again, have you any comments on that?

1130. Mr McCammick: I will get back to you on that, Chairman. I do not have all the papers on it with me.

1131. The Chairperson: No problem; you can come back to us on whatever we need you to.

1132. You mentioned the pilot schemes. The Committee is asking the Department about its proposals for the pilot schemes. Does NILGA have any indication about or information on those schemes?

1133. Cllr O’Kane: Absolutely not. At one stage away back, I think that three pilot schemes were in operation. I do not know whether those are the three that will come about. There have been so many changes since then, such as those in the Planning Service, and the three pilots were mooted about a year ago. I do not know what they are now or how they could run without governance arrangements.

1134. Cllr Hatch: That illustrates the lack of communication that exists. As an organisation, we should know where it is proposed the pilots will be run, how governance arrangements will be tackled and whether we will use the principles that are used for other governance issues. Those principles are fairly good, because they safeguard minorities and so on.

1135. The Chairperson: I totally agree, and obviously, the sooner we see that, the better. However, you made an interesting point when you said that, wherever those pilot schemes may be rolled out, the issue is about governance. I know that planning officials are here, and the Committee will put that across to them.

1136. I will mention two other issues. You picked up on the hierarchy in development management here. We received a copy of a document that shows how the planning hierarchy is split into major, regional and minor development, but I do not think that you received that. Do you have any comments to make on that?

1137. Cllr Beattie: I have chaired NILGA for four or five years, and I know that changes take place in the Planning Service regularly. We go from dealing with one group of people, and another then comes in after them, and we are sort of on the outside. I think that we should have been on the inside, because, at the end of the day, we councillors will deliver all this. We have to know what money we have to deliver, what it is that we are delivering and how to resolve all the issues, such as those that the questions in our submission raise. I feel frustrated by sitting on the outside and by not being part of the process. In other words, things have been done to us instead of with us. I feel that that is a view that NILGA has held. It would like to have been more deeply involved. If NILGA had been involved earlier, some of these issues may have been addressed and may not have arisen at the last moment.

1138. Cllr Hatch: On the hierarchy issue, we have not had sufficient figures about the levels of staffing and so on, what their skills are and what it is proposed will be transferred. At my council meeting on Monday night, I received some figures that were produced by the Northern Ireland Public Service Alliance (NIPSA), not by the Department. Obviously, therefore, the figures are available, and it would help if they were made available to everybody.

1139. The Chairperson: Arnold, I think that you touched on enforcement. Are we saying that that should be in the model? Is it to be outside the model? Do councils have any views on that element?

1140. Cllr Hatch: We would like enforcement to be part of the model. However, the history to date has been that it has never been funded or implemented sufficiently well. That is an area that we need to consider so that we can make sure that it is properly resourced.

1141. The Chairperson: I think that you highlighted part of clause 184(7), which states of stop notices:

“Claims under this section shall be made to and paid by the council".

1142. Would you like to expand on or make any comments on that?

1143. Mr McCammick: The degree of risk that is involved for local government is a concern. Talking about something in theory is fine, but what will be the practical implications of all this coming home to roost, in a manner of speaking? There needs to be more information to support it.

1144. The Chairperson: As Chairperson, I thank you for your presentation. I will invite questions from other members. The Committee will seek answers from the Department to the many questions that you brought along. We will pass on those answers and liaise with you through the Committee staff, as we have in the past. That should not be a problem.

1145. Mr Kinahan: Thank you for your presentation. We have a mass of information to raise and follow up. However, my concern is that we are trying to implement this too fast. This is the first of five questions. Given that we went slowly and did not get anywhere with the RPA, do you believe that we could do this better if we were to do the best that we can now and put in the structures that we had for the RPA, but condense it into a shorter time frame, such as six months? The bulk of the work would then go to the new Assembly. Is it manageable, and would we be doing it better if this were the first task of the next Assembly, assuming that the next Assembly, the Minister and the Department will want to take it through?

1146. We seem to be going round in circles about the resources. We all know that the way that it is coming at us means that we need more resources. Councils have a whole lot more to deal while they are dealing with this. From your end, is there any way that we could get a best guess of what it would cost, even if a few councils told us, so that we would have something to work with both ways? We will push the Department if we can one way, but we need some guidance from the other side

1147. You said that you thought that the review of public administration (RPA) or local government reorganisation should be in place first. That again pushes me back to my first question of whether we should wait until the reorganisation of councils was done. You mentioned liability and governance. As the Department seems to have a mass of power, do you have any suggestions as to what sort of checks should be put in place?

1148. Finally, do you have anything to add that we have not touched on already? Is there an extra mechanism that we should put in place with the strategic leadership boards (SLB) or policy development panels (PDP) if we were to try to do things quickly? I have asked a mass of questions, and I know that we could discuss the matter for ages.

1149. Cllr Beattie: We are happy with the Bill and do not want to lose it. As the Chairperson said, a review will be built into the process, which will please some of us. You referred to the fact that a council may give permission for something to go ahead, but the Department decides to put a stop to it. Who would pick up the bill for that decision? Would it be the council, or would it be the Department, because it had decided that the project in question should stop? Also, when the Department intervened, should it have done so earlier? There is also the matter of the power that the Department has over local government. All those things need to be looked at in more detail.

1150. Mr McCammick: The cost issue is difficult, and we have been asking for information on it for a couple of years. To some extent, it is not helped by the fact that local government and central government account for things differently. I have experienced some of that, as my council is looking at the possibility of a business plan for planning because we are so badly out of date. However, that is only part of the formula. We are looking at ways of bringing forward part of the new regime, although not all of it. We need information from certain services.

1151. Cllr Hatch: Where introducing parts of it now is concerned, I presume that there would be some form of consultation as to what you were proposing to put through now and that it would be left for further clarification, development and engagement when the new Assembly is set up. My gut feeling is that that would probably be wiser.

1152. May I be excused? I have a bus to catch.

1153. The Chairperson: It is good to see that you are using public transport.

1154. Cllr O’Kane: The RPA was dragged out — very much so — although a lot of good work was done. Of course, as everyone says, the devil is in the detail, and, to prevent problems from arising in the future, you must get the details right and not rush things. However, we all have a tendency to take things to the ultimate and then debate and deliberate and so on.

1155. There needs to be some mechanism for debating these issues. At the moment, there is no partnership between central and local government. Without being offensive to anyone, the partnership is a bit like that between Fianna Fáil and the Green Party, where the communication was absolutely nil and was done through the media. That is the type of communication that we have.

1156. I do not know what the mechanism would be. There could be reluctance to set it. The SLB and its predecessor, which was a policy panel whose name I forget, was a useful interface, and many proposals came forward from those panels. When people got down to teasing the proposals out, changes were made, and that delayed the process. The process was probably dragged out because of uncertainty about the local government reorganisation Bill and the boundaries, etc, and inertia set in.

1157. There needs to be an interface between local government and central government. Along with dealing with all the governance issues, the PDP was to be a central/local government partnership forum. That was one of the last things that never got done, because everything stopped. It was envisaged that Departments would meet with representatives from local government on a need-to basis every quarter. In Wales, Departments meet on a statutory basis with local councils every so often. I think that that happens in Scotland, but I am not sure about England.

1158. A lot of good work was done, and a lot of it can be picked up again. For instance, there was a lot of detail in the mandatory code of conduct, and the Department suggested proposals to that. When we got our teeth into it, quite a lot of things were amended. There used to be a quarterly interface between NILGA and the Department, which seems to have ceased, but I stand to be corrected. I am not a member of NILGA’s officers group, but I think that that may be a starting point for exploring the issue. If it is going to be a partnership, there must be engagement. That is what we are looking for.

1159. I pay tribute to the departmental officials who serviced those PDPs. Two members from each political party were also on the panel, and we spent some time deliberating all those issues, including the code of conduct and council constitutions. However, planning was the issue that we never got our teeth into. That section on that was blank, but we got some papers from the Convention of Scottish Local Authorities (COSLA) about what should be in it.

1160. The Chairperson: I do not think that we will follow the Fianna Fáil/Green Party model, to be honest with you. I think that it is time to move on from that. I did not think that that would be mentioned in this Committee.

1161. Cllr O’Kane: Every council, even under the new regime here, will have to have a code of conduct, which the Department may set. In Scotland and England, councils devised their own template for a code of conduct for planning, and I know that COSLA did the same.

1162. The English model is very bureaucratic, and we do not envisage adopting it. The COSLA model has been in place for several years, but it has been regularly amended. Therefore, there are obviously teething problems with those models.

1163. The Chairperson: There definitely are. However, we will get the right model in the end.

1164. Cllr O’Kane: People will have to be educated. For example, in the new dispensation, how will planning agents approach councillors? How will the public approach councillors? How will councillors respond if a planning agent or a member of the public comes to them? For instance, if somebody said something about the incinerator in Glenavy, and a decision had to be made on it, that person would have to absent themselves. The English have a ridiculous situation whereby if one person lived in a row of terraced houses and a second person at the end of the street applied for an extension, the first person would have to exclude themselves because giving the other party a decision might be an advantage to the first.

1165. The Chairperson: We can argue about the issue all day. Governance and reorganisation are key elements of the issue, but we will stick to the Planning Bill for now.

1166. Mr W Clarke: Thank you for your presentation. I declare an interest as a local councillor in Down District Council.

1167. This system will obviously be a major culture shock to a lot of people and different organisations, including councillors and the Department. There are lessons to be learned about planning reform from England and Wales, as well as from the South. Have you engaged with your equivalents about their experiences, how they have coped and what they would do differently?

1168. I agree with what you said about partnership and communication. I have gone through a number of Bills now, and I can see that, in this instance, partnership and communication are not good enough. This is not a criticism of the Department, but I think that there needs to be an equal footing whereby both parties can sit down at an early stage and work through the process. They could even do that on a fortnightly basis. That sort of relationship needs to be built up. Coming to this Bill was a culture shock to the Committee in trying to get our heads around what we are trying to deal with. Therefore, I think that lessons need to be learned. People need to sit down regularly to work through all this. It is as though we legislate and you then do what we tell you. That is not going to work; we need to come together. Therefore, we need to tell the Department that that must happen.

1169. A lot of work on capacity building training for our councillors needs to be done. Councils are very weak on training for councillors. I will not go into my personal experiences, but I know that any time that someone tried to do a training course, they were refused because of cost or some other reason. That is a serious issue that NILGA needs to examine.

1170. I also asked the Department about the pilot schemes. We need to manage that change. We need to get all the agencies round the table, and we need the resources to do that. That has to happen in all areas, not just in three. There is no way that some councils can be discriminated against and left behind in the process.

1171. We have been told that councils had to come forward to the Department and declare that they wanted to do a pilot scheme, either through the transitional committee or through a cluster. The onus was on the councils to come forward and say that they wanted to take part. That was the first I had heard of that, and I am a councillor, so I was a bit alarmed. In reality, we need to sit down and work through this for a couple of years.

1172. The other issue is that of third-party appeals. What is the membership’s opinion about that? It is obviously pretty divided.

1173. Cllr O’Kane: There is no settled view as yet. That is a contentious issue, and there are difficulties about it even within parties. It could become a begrudgers’ charter as opposed to being a protection for the community. That is an issue that NILGA has not had time to discuss yet, but I envisage that we will be discussing it on Friday. Jack knows more about it, because he is on the planning committee. I envisage that it will be carefully considered. I do not know what the actual decision will be. There are pros and cons to the matter.

1174. Cllr Beattie: There has been consultation with others. We went across to Scotland and saw the model operating there. For example, there was a guy who wanted to build a golf club, and there was an issue when a councillor went along to meet him at some sort of presentation but was debarred from whatever else happened. That shows that the code of conduct is very strict.

1175. Third-party appeals are a contentious issue. I believe that you have to take on board third-party concerns, but, at the same time, they can be an impediment to good decisions going forward that need to do so quickly. Trying to strike that balance is very difficult. As I said, we have looked at what is going on elsewhere. England and the model that is used there were mentioned. However, the English model is a wee bit too restrictive. The problem is trying to get something that can work.

1176. There are questions about the process. Where communication is concerned, I would have liked to have seen the Department working with us along the way, but, for different reasons in the Department, that did not happen. For example, the Department was not expecting the downturn in the economy. It wanted us to take on around 300 staff in local government, which we could not have done. Problems occurred that were beyond our control, but, nevertheless, I think that we should have been consulted more often. We are still consulting with the Department; we have a meeting with Ian Maye on 2 February, so I think that perhaps now we are getting down to the nitty-gritty. However, I would have been happier if we could have done that earlier.

1177. Mr W Clarke: What is NILGA’s position on the pilot schemes? Is it calling for councils to come forward to get involved in the pilot schemes?

1178. Mr McCammick: I understand that the Minister called for volunteers when he made his announcement just before Christmas. The timing in trying to deal with this has not been brilliant. There are so many aspects to it, and I understand there has been no joined-up conversation about which councils the pilot schemes could or should be run in. A call for volunteers was made, and, at this point in time, I am not aware that any hands were put up. However, I am sure that some will.

1179. Mr W Clarke: It is important that all councils are involved in the pilot schemes, even if there is just a representative group. A pilot scheme is no good to me, to tell you the truth, because there is so much work to be done that I am afraid that we will sleepwalk into it.

1180. Cllr O’Kane: Back when pilot schemes were first mentioned, the problem was that the Planning Service would not have had the capacity to service a lot of them.

1181. Mr Ross: I would point out that, if the scheme were rolled out everywhere, it would not be a pilot.

1182. Mr W Clarke: No, we could have them in clusters.

1183. Mr Ross: If it were everywhere, it would not be a pilot.

1184. Mr W Clarke: If we had big enough pilot schemes, we could have three that could be clustered.

1185. Mr McCammick: In calling for three or four councils to volunteer to run the pilot schemes from April this year, I understand that the Minister had a notion to roll it out across all councils by April 2012. The Minister wants to try to do it quite quickly and to tease out what problems there may be in managing the new system. However, as I said, I am not aware of any volunteers.

1186. Mr W Clarke: I want to make a point about capacity training for councillors. In my opinion, a training course for councillors must be set up now for community planning and planning responsibilities.

1187. Cllr O’Kane: Community planning is a huge issue, and different people have differing definitions of what it is. The expectations that everybody, including councillors, has of community planning are away up there somewhere. The requirement to engage with the community is also a serious issue that has to be addressed.

1188. The Chairperson: I know that, and we will. I am mindful of the time and that we are going over issues that we have talked about already. We will ask the Department about the pilot schemes. There have to be clear pilot schemes, but the key to all that is the review period and how that is rolled out.

1189. Mr Savage: Thanks for your presentation, gentlemen. All the delegations that I have heard present evidence to the Committee have welcomed the proposals. I am speaking now as a councillor on Craigavon Borough Council. When I joined the council, all the councillors were looking for more power. Now that power is within our grasp, we have to realise one thing, which is that with power comes responsibility.

1190. I can understand the position that you are in, Mr McCammick. At present, councillors can shirk their planning responsibility and leave it to the planners. That responsibility will now rest with the councillors, and, ultimately, it will rebound back on to chief executives such as yourselves. You are quite right to be concerned about that.

1191. However, I will come back to Mr O’Kane’s point. You said that there has been a breakdown in communication over the past months, or for however long. You also said that there used to be quarterly meetings, so if there has been that breakdown in communication, the stage has been reached where quarterly meetings are not much use. There would need to be monthly meetings so that everybody can keep up to speed with what is going on. I think that time is important in all this.

1192. When we listen to all that is being said about the Bill, which is only one aspect of local government reorganisation, we see why it has not taken place. I think that it is because so many people have been shirking their responsibilities. Whoever is in place after the next elections will have a responsibility, and the code of conduct will have to be adhered to. Training may be involved in the process.

1193. There will be a big responsibility on whoever is going to be elected. If we look to give more power to local government, we cannot shirk those responsibilities. We have to face up to them. I do not envy you your job, Mr McCammick.

1194. Cllr Beattie: I agree. I know that that is the case, and I said at a meeting in Craigavon that we are now in the driving seat. However, the question is about what we are driving. If I can get that sorted out, we will know exactly where we are, including with the code of conduct and everything else.

1195. The Chairperson: It is a big job and a big undertaking, but you are up for it.

1196. Mr B Wilson: I declare an interest as a member of NILGA and as a councillor for North Down. I am interested in how the council will deal with the planning applications. A lot of applications will be decided by the planning officer, and a percentage will come to the council. What percentage will be determined automatically by the planning officer?

1197. When applications come to the council, will a specific committee be set up to deal with planning, or will the full council be involved? If the full council will be involved, councillors will perhaps be unable to get involved in campaigns against planning applications.

1198. The Chairperson: Excuse me, Mr Wilson, I will just interrupt you. As Councillor O’Kane outlined, influence means that a corporate council cannot be involved. If the application is for somewhere in your area, for example, you would have to step out of that decision-making process.

1199. Cllr O’Kane: You are talking about the new arrangement. At present, planning officers deal with non-contentious planning applications in the streamlined system. That is working, and an increasing number of planning applications are going through that system. When the Bill comes in, councils will be required to introduce a scheme of delegation. In other words, they will delegate powers to planning officers, or a streamlined planning committee could deal with planning applications. That planning officer or streamlined committee with delegated powers will be able to make decisions, and they will not have to go back through the council’s body corporate.

1200. Every council will have to have a standards committee to protect people against abuses. If there are complaints, every council will be required to have a standards committee and a monitoring officer. However, there is an issue about whether every council can afford to have a monitoring officer. Complaints will then be assessed and dealt with.

1201. Mr B Wilson: Will the streamlined procedure take 80% of the applications, or will it take 20%?

1202. Cllr O’Kane: I am not sure how many it will take, but it is taking an increasing number, and it is working very effectively.

1203. The Chairperson: I am mindful of the question, but we are getting into the specifics of the Bill. The issue is that councils, like everybody else, will have to adhere to planning policy statements (PPS), area plans and the regional development strategy. That is all in the criteria. I do not mind the question being asked, but I do not want to get into the specifics, because there is no way that any council can tell whether it is taking 80% or 60%.

1204. There is going to be a formula, and you mentioned the schemes of delegation. If you see anything in that that we need to amend, or if you have any questions about it, we will need to clarify the issues from the Department’s point of view. If you are not happy with it, we will need to look at amending it.

1205. I want to reiterate your earlier point, Councillor O’Kane. It is a valid point about whether councillors can influence decisions. The public will ask who they are voting in and why.

1206. Cllr O’Kane: They will ask what is going on.

1207. The Chairperson: Exactly. To move it up a further stage, it is the same as MLAs also being councillors. They are up here making regulations and decisions, and then they are up and down to councils. However, we will not get into that argument today.

1208. Thank you for your presentations, gentlemen. No doubt we will be in contact with you.

1209. Cllr Beattie: Thank you for listening to us. We have a meeting on Friday, and we will forward some of the outcomes from that to you.

1210. The Chairperson: Thank you.

1211. We will now receive oral evidence from the NI Housing Executive. I welcome Esther Christie, who is the assistant director of corporate planning in the Northern Ireland Housing Executive, and Catherine Blease. You are both very welcome. The procedure is that you make a presentation, after which I will invite members to ask questions.

1212. Ms Esther Christie (Northern Ireland Housing Executive): I have copies of my presentation if you would like us to hand them out.

1213. The Chairperson: If you have enough copies, please send them around.

1214. Ms Christie: It is a slightly more condensed version of our submission, which might be helpful.

1215. Thank you very much for the invitation to give the Housing Executive’s response to the Planning Bill. There are detailed comments and summarised recommendations on the Planning Bill in our handout. In view of the time constraint, if you do not mind, I will try to focus on our nine recommendations, which are listed in the handout. If I have any further time at the end, I may come back to some of the supporting comments, if that is alright with you.

1216. The Housing Executive is generally content with the majority of the proposals in the Planning Bill. Our comments relate to Part 1 of the Bill, which deals with functions of the Department of the Environment with respect to the development of land; Part 2, which deals with local development plans; and Parts 3 and 4.

1217. In the handout, you will see an outline of the Housing Executive’s role as the strategic housing authority and as a key stakeholder in all levels of the planning system in Northern Ireland. The Housing Executive looks forward to developing a close working relationship with the new planning authority in Northern Ireland, particularly in the areas of community planning, local development plans and planning application matters.

1218. In general, we are content with Part 1. We offer supporting comments on Part 1 in the handout; I do not intend to dwell on those now.

1219. Our first recommendation relates to Part 2, which deals with local development plans. The Housing Executive would like clarification on clause 6(3). That clause states that, where there is a conflict between two plan policies within one development plan, the previous adopted plan should be referred to for the resolution. That may not be appropriate; it may be preferable to defer to the Department to resolve any conflicting matters. We have some details of that in our submission, which I can return to if you would like.

1220. The second recommendation on Part 2 is on clause 8(5), which we would like to see amended. That clause states that the council must take account of the RDS when preparing the plan strategy. Our view is that it would be preferable to retain the requirement for development plans to be in general conformity with the RDS.

1221. Clauses 13 and 14 legislate for the council to review and revise local plans at such time as the Department describes or when the council deems necessary. Our third recommendation is that a standard time frame for the lifespan of a development plan and plan review would be preferable, particularly to stakeholders, who should then be expected to engage in the development plan revision process.

1222. Fourthly, the Planning Bill does not seem to require a statutory link between the community plan and the development plan. In England and Wales, according to the Planning and Compulsory Purchase Act 2004, there is a duty that the:

“planning authority must have regard to— …

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

1223. The Housing Executive supports the inclusion of such a clause in the Planning Bill, to ensure that any community strategies are closely tied-in to the development plan process.

1224. Moving on to Part 3 of the Bill, which is about planning control, our fifth recommendation is around clause 24(2), which states:

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

1225. The Housing Executive’s view is that that clause is widely open to interpretation, and we feel that further clarification is required.

1226. Our sixth recommendation is that we feel a definition and further details of what constitutes local and major developments should be set out in regional policy, possibly in the review of PPS 1. The Housing Executive would like to highlight that an agreement was made with the Planning Service that planning applications for social housing would be defined as major developments, and would, therefore, have pre-application discussion and performance agreements, which would apply to all social housing applications. We would like the Department to confirm that that agreement is still in place and will be addressed in secondary legislation and policy guidance.

1227. Our seventh recommendation relates to clause 58, which states that an applicant may appeal a planning decision if their application for planning permission is refused or to remove a planning condition. The Housing Executive feels that clause 58 should revisit the potential for third-party appeals to be introduced, as was pointed out in the reform of the planning system report.

1228. Our eighth recommendation relates to clause 60(1), which states that, where planning permission has been granted, development must be started within five years of the date on which permission was granted, or another period that may be longer or shorter, as specified by the council or the Department. The Housing Executive is concerned that any longer duration of planning permission may encourage land banking, which could lead to a shortage of development in the future as well as price inflation. It could also result in a lack of revenue for planning authorities if timescales for planning applications are too long and drawn out.

1229. Our final recommendation relates to the fact that the Planning Bill is silent on developer contributions. In the ‘Reform of the Planning System in Northern Ireland’ report, the Department argued that it is right that developers contribute to the provision of infrastructure. We feel that the Planning Bill should revisit that particular aspect.

1230. That concludes our recommendations. If I have the time, I could go over some of the supporting comments.

1231. The Chairperson: Go ahead.

1232. Ms Christie: Thank you very much.

1233. I return to Part 1, which refers to the functions of the Department of the Environment. The Housing Executive supports clause 1, which states that the Department will retain responsibility for formulating planning policy, which should be in general conformity with the RDS. We also support the idea that all planning policy should contribute to the achievement of sustainable development. Secondly, the Housing Executive supports clause 2, which requires the Department to prepare a statement of community involvement.

1234. With regard to Part 2, which deals with local development plans, the Housing Executive supports clauses 4 and 5, which require a council to prepare a statement of community involvement when preparing development plans. The Housing Executive welcomes the fact that the development plan should contain two parts: a plan strategy and a local policies plan. Together, clauses 6, 8 and 9 state that the plan strategy should be adopted before the local policies plan is prepared.

1235. The Housing Executive welcomes clause 17, which facilitates the joint working of two or more councils on a joint development plan. It also welcomes legislation supporting the Department’s monitoring, production, examination and review of development plans, which would ensure consistency in approach across all council areas.

1236. Finally, the Housing Executive supports clauses 46 to 49, which provide powers to decline to determine applications. A planning authority would be able to send back applications that are, in essence, duplicate, as there are no significant changes to material consideration. We feel that that is a very good efficiency measure that should facilitate the delivery of more efficient working practices for the planning authority and consultees.

1237. That concludes my presentation, which I hope was helpful.

1238. The Chairperson: Thank you for your presentation. You have raised a lot of questions, and we may be asking the Department more questions. However, I want to go over one or two of your points. You have clarified your first recommendation, which relates to clause 6(3).

1239. You referred to land banking, which has been a problem. Given the current economic situation, people have come to the Committee and asked about single houses as opposed to what you are talking about. Do we need to narrow down the type of development to stop the process of land banking, or are we looking at a front-loading system where everyone is involved and, hopefully, we will have community involvement?

1240. Ms Christie: The Housing Executive is looking at it from the perspective of supply and demand at a general level. We encountered an enormous problem before the market crash when land was in scarce supply. That meant that prices were very inflated, and that pushed the cost of developing social housing in particular, which is our main concern, through the roof. If the duration of planning permissions were to be widely extended beyond the five years, there could be an opportunity to lose control over the land supply issue. At least it is one measure that local planning authorities could enact to ensure that there is an adequate supply of land in their local area. We ask the Committee and the DOE to look seriously at that matter again.

1241. The Chairperson: For clarification, am I right in thinking that the identified need for housing will play a big role in that?

1242. Ms Christie: Yes. Under its statutory remit, the Housing Executive is there to assess housing need, and it carries out that function. The Planning Service and the new planning authority will be there to identify sufficient supply of development land. The difficulty arises when it does not have any control over the supply of land that exceeds a reasonable statutory period of approval, and land banking, thereby, takes place. A scarcity of land in any council area will impact on the ability to supply much-needed social housing in particular, which is our main concern, and we ask the Department to look seriously at that issue again.

1243. The Chairperson: Thanks for bringing up that point. I am trying to pick up points that have not been addressed by other respondents. The land banking issue certainly needs to be looked at. A lot of people are now offering their land for social housing, which may be a sign of the market conditions, but it is something to think about.

1244. I want to talk about your recommendation concerning the link between the community plan and the development plan. We talked earlier about reorganisation and governance and the whole tie-in. That needs to be in statute or tied-in in some way.

1245. Ms Christie: Absolutely. We thought that it was very interesting that the Planning Bill did not have specific reference to that, unlike the English and Welsh example. There may be an opportunity for the Department to look at that again to see whether there could be some sort of linkage there. That is our fourth recommendation.

1246. The Chairperson: That is a valid point. In respect of recommendation six, obviously PPS 1 will change. Will you expand on that?

1247. Ms Christie: Our particular interest is in ensuring that social housing is defined as major development in the regional policy plan guidance. That is very important because we have a protocol with the Planning Service whereby there are pre-application discussions for all social housing scheme applications. We feel that that is extremely helpful because it ensures that a planning application is right the first time, and it saves time at the end of the process.

1248. We would like an assurance that social housing will be a major development category that will be taken forward in secondary legislation and policy guidance. We would like the Department to reassure us that that will happen. A number of social housing schemes are in the size threshold below that set for major planning developments as outlined in the reform of the planning system report of July 2009. It is imperative that the protocol that we have with the Planning Service in respect of pre-application discussions for social housing schemes continues into the future.

1249. The Chairperson: Funnily enough, I think that yours is the first response that I have read that mentions performance agreements, which is an issue that needs to be looked at. However, I want to talk about pre-application discussions. The Planning Service can direct applicants, but it cannot say one way or another in those discussions whether someone is going down the route of an approval. Some people have told me that they have had those discussions, but they were only discussions. In your experience, is there any way that we can open that up a bit more?

1250. Ms Christie: We looked at the pre-application discussions as focusing in on the planning application and giving an indication as to whether an application needed to be improved in its design or form or whether there were access issues that needed to be addressed. That allows the detailed planning application to be improved and enables the planning officer to have all the relevant material to handle the application once it is formally submitted to them. It is an efficiency measure because it saves the planner time, and there is less toing and froing between the applicant and the planning officer. We have found that social housing schemes, even if they are small, are never easy. Therefore, anything that saves time for the planning authority and for us is definitely to be welcomed.

1251. The Chairperson: Do you want to expand a bit on the performance agreements? What do you see in them? Where do you think that they should go?

1252. Ms Christie: Performance agreements are extremely important. Resource planning is certainly going to be a critical issue for the planning authorities. The pre-application discussion and performance agreements help to project-manage the entire workload. Therefore, planning applications that fit the category and are permitted to have pre-application discussions and performance agreements are going to fare best, I would think. I certainly think that pre-application discussions and performance agreements are a fundamental part of the resource management of the new planning authorities.

1253. The Chairperson: Clause 10 deals with independent examination. How does that fit with your social housing proposals, that the decision on the development of land use should go back to council?

1254. Ms Christie: In the development plans?

1255. The Chairperson: Yes. It is OK having a pre-application discussion, but, ultimately, if we are trying to include everybody, it will come back to the council. Will you expand on how you see that?

1256. Ms Christie: In the development control framework we are seeking agreement that when a planning application is made for a social housing scheme, it will conform to the major scheme category. That would mean that it is facilitated by pre-application discussions, in order for the planning application to be of the right standard to enable the planning authority to make a decision on it, whether that is approval or refusal. All of the right elements should be in the planning application to enable an appropriate decision to be made on a social housing scheme. Therefore, it may well be that a better planning application goes through to the council from the planning officers with a suitable recommendation; either approval or refusal. We see it within the resource management stream in the development control side.

1257. The Chairperson: I have one final point. You spoke about developer contributions, and in some of the responses and presentations there has been some discussion about a community infrastructure levy.

1258. Ms Christie: The ‘Reform of the Planning System in Northern Ireland’ report from July 2009 looked at developer contributions. The Department put forward the argument that it was right for developers to contribute to the provision of infrastructure, and it put forward two options. One was the community infrastructure levy, and the other was taking an article 40 planning agreement process through. The Housing Executive is on record as preferring the latter, as we feel that it is a more direct link to a social housing scheme and that it would be more in line with section 106 in England.

1259. The Chairperson: I want to talk to you about the whole idea of the planning policy statements, the area plans and the regional development strategy. I know that there is another planning policy statement on its way — PPS 22 — which will have an element of social housing.

1260. Ms Christie: Draft PPS 22, as we understand, deals with developer contributions and is being prepared at the moment.

1261. The Chairperson: So, we are going to have a series of planning policy statements.

1262. Mr W Clarke: Thank you for your presentation. The Chairperson has touched on most of the points that I wanted to raise. You mentioned article 40 in relation to community infrastructure provision; will you expand on that?

1263. Ms Christie: An article 40 planning agreement is a legal document drawn up between a developer and the planning authority that specifies what measures should be contained within the development. It is stronger than a planning condition because it is legally enforceable. That is what attracts the Housing Executive to that particular measure. It can be specifically directed to the provision of social or affordable housing. It would be equivalent to section 106 in England, which is a type of legal planning agreement. It is a contract signed by the developer and the planning service, and is, therefore, legally enforceable. It is a much more attractive proposition from the Housing Executive’s perspective.

1264. Mr W Clarke: Would you be looking at that for community provision such as community centres?

1265. Ms Christie: Yes; the community infrastructure levy is very much directed towards that type of infrastructure. We understand that, in England, they are looking at hospital and education provision; we are much more interested in an article 40 planning agreement because it can be directed to the provision of social and affordable housing. We are very focused on that.

1266. Mr W Clarke: In some area plans, land is zoned for social housing and for mixed tenure. You spoke about land banking, but do you think that there is an opportunity to include provision in the Bill for capping an amount, say 25% or 30%, of that land at a lower rate for social housing, so that there has to be some social housing? There is a stigma around it; I have found as an elected representative that there are a lot of objections to social housing, just because it is social housing and for no other reason. People have bought homes in an estate and do not want social housing beside them. It is different from in mainland Europe where most people rent their homes, but there is this culture of buying homes in Ireland. Do you think that there is an opportunity to say that of all zoned land, a certain amount must be made available for social housing? I know that there is affordable housing, but I want to draw a distinction between them.

1267. Also, in relation to land banking, you mentioned a five-year development period. I would welcome that as well. Would you like to see a situation where the Housing Executive or housing associations would have first option of taking that land? Perhaps they could buy it at a certain value.

1268. Ms Christie: To take the first question, it is our understanding that the aim of the regional development strategy was to produce mixed and balanced communities throughout Northern Ireland. We feel that the PPS 12 housing settlements policy was one of the vehicles for ensuring conformity with the RDS and the delivery of that objective, which is very important. Certainly, draft PPS 22 may help that and may include reference to a percentage allocation being given over to social or affordable housing, as Mr Clarke suggested. However, if development plans are to be able to deliver the aims of the regional development strategy and enable people to live in a mixed and balanced way, there need to be measures to address and deliver that.

1269. Therefore, PPS 12 housing settlements was one aim. Perhaps, PPS 22 might help establish that as well. However, the planning system exists to try and deliver the regional development strategy’s aims and objectives, which are, effectively, to have a balanced and mixed community. There should be no ghettoisation.

1270. Our view is that land banking is about supply and demand. It is about ensuring that land banks are not created to the point where land becomes in such short supply that prices are inflated and, from our point of view, social housing delivery cost becomes extremely difficult to meet. A measure to enable planning approvals to be held within a five-year period would be helpful in trying to avoid land banking. Planning authorities will have to address that. To have a need is one thing, but the hardest thing is for planning authorities to have sufficient land to deliver on that need. Otherwise, we will have terrible difficulties in the future.

1271. Mr W Clarke: Thanks. There are probably legal implications for the issue, although not for what I will say, but just to tease this out: in respect of the zoning of land for social housing, we all went through the period when no land could be bought by housing associations. Should there be provision for social land to be bought at 25% or 30% below its valuation? Should such land be made available at that price? I know that there is legal stuff regarding that, but —

1272. Ms Christie: It is hard for me to say.

1273. The Chairperson: No, we could not.

1274. Ms Christie: Land and Property Services places a valuation on the land and the social sector buys at that valuation. Whether, because it is for social housing, that valuation is less than for other —

1275. Mr W Clarke: Is there a reduction?

1276. Ms Christie: In that sense, it may take care of itself, but that is outside my brief.

1277. The Chairperson: To follow up on that: if there is clearly identified need, is it not better for a council to be inclusive by looking towards a process of finding land that can be zoned for development? I do not agree with ghettoisation, but I have seen examples of where that has not happened. I have seen people paying £200,000 for a house in a development and the next thing is that people are renting the house next door. At the moment, the market is dictating that properties should be rented. Would it not be better — although I know that the Housing Executive already does this — for you to work alongside councils in identifying need and looking at where land should be zoned for housing development? I hope that will be the approach, as opposed —

1278. Ms Christie: We work with Planning Service and look forward to working with the new planning authorities to look at issues of that nature.

1279. Mr Savage: I have a quick question. I listened carefully to what Ms Christie said about the land bank. I am a councillor in Craigavon, where the Housing Executive has a pile of land — we have to be careful about calling it a land bank, or whatever. I welcome your suggestion about having pre-application discussions with planners. However, in all your discussions you will have to start to build houses in which people want to live.

1280. Far too many houses have been built in which people do not like to live. You must change that type of house. I see far too many of them boarded up. Change has to take place, and I hope that it happens through pre-application discussions. People no longer accept that anything will do.

1281. Modern houses are being built in the Craigavon area. So much experimenting was done, but those houses are not better than — I do not want to say anything about that. We want to see modern houses in which people are proud to live. You have gone a long way down that road, and you should continue in that way.

1282. The Chairperson: Design is certainly an issue. Thank you very much for your presentation. You raised some new points, certainly about land banking. It is not about people buying land as opposed to a period of time. We need to look at that. We will put those questions to the Department and then come back to you.

1283. Ms Christie: Thank you very much for your time.

1284. Mr W Clarke: Could Research Services prepare a paper about the zoning of social housing elsewhere?

1285. The Chairperson: No problem.

1286. We will now receive an oral evidence session from the Planning Appeals Commission. I welcome Mrs Maire Campbell, the chief commissioner, and Mr Trevor Rue, the principal commissioner. Marie, you are very welcome. Is this your first time in front of the Committee?

1287. Mrs Maire Campbell (Planning Appeals Commission): It is my first time before the Environment Committee, but it is not my first time before a Committee.

1288. The Chairperson: No problem. I was referring to just the Environment Committee. Please make a presentation, after which members will ask questions.

1289. Mrs M Campbell: Thank you for inviting the commission to attend this session on the new Planning Bill. As I am sure that everyone is aware, the commission is the independent appellant body in the planning system. That position will not change with the review of public administration and the transfer of planning powers to local councils. We have a range of statutory functions: to decide appeals; and to hear and report with recommendations on a range of matters referred to us, mostly by the Department of the Environment. Those include objections to draft development plans and major planning applications.

1290. I intend to refer briefly to some of the comments in my letter to the Committee about the Bill and then respond to any issues that members want to raise, if that is OK with the Committee.

1291. The Chairperson: That is fine.

1292. Mrs M Campbell: I will make reference to matters referred to the commission. There are a number of instances of those throughout the Bill, but I will refer in particular to clauses 10, 16, 26 and 29, which deal with examinations into development plans and public inquiries and hearings into major planning applications. To date, only commissioners of the Planning Appeals Commission have conducted such examinations, inquiries or hearings. We have reported to the Department of the Environment, which makes the final decision about the plan or application. The Bill proposes that the DOE should be able to appoint other persons to do that work. I have queried whether that is appropriate, whether those people would be independent and whether the examination, inquiry or hearing that they conduct would be fair and independent. That is because the other persons involved would be appointed by the DOE, and the Bill retains a significant role for it in adopting new development plans and deciding major planning applications. It also has other functions throughout the Bill.

1293. We have also said something about submission notices, which are addressed in clauses 43 and 44. They are a bit like enforcement notices but require the submission of a planning application if something is built or the use of a building is materially changed without consent. The DOE policy statements include that as an aspect of enforcement. For that reason, it should be included in Part 5 of the Bill, which deals with the whole topic of enforcement.

1294. However, we have a further point about submission notices. The grounds of appeal against a submission notice are limited, compared with the grounds of appeal against an enforcement notice. Someone who gets a submission notice cannot argue that they should not have got it because they are not the owner or the occupier, nor can they argue that the notice was not correctly serviced.

1295. The most critical factor is that the person can only argue that the matters in the notice do not amount to development. What constitutes development is explained in clause 53. In addition, the Planning (General Development) Order 1993 permits a person to, for example, enlarge or improve their dwelling house or erect a building on their site within their curtilage. If a person is a farmer, the Order permits him to erect certain agricultural buildings. Those are all subject to specified restrictions. If his building is within those specified restrictions, what he has done is development, as defined by clause 23, but it is permitted development under the Order and he does not need to submit a planning application for it because he has express consent for it.

1296. However, if a person is served with a submission notice about such a building, he cannot appeal to the commission on the grounds that what he has done is permitted development. He can only argue that it does not amount to development. We have had a number of appeals on that point. We pursued the point at a judicial review application and lost before the courts. That problem should be rectified to stop people’s only recourse being the possibility of an expensive judicial review. People ought to be able to argue, in response to a submission notice, before the commission that they do not need to submit a planning application for the development, because it is permitted development under the Planning (General Development) Order.

1297. We have also said something about clause 75, which deals with planning agreements. A planning agreement is required to ensure that a developer does or does not do something that could not be covered by a planning condition attached to a planning approval. It is an agreement between the developer and the DOE, and it takes a very long time to complete. For example, one took four years after an appeal.

1298. If developers could draw up unilateral obligations, they would be volunteering to do something to facilitate their developments. If developers submitted unilateral obligations to the DOE, for applications, or the commission, for appeals, the long delays in negotiating and drafting agreements could be avoided, which could speed up the process of delivering appeal decisions.

1299. The final issue that we said something about was costs. The Bill contains no provision for applications for costs in an appeal context, so parties have to bear their own costs. However, applications for costs could arise — and this is the situation in England and Wales — where one participant in an appeal has been put to unnecessary expense by the unreasonable behaviour of another. The provision applies in GB and the Republic of Ireland. We suggested it because we thought that it would be an important restraining influence on a party’s behaviour in an appeal and encourage all to approach appeals in a reasonable, cost-conscious manner.

1300. If the Bill were to make provision for cost applications, those would be considered by the commission, as in England and Wales and the South of Ireland, and they may be successful if, for example, a proposal were to be amended or partly withdrawn at the last minute or if an additional reason for refusal was to be suggested at the last minute. Those are the main points that I want to talk about.

1301. The Chairperson: You are very welcome. I wish to seek some clarification. [Inaudible due to mobile phone interference.] Obviously, there is concern about how the four- and ten-year rules help you, as regards enforcement. It is a problem. What other way could we deal with that? Obviously, you are well aware of the four- and ten-year rules, because they come to council a lot in relation to enforcement. What exactly are you saying?

1302. Mrs M Campbell: What I am saying does not affect the question of immunity from enforcement. All I am saying is that when one is served with a submission notice, one ought to be able to argue that — [Inaudible due to mobile phone interference.]

1303. Presently, one can only argue that it does not amount to development. One cannot argue that it does amount to development but that one is permitted to do it under the GDO. People cannot argue that before the commission. The only way that they could argue that would be by seeking a judicial review of the Department’s action in serving a submission notice on them.

1304. Mr T Clarke: Would your suggestion close the opportunity to use the four- and ten-year rule?

1305. Mrs M Campbell: No, it does not affect the four- and ten-year rule in any way.

1306. The Chairperson: The issue of the independent examination has raised its head, so I want to hear you views on that. I want some clarification. We are trying to get a process, and, through some of the presentations that we have had, we have talked about spatial planning. The Bill indicates the way in which we should get everybody involved in the front-loading system. If we take it to the extent of developing a plan that goes back to the Department for independent assessment, people may look to you or to an independent body to consider it. In setting down the criteria to deal with the Planning Appeals Commission — having gone through council in the past number of years, I have seen some change in the percentage of applications that are upheld — is the process supposed to assess applications to ensure that the Planning Service has done its job correctly? It is run along almost the same lines as the ombudsman. One is allowed to appeal, but is the problem that you are still using the same criteria to assess whether it has been carried out? Do we need to look again at whether there will be a proper, independent check, and do you believe that the criteria laid down for you to process or independently check the system are adequate?

1307. Mrs M Campbell: My points related to the referred work. If the commission is deciding an appeal, its approach is to decide whether the Department has sustained the reasons for refusal that have been raised or whether the objections to the proposal have been sustained. I am not suggesting that there should be any change to that approach.

1308. The Chairperson: I have seen that it has not been that way, and there have been changes. Do we need to look at that process, or are you happy with it?

1309. Mrs M Campbell: I am not quite sure what changes you have in mind.

1310. The Chairperson: I am only asking you. I have gone to appeals, and the criteria and process used in an independent examination are practically the same as those used by the Planning Service when assessing an application. If a council comes along with a whole development process and an idea of what it wants for its area and the plan goes to the Department, the Department might say that that needs to be independently checked. Do the proper processes exist to independently check or assess plans? If it were to go outside the commission, would others assessing a plan be properly qualified to do so?

1311. Mrs M Campbell: If the commission is making a decision on an appeal, it must take account of the development plan and all other material considerations, namely the planning policy statements produced by the DOE. We must interpret and apply those, and, in making a decision, we must decide whether the Department’s reasons for refusal are sustained or whether the objections are sustained. That is our role in an appeal, and we issue a decision on an appeal. Our decision on the appeal is final other than on a point of law, and that is where judicial review of a decision of the commission comes in, as our appeal decisions are subject to the scrutiny of the courts.

1312. With our referred work, which involves looking at the conduct of an examination to consider objections to a development plan or the conduct of a public inquiry or a hearing into a major planning application, what we do is gather all the evidence. We consider evidence from everyone who wants to make representations about a development plan and everyone who wants to make representations both for and against any major planning application. We weigh the evidence and report to the Department on it, with a recommendation as to what the outcome should be. The final decision is made by the Department.

1313. We are saying that the process that we carry out is a rigorous and independent analysis of the objections to a development plan or of all aspects of a major planning application. That rigorous process should continue. If that process is sought to be conducted by persons who are appointed by the DOE and who report to the DOE, which makes the final decision on the application or on how a plan should be adopted, that will not be a fair and independent process.

1314. The Chairperson: I do not want to get bogged down in it, but that is something that this Committee needs to look at. That is what I am concerned about. It is fine saying that it is an independent process, but if somebody brings in any material information or consideration, what weight is given to that? We have seen in the past where decisions have gone one way or another. Do you understand me?

1315. Mrs M Campbell: As in all aspects of planning, there has to be an element of judgement.

1316. The Chairperson: I agree. So long as it is consistent, that is all that I am saying. But what we are teasing out in this —

1317. Mr T Clarke: Chairman, if you do not mind my interrupting you, I would like to make a point about that. Like you, I have been at a few Planning Appeals Commission hearings, and there is something that I have always found strange about them, particularly when I consider the bit in the submission about the Bill’s omission of a provision on costs. Sometimes, applicants bring evidence late in the day that the commission will consider. I have always founds that strange, because that can actually change a decision.

1318. I sat in on a recent case where that happened. If the evidence had not been allowed, it would be fair to say that the Planning Appeals Commission would have found in favour of the Planning Service. However, the late submission was allowed and accepted, and it actually changed the decision. Nevertheless, I welcome your suggestion about a provision on costs, because I think that that would be a very useful tool. It would prevent some cases from going to the PAC and would prevent the Planning Service from pushing people to that expense and prolonging applications. The only bit that worries me is that late submissions are sometimes accepted.

1319. The Chairperson: We can only use our own experiences as examples. In one case, an application was turned down because of a lack of integration. However, by the time the appeal came round and we went out to look at the site, the site had been substantially changed. I am only using that as an example.

1320. What are saying is that we want to have a process where applications are properly assessed. Obviously, the Planning Appeals Commission goes through that process and does that body of work. However, I do not want it to be an exercise where people present evidence but do not actually get an opportunity to present a strong and robust challenge to the system in the proper way. It comes back to the third-party right-of-appeal issue. That is all that I am saying.

1321. Mrs M Campbell: Certainly, commissioners are trained to be investigators, and they play that role. They do not merely sit and listen to evidence. Rather, they investigate the evidence and pursue the issues with all parties involved in an appeal. They then apply their expertise and experience to the issues presented in the appeal and make a judgement after having gathered all the information, including their own input. We want to ensure that that system is as rigorous as possible.

1322. The Chairperson: That is fine, Marie. However, we, as public representatives, want to ensure that applicants are being properly represented by those whom they pay to represent them. In the past, we have seen exactly what representation people are getting. People are going down the road of appeals, which costs them a substantial amount of money. We need to look at that as part of the whole process.

1323. If the Department were to assign the process to the Planning Appeals Commission, would you have the capacity to deal with that?

1324. Mrs M Campbell: We should be able to deal with it. We are currently dealing with three development plans — Belfast, Magherafelt and Banbridge — and are just about to start work on the northern area plan. That is a fairly significant involvement from commissioners. We are also attempting to process six major planning applications throughout the year. However, a number of those have been delayed, primarily because either the applicant or the Department is simply not ready to go ahead. A lot of the applications are getting bogged down by the need to provide further environmental information. When we start to process those applications, we find that they are being continually delayed.

1325. The Chairperson: I would like your view — and I am not asking whether it is your personal opinion — on where we are with existing local developments plans. How will they impact on councils over the next three or four years when it comes to considering the whole notion of local policies, planning policy statements, development plans and the regional development strategy, as well as what is actually best for communities, what the councils’ input will be and what local communities wants? Where does that sit with the existing plans and the plans that you are looking at?

1326. Mrs M Campbell: Once we have reported to the Department on the plans that we are looking at, it will go through the process of adopting those plans. Once adopted, a plan will be the plan for an area until it is replaced by another plan.

1327. The Chairperson: I understand the process. What I am saying is that we are going down the route of spending money now to adopt a plan that could be in next year or the year after, and then once the powers transfer to councils, they are operating in two years’ time and they look and they go. Then there is a period of time, obviously, when they cannot review it. I would like your opinion on that.

1328. Mrs M Campbell: We will look at the statutory provisions. There is still provision that, in determining planning applications, account must be taken of the development plan and all other material considerations, which is the policy. That provision will apply to councils as it applies to the Planning Appeals Commission in determining appeals.

1329. The Chairperson: Most of those who have responded to the Committee raised that as a problem. It is fine saying that you look to the regional development strategy, area plans and bottom-up planning policy statements, but that issue has been raised and we may need to look at it.

1330. Obviously, do you see the need for the Department to appoint independent —

1331. Mrs M Campbell: No, we do not see a need for that. We suggest that the commission should continue to do that. There are alternatives to appointment by the Department of the Environment, such as appointment through the Office of the First Minister and deputy First Minister to work to the commission. There is precedent for that. It would, in effect, be appointment by the commission almost, more or less, through OFMDFM.

1332. Mr T Clarke: I share the commission’s opinion. I am struggling to understand why the Department would want to appoint someone, and I can see the problems that it would create. Can you see why the Department wants to do that?

1333. Mrs M Campbell: I have not had detailed discussions with the Department about it. However, I have certainly had hints that it is due to a resources issue in the commission that might relate to the position a couple of years ago when we were dealing with a large number of development plans and a large backlog of appeals. That backlog has now been cleared, the development plans will be delivered shortly and I am confident that the commission has the resources to deal with development plans and major planning applications. If the resources are not in place when matters are referred to the commission, it should be able to acquire them. For example, the commission has part-time panel commissioners who also work for the Planning Inspectorate in England, An Bord Pleanála in the South and the Directorate for Planning and Environmental Appeals in Scotland.

1334. Mr W Clarke: Is the point about the planning obligations for the developer — presenting those draft obligations — in regard to temporary sewerage and road infrastructure or flood-prevention measures?

1335. Mrs M Campbell: Many of those issues can be covered by conditions attached to a planning approval. You would need planning agreements or planning obligations. The main difference is that a planning agreement must be an agreement that is reached between two parties, which takes time to negotiate, while a planning obligation is a unilateral — [Inaudible due to mobile phone interference.] — this is how I propose to contribute to education in the area, those kinds of things. That cannot be covered by a planning condition, because it is not sufficiently related to the development.

1336. Mr W Clarke: Dead on; thanks for that. My other point relates to the awarding of costs for unreasonable behaviour. Is that where there is no planning policy and you are bringing a case that you have no chance of winning? Is that what you are saying? It is my experience as a councillor that a lot of stuff is sent in your direction when there is not a hope in hell of it being successful, and that certainly clogs up the system.

1337. Mrs M Campbell: That is true. It there is clearly not a hope in hell of it being successful, that might justify an award of costs. Applications for costs in England and Wales are where there has been unreasonable behaviour and unnecessary expense.

1338. The best example is where someone who is pursuing a very extensive application involving, say, housing, shopping and industry and there is a lot of objection to the shopping aspect of it. They pursue it right until the very last minute and then, at the very last minute, when everyone has prepared objections and appointed consultants to deal with the shopping aspect, they withdraw it. That would be unreasonable behaviour leading to unnecessary expense. They could have withdrawn at a much earlier stage in the process.

1339. It could also apply in instances where the planning authority suddenly decides at the last minute that it had better have a land contamination survey, when it has not been mentioned before. If it were an issue, it should have been mentioned before. It works both ways, and if the planning authority introduces an additional reason for refusal at a late stage.

1340. It is all about parties revealing their hands earlier in the process, rather than trying to wait tactically to try to catch out the other person. Planning appeals do not work like that anyway. They are about gathering the information and making a decision. Tactics do not really work because we have to find the information anyway.

1341. Mr W Clarke: Dead on. Thank you.

1342. Mr T Clarke: Is it not more than that? Those are very extreme examples. Most of us have experience of where planners try to make a decision at an early stage that they do not want a particular application to succeed. It may be something more minor, a house, a bungalow or whatever it might be, and the Planning Service puts the applicant to the expense of going to the PAC. I have seen that often, and I am sure that other members have seen it in council. Perhaps the majority of people withdraw, but a stubborn applicant will decide that he will go ahead because he has the money to pay an architect the £2,500 or £3,500 to get it to PAC. The figures are sometimes staggering. Many of the appeals are won. Planning Service deliberately pushes people right to the wire to get them to withdraw or to see how many of them are prepared to go to the PAC. You have outlined very extreme cases where huge amounts of money are involved, but other people are put in an invidious position where they have to put up their money to take the challenge.

1343. I enjoy seeing the figures from the PAC. At certain times of the year, you can have a third of decisions being overturned, which suggests that the Planning Service does not necessarily make the right decisions. If there were more checks and balances, your workload would probably be less.

1344. Ms M Campbell: I used the extreme examples to illustrate where costs can arise. They apply where there has been unreasonable behaviour and unnecessary expense. That is the way they are assessed. The figure of appeals allowed runs at about 30% to 33%, which is commensurate with the figure in England and Wales. It is around about the same there. There have been times when it has been higher, depending on policy issues.

1345. Costs are not usually awarded simply because the Department is unsuccessful in determining an appeal. It has to be unnecessary expense, as a result of unreasonable behaviour. It is not a pure winner-takes-all situation.

1346. Mr T Clarke: It should be.

1347. Ms M Campbell: Well, that is a point of view. I am just saying what is the system in England, and that is the system I advocate here.

1348. The Chairperson: It still brings us back to the agent issue. There are more issues to be brought forward there. It is ridiculous that we have not dealt with that at all in this Bill. Some of the applications being put in have been absolutely ridiculous.

1349. Mrs M Campbell: I will allow you to take that up with the agents.

1350. The Chairperson: Having better agents obviously means less work for you. Thank you very much for your presentation. We will now take oral evidence from Laverne Bell of the Quarry Products Assocation (QPA). You are very welcome. You have been before the Committee on a number of occasions, so you know the process.

1351. Ms Laverne Bell (Quarry Products Association (Northern Ireland) Limited): On behalf of our members, thank you for giving QPA the opportunity to respond to the Planning Bill. Planning is vital to our industry, so we are very interested in the transfer of powers to councils. Our industry has a part to play in helping to deliver planning reform by submitting high-quality applications informed by community views. As I go through the clauses that we comment on, I will be optimistic about adding in the after-uses of quarry applications. Given the number of clauses, I will only deal with the key areas of concern to the minerals industry.

1352. There should be a definition of “sustainable development". We have seen that in many Departments, in council strategies and even in the industry’s own strategies. Some people have different definitions, and that should be added to the interpretation section of the Bill. The definition in the Government’s sustainable development strategy could be used.

1353. Clauses 6 to 22 relate to local development plans. We are concerned that local development plans do not include minerals or their safeguarding. We spoke to the Committee before about a minerals mapping programme for Northern Ireland, to analyse supply and demand, and zoning to safeguard minerals. Areas have been zoned as areas of no constraint in previous local development plans. That did not look at where our future minerals supply will come from.

1354. We are pleased to note that a minerals mapping programme is listed as an environmental programme in the DOE budget. However, we are concerned that funding has not been secured for that. We will make the same point at the regional development strategy review. We suggest that an amendment be made for mineral mapping and safeguarding to be included in each council’s local development plan. It would also be beneficial for neighbouring district councils to work together on local development plans.

1355. We support clause 27 and clause 28 but ask for a definition of “community", because it can sometimes be difficult to identify who the defined community is. That should be in the interpretation section of the Bill. Under clause 32, there are no permitted development rights for the minerals industry in the general development order. We have reported on previous consultations on this. We would like assurances that that will be in the Bill.

1356. I turn to planning applications. In clause 40, there is no mention of performance agreements and pre-application discussions. That is a core element of planning reform and something we supported in the consultation paper. Performance agreements should be in place before submission of an application. That is a central part of pre-application discussions. Again, that is down to the front-loading of the development management system. We suggest that performance agreements alongside pre-application discussions for major and regionally significant projects be included in the Bill.

1357. On determination of planning applications, we have commented under clause 45 and clause 52 on conditions that are applied to planning approvals. We have brought that up with the Planning Service before. We believe that it would be good practice for the Department and councils or the planning authority initiate a practice of informing developers or agents of the draft planning conditions that are imposed before they stamp and approve the forms. That practice would be beneficial to the industry and to the Department and councils in processing mineral planning applications, as it would highlight any unworkable conditions before the decision notice is issued.

1358. We have evidence of industry having permissions approved with unworkable conditions. Asphalt plants have been given approval with conditions of working hours of 7.00 am to 7.00 pm. You will be aware that that is not commercially viable for the industry. An asphalt plant would possibly have to open at 5.00 am for lorries to be going out the gate at 7.00 am. Those conditions have sometimes been applied as a mistake by a planning officer. It is difficult for a client to go back and take it out. In some cases, the company might just decide to leave it there. Therefore, we are suggesting a clause to provide that the Department or councils consult the developer on conditions prior to planning approval. However, we recognise that the planning authority is the decision-maker.

1359. On clause 53, with deals with the power to impose aftercare conditions on the grant of mineral planning permission, I will give you a few paragraphs to back my suggestion that nature conservation be added. The three stated aftercare conditions in the current legislation and in this Bill relate to agriculture, forestry and amenity. I am proposing that nature conservation should certainly be added either alongside amenity or as a fourth aftercare condition.

1360. I am sure that you are all aware of the significant opportunities that this industry can give in creating new habitats and protection of species. The industry is doing that, and it has been put forward in restoration objectives, but there is an opportunity to have it in legislation. Therefore, I have suggested that nature conservation be added as a fourth aftercare condition, and that a definition of nature conservation be added to the interpretation provisions. We believe that the developer should take advice, whether from the Department of Agriculture, the Forest Service, the Environment Agency, councils or a relevant NGO on such matters under those aftercare conditions. Again, we are looking at local priorities in those areas. In clauses 53 to 55, on restoration and aftercare, steps may be specified in aftercare conditions. Again, a natural succession is regeneration. It is an opportunity to create biodiverse habitats on site. That should be added.

1361. We have comments on duration of planning permission. Again, the comments on the clauses relate to changes in permissions, conditions or modifications. We have stated that if any changes are made, it should be done in consultation with the developer. If any conditions are made in error by the planning authorities, there should be no fee to change them because that is their mistake. We raise again the issue of consultation prior to approval of imposing conditions.

1362. The review of old minerals permissions is included in the Bill. We have read through both schedules, and we are content that it is what has been communicated to us. However, our concern is that there is no mention of the timescale for delivery.

1363. We support increased fees and charges for respective planning permissions, but we question what is meant by “a multiple of the charge or fee".

1364. In respect of the duty to respond to consultation, we feel that statutory consultees should be required to respond to planning authorities within a specified time frame. Any extension to the time frame should be agreed with the applicant. This has caused our industry significant delays in the planning system, and we responded to the matter in the previous consultation. We suggest an amendment to the Bill to set a specified time frame of 21 days for comment. We are content with the guiding principles in clause 225, which relates to minerals.

1365. The Chairperson: OK. Thank you very much. You suggested a time frame of 21 days. Would that be for all applications? On some of the major application, would you expect statutory consultees to respond within that time frame?

1366. Ms L Bell: We feel that with pre-application discussions, the industry will be front-loading the system. Any reports to be carried out will be done with the application, and, if there is an issue, the operator will be notified and a new time frame agreed. However, experience within the industry shows that planning officers might wait for months for statutory consultees to come back. Sometimes, their applications are sitting in somebody’s in-tray, and, regardless of whether a response is made, they are put back to the consultees and there is a specified time frame for them to respond.

1367. The Chairperson: OK. Thank you. You said that minerals should be looked at in terms of the local development plans. In the absence of mineral mapping and identification, are you suggesting that councils or council clusters should look at that?

1368. Ms L Bell: Yes, indeed. It is about the geology of the minerals and the location. Therefore, they are of interest in council boundaries. It has not been considered before in local development plans, and it is something that the industry feels very strongly about.

1369. The Chairperson: OK. What about PPS 19?

1370. Ms L Bell: PPS 19 should be published in advance of this.

1371. The Chairperson: You talked about conditions, and I just want to clarify a point about aftercare conditions. Many sites are not properly maintained, and I would look at the nature conservation. You asked for guidelines on the conditions of planning approval. Is it not standard practice to consult the developer on the conditions prior to planning approval?

1372. Ms L Bell: No. I spoke to my affiliate agents in the association about that, and they said that it is not standard practice. Article 31 applications are dealt with by a notice of opinion indicating that the Department proposes to grant or refuse planning permission. A similar procedure could be recognised in the Bill.

1373. The Chairperson: If you have received approval for a house, you must comply with where it goes and different things, although there may be a wee bit of scope. However, if you apply to extract minerals, are you just given an area and that is it? Are there no conditions? Are the conditions or some guidance not clearly outlined in the planning approval?

1374. Mr T Clarke: What Laverne is saying is about the time when you can expect to get those.

1375. Ms L Bell: The Department has a set list of model conditions that it uses and applies. Approvals are set with a number of conditions, and aftercare, for instance, is one of them. However, there are conditions that we see as unworkable; for example, a time condition. It may not have been raised as an issue in the pre-application discussion by the community or the environmental health officers, but the condition may have gone ahead.

1376. The Chairperson: Thank you. I was just seeking clarity.

1377. Mr T Clarke: Although it is the same for any application — obviously, mineral extraction is different — are they not all article 31 applications?

1378. Ms L Bell: Some are pulled in under article 31, but others could be extension to plant or smaller areas.

1379. The Chairperson: Clearly, that is the problem, because of the policy.

1380. Mr T Clarke: If that were changed, the danger is that it would slow down the process again, because the authority would be going back out to consult the applicant again. If you did it for them, you would have to do it for private dwellings as well, because they come under the same category.

1381. The Chairperson: Yes, but Laverne is talking about the list of consultees and the response, and that all of that should be included in the discussions — the pre-application discussions in particular.

1382. Ms L Bell: Yes, in that process. However, it is the case where it has gone through without any issue of using the time one. Then, when the operator receives his approval and an unworkable condition is listed, the agent will have to go back through the legislation process to get that condition taken off.

1383. The Chairperson: That is fine.

1384. Mr W Clarke: Is the time condition coming from the councils’ environmental health perspective in relation to the noise and stuff like that? Where is that coming from?

1385. Ms L Bell: From my knowledge, the planners have a set list of model conditions, and the time one — from 7.00 am to 7.00 pm — is one of those model conditions. Sometimes, that can be applied.

1386. The Chairperson: You have mentioned the statutory consultees, and we will look at that area. Thank you.

Committee suspended.

On resuming —

1387. The Chairperson: We will now receive a briefing from the Royal Town Planning Institute (RTPI). I welcome Diana Thompson and David Worthington.

1388. Ms Diana Thompson (Royal Town Planning Institute): Good afternoon, and thank you for facilitating our request to provide further evidence in support of the Royal Town Planning Institute’s written observations on the Planning Bill. I am the incoming chair of the local branch of the institute. With me is David Worthington, who is a past chair and a current member of our policy and practice committee, which meets quarterly at our London headquarters.

1389. I will deliver the principal presentation, and, following that, David will assist me on any points of clarification or additional information that the Committee may seek.

1390. You probably know that the RTPI is the leading professional body for spatial planners in the United Kingdom. We are a charitable organisation that has the purpose of developing the art and science of town planning for the benefit of the public as a whole. We have over 20,000 members, 500 of whom reside in Northern Ireland. They are drawn from the Planning Service, local government, the public sector, the community and voluntary sector, and the private sector. The reforms are of great interest to our members, who work in and use the system on a daily basis.

1391. As a general proposition, the RTPI supports the reform of the planning system in Northern Ireland and the devolution of planning powers to the lowest level of government. On the whole, we welcome the Bill. Rather than repeat the content of our written response, however, we want to use our time this afternoon to explain in more detail our main concerns with the Bill as it is presently drafted.

1392. We have identified four topics to discuss: the acceleration of the process and its consequences; whether the reform will be adequately resourced; the timing of an introduction of the plan-led system; and the role of the Department. The Committee will also be aware that the RTPI is taking part in the stakeholder event tomorrow, when we will address three of the four topics that you have invited some comments on.

1393. As we indicated in our submission, we are uncomfortable about the Bill’s being launched in the mouth of the Christmas break. We are also uncomfortable about the Bill’s anticipated expedited passage in the Assembly’s current term. The Bill is a complex document, and our members are concerned that the amount of time that has been set aside for its scrutiny, particularly at Committee Stage, could well be construed as an underestimation of its intricacy and of its importance for the future of Northern Ireland. That said, the institute fully appreciates the need to reform the planning system in Northern Ireland. Reform is overdue, and we support the current impetus and enthusiasm for delivering positive change to the system.

1394. It is unfortunate, however, that the timetable appears to be dictated by the looming dissolution of the Assembly in the spring. The institute supports openness and transparency in the process and is keen to avoid any perception that the acceleration will undermine meaningful consultation with the planning profession. We do not want the acceleration to result in an underdeveloped framework that stymies, rather than stimulates, sustainable economic growth and that lacks public confidence.

1395. There are two particular issues of concern. The first is the reliance on much subordinate legislation and many other regulations to give effect to the proposed reforms. We do not see any commitment to their production and content or to a timetable for implementation. Our legal associates, who are also members of the institute, tell us that the detail may well be unworkable in our particularly litigious environment. They raised concerns about how the drafting will stand up to scrutiny. They urge that careful attention be paid to the final drafting and wording of clauses.

1396. Secondly, it is far from clear how or through what mechanisms the new legislation will be delivered by newly created planning authorities. There seems to be a lack of integration between the planning reform and the parallel reform of local government and the transitional arrangements. In our view, the Committee must seek clarification on both points from the Minister.

1397. Our second topic is about resourcing the reform. Our members have highlighted the need for the reform to be adequately resourced. The issue is not just the financial consideration; it raises personnel and staffing issues, as well as the capacity of councillors to embrace the full suite of planning powers that are to be devolved.

1398. As far as the training and education of councillors is concerned, the RTPI can provide significant assistance and can offer links to other councillors in the UK through our politicians in the planning association, which is administrated through our headquarters. We are keen to take a proactive and participatory role in the development of professional training sessions for planners and councillors, and we intend to raise the matter directly with the Minister in the near future.

1399. It is clear to us that the proposals will require major cultural change and additional funding. The institute fully understands the budgetary pressures that are on the Department, given the significant fall that there has been in application receipts over the past 18 months. For that reason, we accept that it is necessary that a review of planning fees takes place. However, we were disappointed that the consultation paper that emerged late last year did not contain a comprehensive overhaul of fees and that wider funding issues remain for future consultation. The institute has already warned that planning fees should not be the sole source of funding and that there must be a public funding base that might come through rates, for example. We think that the review should be completed swiftly so that a situation of certainty and stability in the planning profession and the wider development industry can be created. In the meantime, we are certain that the Department must keep a balanced view of efficiency savings, the maintenance of a professional and fit-for-purpose service and the ability of a development management to levy fees to match costs without jeopardising the potential for economic recovery. If fees are to be increased, our members are certain that that must be matched by a quality service for its customers and a service that supports economic recovery.

1400. The institute has another concern in that area because of the loss of professional expertise in the Planning Service through redeployment and the very recent announcement on potential future redundancies. The institute is already on the record as having made the point, and we would like to restate it, that it is anxious that the haemorrhaging of the professional planners carries significant risks for the operation of the planning system in Northern Ireland. It has inevitable consequences for the delivery of the priorities of the Northern Ireland Executive and the Programme for Government. The Committee must seek assurances from the Minister that individuals who exercise planning powers are properly trained, that all units and functions of the new planning hierarchy in Northern Ireland are adequately staffed by professional and administrative staff, and that there is adequate funding that does not rely on receipts that come from applications or other revenues that are generated solely by the system’s users.

1401. The issue of resourcing takes us to our third point, which is to do with the timing and introduction of the plan-led system. We note that there is some inconsistency between clause 3 and clause 25. One requires the Department to take decisions in accordance with the plan, and the other requires the council to have regard to the development plan. The Committee will be aware that previous resourcing difficulties in combination with the external judicial proceedings have meant that preparatory work on updating and renewing development plans has largely ceased. The consequence is that, from 1 January 2011, we have only one up-to-date area plan that covers the two district councils of Ards and Down. That is about 8% of Northern Ireland, compared to about 19% of local plan coverage in England. The Department for Environment, Food and Rural Affairs has strongly criticised that figure.

1402. It would be unfair and inequitable to expect newly formed local councils to take decisions on the basis of planning frameworks that were, in some cases, prepared almost 20 years ago in economic and other circumstances that were very different to those than exist today. Although the institute supports the introduction of the plan-led system, we are certain that its introduction must be held back to allow the new generation of local plans to be rolled out.

1403. Our views are reinforced by the lack of detail on the new community planning framework that is also proposed. It seems to us that there are a number of unresolved issues with it, including the definition and identification of community; how it interrelates with the other elements of the area plan framework; how conflict is to be reconciled when policies pull in opposite directions; and how community plans will be timed and sequenced against the delivery of local plans. We consider that the presumption in favour of development should remain in the interim, although assurances must be sought from the Minister that the new suite of plans will be expedited following the devolution of planning powers.

1404. We also wonder about the role of and relationship with the emerging regional development strategy review, which sits at the top tier of the policy hierarchy. The RDS was material to decisions on individual planning applications and appeals, but at draft and adopted stage, the area plans have a statutory requirement to be in general conformity with the RDS. However, that statutory requirement appears to be diminished in the Bill. We can find only two references to the RDS in the Bill. The first requires policy to be “in general conformity" with it, and the second requires local development plans to “take account of" the RDS. It seems to us that there is some uncertainty regarding the status of the RDS. Indeed, the 10-year review of the RDS confirms that the statutory requirement is under review. The Committee must seek clarity on the role of the RDS, because, without a clear strategic vision and guide, there is the potential for local authorities to focus solely on their own agendas, which will lead inevitably to long-term bad delivery and cause difficulties with balanced delivery.

1405. Our final point relates to the Department’s role. We understand the need to retain some degree of control and oversight of the delivery of planning functions in Northern Ireland. However, our members feel that the Bill is drafted in an overcautious and inflexible manner that will deprive local authorities of the ability to freely exercise their planning functions. We urge the Committee to challenge those areas of unchecked and unnecessary departmental intervention, which must inevitably result in the duplication of manpower and resources.

1406. The Bill provides for much departmental involvement in the area plan, for example, with its statement of community involvement, a timetable for review, the terms of such a review, or the revision to the plan. The Bill also allows the Department to prescribe the form and content of the plan and to refer it for independent examination. There is also provision for the Department to consider the independent report that comes back from the examiner.

1407. It seems to us that the checks and balances that are built in through the intervention and default powers in clauses 15 and 16 are adequate to safeguard the Department’s position. We consider there to be significant replication between the development control and management function in the powers provided in clauses 26 and 29. It may well be that there is a timing problem between the Department’s determination for a proposal that is regionally significant or a major application. That would have a knock-on, delaying effect for the commencement of the 12-week consultation period. That must also frustrate development ambitions.

1408. However, we support the schemes of delegation, which mirror the existing streamlined arrangements in the Planning Service. In fact, the Planning Service won an award with the RTPI in London. We are keen to see those arrangements retained in the new planning framework.

1409. We welcome the proposals for the Department to set performance targets for local authorities. However, that must be about much more than naming and shaming. There must be some financial sanction for those councils that fail to determine their applications and to deliver their planning functions in a timely manner. In the same way, authorities that consistently achieve their targets must be rewarded. We consider such carrot-and-stick mechanisms to be enormously important in securing responsiveness, speed, simplicity and, most of all, deliverability. Those are important characteristics that ensure the professionalisation of the system.

1410. To sum up, the RTPI welcomes reform. However, it seeks clarification, assurances and revisions on a number of aspects of the Bill, including the production of subordinate legislation; integration with the parallel local government reform; adequacy of resources; prompt roll-out of the new generation of area plans; and departmental intervention powers, which should be considered and appropriate.

1411. We look forward to continuing our dialogue with the Department, Minister and Committee as this important legislation emerges.

1412. The Chairperson: Thank you very much. You are very welcome here. I will just pick up on a few points. You mentioned retraining for agents. Many councillors or former councillors are MLAs. I have sat on a council myself, and I know that some of the applications that we had to decide on were unbelievable. Ordinary architects who knew nothing about policy were putting in an application on behalf of somebody who may as well have done it themselves. Is there any scope in the Bill, or anything that we could consider including in it, regarding guidelines on advice? I will not say that someone would have to have a qualification, but I want to ensure that the people giving advice on applications have the appropriate training, rather than people asking someone for advice just because they have a whole load of letters after their name.

1413. Ms Thompson: That is a big question. You are asking how planning can become more professional, and the RTPI would like to see only people with professional qualifications and chartered members of the RTPI giving planning advice. It is difficult to control because every man and his dog thinks that they are planning experts.

1414. The Chairperson: We are well aware of what we are proposing to transfer and how difficult that is going to be and that there is a need for a transition period. You talked about capacity building, in which you have a degree of expertise. It is a major training programme; how do you see your role in it?

1415. Ms Christie: We have run some councillor training programmes in the past; in 2009, when it looked like the RPA was kicking off, we engaged with NILGA in particular. It will be a matter of picking that up again and, hopefully, rolling out some sort of training programme.

1416. The Chairperson: It comes down to resources again. It cannot be all fees-based; you mentioned it being rates-based as well. I would like to tease that out a wee bit, because, as public representatives, we will have to answer to ratepayers on that. Leaving area plans aside, if we take the likes of development controls, which is now development management, how would you manage the fee structure for that side of it? How does it operate in other jurisdictions?

1417. Mr David Worthington (Royal Town Planning Institute): Very few councils across the water manage to operate their planning system with a funding level that is made up of more than 50% of charged fees. For most local authorities in England, the fee level that they are able to recoup counts for less than 50% of the actual running costs of the planning departments. That was something that the outgoing chairperson of the branch found out as part of the overall cost exercise that we and the Department were engaged in over the summer, when it became clear that members of staff were going to be relocated.

1418. Ms Thompson: The Committee might also be aware of a report that has been commissioned by the Planning Advisory Service in England regarding the subsidisation of planning departments, ‘Where does all the money go?’ We can circulate copies of that to the Committee. It basically comes to the conclusion that it should not all be generated through application receipts because it is a public service, so there should be some sort of public money funding it.

1419. The Chairperson: It is a public service, but when it comes down to the finances, you have to look at it from a business plan point of view. On numerous occasions, we asked about the planning model, because councils will need it, but it has not come to us yet. If you were developing a business plan in the private sector, you would develop your plan and decide the number of people you need on a value-for-money basis. The problem is that we tend to forget that it is a public service.

1420. Mr Worthington: A manpower plan based on projected staffing levels against potential application receipts is essential. When the review of fees came out, we were concerned that those two things were not allied to the manpower review.

1421. The Chairperson: Perhaps we should say people power.

1422. I agree, and we have asked for the model. There was a time when applications were coming in and things were good in the Planning Service, and I can assure you that all the fees that were gained did not just go into the model or to cover staff costs; the amount of fees was well above that. Those fees went to the Treasury or somewhere else. We have to get a proper model in place.

1423. Mr Worthington: The Planning Advisory Service report might be of assistance with that.

1424. The Chairperson: We heard about the accelerated time frame, and we know that there is a good body of work to be done. We also know that we have an opportunity to change things during the clause-by-clause scrutiny. The devil is in the detail. You mentioned subordinate legislation, and we need to look at that. In addition, we were thinking of looking at a review period.

1425. Ms Thompson: Various parts of the Bill refer to regulations. What will those regulations say? When will we get a chance to comment on them? A lot of this is reliant on something else.

1426. Mr Worthington: A lot of the nuts and bolts of it do not work without subordinate legislation.

1427. The Chairperson: There is no doubt about that. You also touched on reorganisation and reform. Obviously, the Bill will not be implemented in any shape or form until proper governance arrangements are transferred, and that is fair enough. However, it has to run in conjunction with community planning, which I want to discuss now. Diana, you said that there should be more reference to the RDS. On the other hand, you talked about councils having their own agenda and about the Department’s analysis. It is about combining all those parts.

1428. I want to ask you about the statement of community involvement, which will be important. Who and what will be involved in community participation? Will you comment on how we should deal with the community issue?

1429. Ms Thompson: We talked about that with our policy officer. I do not know whether the Committee will remember, but an organisation called Planning Aid, which is equivalent to legal aid, used to operate in Northern Ireland. There were resourcing difficulties with it and it has been dormant for a number of years, but we think that this might be a real opportunity for Planning Aid to come back to Northern Ireland. The system is set up and well developed in England, and it can work with communities to help them to become involved in planning processes. As a branch, we will be exploring whether that is a possible way to support communities.

1430. The Chairperson: Our system works on planning policy statements, area plans and regional development strategies. Indeed, there is a suite of planning policy statements; we might have 100 of them by the end of this mandate.

1431. Ms Thompson: They are being produced fast and furiously.

1432. The Chairperson: You talked about area plans, and we cannot forget that a body of work has been done on them. Good work has been done and resources have been spent. My problem is that that work might be wasted. What do you see happening if planning at council level is implemented in two years’ time? As you said, councils might have a different view on planning matters.

1433. Ms Thompson: There is no doubt that those with the PAC must be adopted. It would be an outrage for all that work and expense just to be scrapped. It is important that those are concluded and become an interim guide for development in different areas. It is more a case of trying to get areas such as Omagh or Strabane on track; areas where the area plans are a number of years out of date. The development plan framework is particularly suffering in areas west of the Bann.

1434. The Chairperson: Armagh, too.

1435. Ms Thompson: Absolutely.

1436. The Chairperson: I will put in a plug for Armagh as well. Do any members have questions? You are all very quiet today. We propose to ask the Department to respond to the questions and ideas from you and the other respondents. We will try to get those responses fairly quickly.

1437. Ms Thompson: It might be helpful if we sent our speaking notes. That would cover everything that we said.

1438. The Chairperson: The document that I have is very good, but you can send the notes also. With regard to the timing, we have a process to go through. That was accepted in the Chamber, and I as Chairperson of the Committee accepted that. There has been some good work but subordinate legislation and capacity building are key, as is a review of the transition period and roll-out. You have a big role to play. However, I come back to the issue of agents, and I make no apologies for that. That has to be part of this process.

1439. Mr Worthington: The design and access statements and the community consultation exercises for the more major applications will obviously raise standards. It is a question of whether something needs to be built in on the lower levels.

1440. The Chairperson: The issue is not about just land use; it should also be based on community need.

1441. Mr T Clarke: We seem to concentrate on the higher levels. If I am picking correctly up on what the Chairperson is saying, the problem is that agents sometimes submit applications knowing fine well that they do not have any merit. We need to go from the bottom up.

1442. Ms Thompson: There does need to be a sea change. It should be a bit like being a doctor, in that you cannot practise unless you are professionally qualified. Ideally, that is how the planning profession should be.

1443. Mr T Clarke: You did not suggest that in your submission.

1444. Ms Thompson: As an institute, there are trade union issues that are very difficult for the institute to take a view on.

1445. Mr T Clarke: It would be easier for us if that suggestion came from a body such as yours, as opposed to from us. We are only prejudging what we see on the ground, whereas your institute represents a body of people. A recommendation such as that coming from you would probably be more persuasive.

1446. The Chairperson: I know that there are issues. We have experience on the ground and that is all part of the process. We could outline specific details. All that I am saying to you is that that aspect has to be looked at if we are to get this right.

1447. Mr Worthington: We need to bear in mind that, at the moment, we operate a system that has a presumption in favour of development.

1448. The Chairperson: There is no harm in that, David.

1449. Mr Worthington: I know but —

1450. The Chairperson: As someone from a rural constituency, I definitely do not see any harm in that. However, I agree with you.

1451. Mr Worthington: That means that there is less certainty in the system. You cannot say for definite that an application will be refused. Well, you can but —

1452. Mr T Clarke: You can; that is the problem.

1453. Mr Worthington: It is quite difficult to say that. I have advised people that things will be refused and they were not.

1454. The Chairperson: I know the feeling.

1455. Mr Worthington: My point is that when we move to a plan-led system, it will introduce a lot more certainty because the plan sets out what is approvable and what is not. So, you may find that that helps to ease some of the —

1456. The Chairperson: I suppose that that could be undermined in some ways by a suite of planning policy statements. Do not get me wrong; I am just saying that there are challenges to that system too.

1457. Mr Worthington: There is a need for the planning policy statements to be condensed and made more straightforward, and to try to stop them from pulling against each other, as some do.

1458. The Chairperson: Once we have 100 planning policy statements, we will need to condense them to about 25. You indicated that most of this will come back to the Department, and we spoke about the independent examination of planning appeals. We will go through this body of work, front-load the system and try to develop a plan. However, it could be a case of everyone wanting their own way, so some check needs to be in place. How do you feel about plans being sent for independent examination and then going back to the Department?

1459. Ms Thompson: That will be another layer of bureaucracy and potential judicial review. Some canny solicitor could ask why the Department agreed with something when the PAC did not and the council did something else.

1460. The Chairperson: That is fine, we are scrutinising the Bill and must record that view. We need to look at this and see how things will materialise.

1461. Mr W Clarke: Thank you for your excellent presentation. On the issue of capacity building, a broad range of people will need to be retrained, including elected members, council staff and planners. It will be a culture shock for all of them. That is particularly the case with spatial planning and bringing the different statutory agencies on board. What are your thoughts on the pilot schemes that were announced by the Minister? Are you involved in their roll-out? Will you provide training courses for councillors on spatial planning and the planning process?

1462. Mr Worthington: We were present when the Minister proposed those pilot schemes, but I am unsure as to whether we will be involved in their roll-out. We think that they are a good idea, if they are workable with the legislation and do not end up creating more mayhem and more fees for solicitors.

1463. We intend to roll out a programme of training that is specifically tailored to councillors. At one point there was a suggestion that the Town and Country Planning Association would hold its annual conference in Northern Ireland. As RPA receded that was taken off the agenda, but it could be brought back on again and a programme of training could be worked out.

1464. Mr W Clarke: Obviously, there are clear lessons from what happened across the water in the area of planning reform. Do you see any comparisons between what happened there and what is happening here? Is there anything that we should do differently?

1465. Mr Worthington: The Localism Bill that is going through the House of Commons will bring in a planning system in England that is different to the one that we are working on. When the Localism Bill was first discussed, one of the key issues was the notion that communities would be allowed to define themselves. That would have produced inward-looking plans, but the Localism Bill as introduced provides that councils rather than communities should make that definition. We have a number of shared space initiatives here that encourage communities, particularly those in areas with a lot of peace lines, to look outwards, towards each other. It is important that communities here do not self-define but are defined by councils, to avoid inward-looking plans.

1466. The Chairperson: There is a serious need for capacity building and resources. I thank the witnesses for their presentation and I look forward to working with them again.

1467. The Chairperson: We move on to the oral evidence session from the Royal Institution of Chartered Surveyors (RICS). I welcome Ms Diana Fitzsimmons, Mr Bill Morrison, Mr Ben Collins and Mr Liam Dornan. You are all very welcome. Please give a presentation to the Committee and then I will open the meeting to questions from members.

1468. Mr Ben Collins (Royal Institution of Chartered Surveyors): I am the Northern Ireland director of RICS. I will say a few brief words of introduction, and then each of my three colleagues, all fellows of RICS, will make a brief contribution. We understand that we have 10 minutes to make a presentation at the start.

1469. The Chairperson: We will give you a wee bit more than that.

1470. Mr Collins: Thank you for giving us the opportunity to speak to you about the Planning Bill. RICS has a requirement to act in the public interest and provide advice to the Government of the day. We have 3,000 members who work across land, property and construction in this region, including all aspects of the planning process. Our oral evidence will be supplementary to the written evidence. It can also be made available in a written format should the Committee wish.

1471. As our written submission suggests, we are generally supportive of measures to devolve more planning responsibilities to councils. However, we will use this evidence session to highlight our concerns about implementation issues. Liam Dornan will deal with implications for councils, Diana Fitzsimmons will deal with development plans and third-party appeals, and Bill Morrison will deal with conservation areas and governance.

1472. Mr Liam Dornan (Royal Institution of Chartered Surveyors): I will touch briefly on a very important issue for local councils, which is capacity building in councils. This is quite a big move, when one thinks of the way in which planning was devolved to a separate Department. RICS recognises that there is a need to ensure sufficient capacity in central and local government to ensure that the reform of the Planning Service is delivered in an effective and efficient manner. To that end, we hope that staff in the new planning services in central government and local authorities will be provided with sufficient resources. RICS has offered the Department assistance with training, and Minister Poots said during Question Time that he would welcome that.

1473. We welcome and support the inclusion of a statutory duty in the exercising of planning functions. We encourage the Committee to impress on the Minister the importance of sustainable development and the need for councils to comply with the spirit of the legislation. RICS recognises that councils, in their statutory functions and daily business, strive for sustainable solutions for development in their areas, especially when building new facilities for the public in their area.

1474. Clause 18 concerns the power of the Department to direct councils to prepare joint plans. RICS has concerns about councils being directed to work on joint plans in that fashion. We would welcome some kind of incentive to councils that decide, without direction by the Minister, to engage in the production of plans without intervention. A joint approach in some instances would be important, but councils coming together of their own volition would be better than their being directed by a third party.

1475. Clause 25 deals with the hierarchy of developments. There are still some issues to be clarified in that regard. The proposed legislation states that the Department can decide that a local development is a major development. Some elements of the criteria for those decisions are contained in clause 31. We need some clarification as to when the Minister can invoke that clause. This could be an issue with some of the local developments in our major cities, such as Derry, Belfast, Newry and Lisburn, depending on the size of the projects. It may undermine the workings of local authorities.

1476. Clause 26 deals with the definition of “regional significance". RICS has some concerns, as were described previously. It may bring the Minister and the council into conflict if the Minister or the Department suddenly decides that a local development is regionally significant and should, therefore, be looked after by central government and the Minister.

1477. Clause 27 deals with pre-application community consultation. That part of the Bill will place a duty on a council to consult with the local community. That is important if the local community is to have an input into development in an area, especially where regionally significant projects are concerned. The applicant is responsible for that consultation, and the RICS would like clarification on issues that deal with the definition of community. That includes how far that definition goes in the consultation and the breadth of the consultation that is required by the process. It is important for the developer to consult with the council on that so that the council can use its good services to maximise consultation with local people.

1478. Ms Diana Fitzsimmons (Royal Institution of Chartered Surveyors): I am a planning consultant and the office director of Turley Associates. We have about 100 applications with the strategic projects team in the Planning Service. Those applications are for regionally significant projects. We have another couple of hundred applications with the local divisional planning offices. I was formerly principal commissioner with the Planning Appeals Commission, so I have experience of conducting two development plan inquiries. Before that, I was an academic, and before that, I was a planner in the DOE’s Planning Service.

1479. The points that I want to make are about the proposed plan-making system and the fact that third-party appeals are lacking in the Bill.

1480. The RICS supports the fact that councils will be making local development plans, the two elements of those being the plan strategy and the local policies plan. It also supports the fact and that those two elements need to be consistent with each other. However, we have some issues about how quickly local councils will be able to do that. Obviously, the big issue is always timing and the timeliness of plan preparation, particularly in the context of a plan-led system, which the legislation will introduce.

1481. Developers and inward investors need a very predictable planning system, and that is very much part of the reform process. We agree that councils, in preparing their local development plans, must take account of regional policy and guidance from DOE, DRD and OFMDFM. They must also contribute to sustainable development. All those matters are in the Bill.

1482. As we are all aware, sustainable development is a term that has been defined differently by different people, so it is quite difficult to cover. The local development plan must also comply with any EU obligations. Therefore, it will not be an easy process for councils to carry out plan making, because they will have to listen to what people on the ground, or at the coalface, have to say while being in accordance with all the higher-up plans.

1483. Obviously, the Bill is very much the skeleton of the new development plan process. The Bill states that a lot of that will be developed further through development Orders and regulations, which will be the meat on the skeleton. It is very important that those Orders and regulations are issued as soon as possible so that we can see exactly what is required in the form and content of a plan, the consultation procedures, the content of a statement of community involvement, the plan review process and procedures. We should also be able to see exactly what is required in the content of an annual report on a plan, which the council will prepare. We do not see any of that detail in the legislation, so it is obviously for Orders and regulations to cover.

1484. We note that the DOE will retain extensive plan-making powers. You may want us to comment further on that. We think that that is probably OK at the moment, because it reflects nervousness in the Department about the councils’ ability to carry out those plans in a short time. That may change over time, and the Department of the Environment will hold fewer powers of direction.

1485. We are concerned that community planning is not mentioned in the Bill. It is the layer below the local development plan, and it will obviously be a non-statutory planning process. Given that practice in community planning differs right across England and Scotland, we are not quite sure what community planning is and what it will be about. We need to learn from best practice across the water. For example, who will prepare the community plan? Will it be an all-district community plan? What groups will be consulted in the process of preparing such a plan? We need to avoid community disillusionment with the public participation process, so we suggest that people are consulted once on both the local development plan and the community plan to avoid death by consultation.

1486. We believe that training for councillors and council officials is very important. It is important that the measures are not introduced until new councillors and their officials have received thorough training. That is because the system needs to be seen to be fair, impartial and open. It also needs to be seen to comply with all the regional planning policy statements and the regional development strategy. That is not an easy process to match up, as it is very much a balancing process. The RICS is happy to contribute to training councils.

1487. The PAC is the preferred vehicle for the examination of a plan, as it is well trained and has a track record of being open, fair and impartial. However, if there is a huge backlog of plans waiting for examination, we can see the merit of having a well-trained independent examiner.

1488. When it comes to making representations on the soundness of a plan, which is in the Bill, there should be an opportunity for those defending their interests against such a representation to be heard at the examination as well. However, I do not see that, which used to be called counter-objecting, in the legislation.

1489. Another issue to consider is the definition of the soundness of a plan. In England, the word “soundness" has caused a lot of problems for the Planning Inspectorate. In fact, it turned away the first two plans that were submitted to it for examination because they were not sound. We need to be careful that we do not get bogged down. Therefore, we need a definition of the word “soundness".

1490. Finally, third-party rights of appeal are not included in the legislation. The RICS has traditionally been against introducing third-party appeals on the grounds that they would further delay decisions on planning applications. However, if the Assembly is keen to introduce such appeals, it could learn a lot from the system in the Republic of Ireland, where such appeals can be made only by those who have objected in the first instance. The appeal has to be submitted within four weeks with a full supporting case. In practice, there are no oral hearings in the Republic of Ireland, so it is a very speedy system of appeal.

1491. Mr Bill Morrison (Royal Institution of Chartered Surveyors): By way of background, I am a planning consultant, as is Diana. Formerly, I was divisional planning manager for Downpatrick and Belfast, so I have a little bit of insight about both inside and outside the system.

1492. The Chairperson: Your name rings a bell.

1493. Mr Morrison: I want to make three points on behalf of the RICS. The first is a general point, the second is about conservation and is quite specific, and the third is about something that could be introduced into the Bill if people were minded to address the pressing problem of planning delays.

1494. I will deal first with the more general observation. Picking up from the Chairperson’s comments at the end of the Second Stage debate, we asked whether the Bill would work in practice, whether it would do what it intends to do and whether anything had been overlooked. Generally, the RICS takes the view that the Bill does what it says on the tin: it transfers planning powers to district councils with a few additional tweaks. Perhaps it is the additional tweaks that need to be looked at fairly carefully. The Bill contains the checks and balances, but the RICS would endorse two points that the Chairperson made at the Second Stage debate that powers for planning should not go to councils before they are:

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

1495. Similarly, we say that links between community planning and development plans need to be clearly explained. Diana has addressed that particular point.

1496. The more specific point that I want to make addresses clauses 103 and 104, which relate to conservation. Generally speaking, the powers in those clauses will come across from the Planning (Northern Ireland) Order 1991. In our opinion, the introduction of additional factors needs to be looked at carefully. The proposals are to change the conservation law to bring partial demolition under control and to apply an enhancement test to development. We feel that those measures should be approached with some caution. They address long-standing case law in England, and, despite the passage of time, no attempt has been made to change that. That sends a signal that there may be something to be cautious about in introducing those two measures. All that the RICS wants to do is flag that up and ask that the Committee look carefully at that particular element.

1497. I will turn now to the no harm test. If something is proposed in a conservation area, the law as it stands states that:

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

1498. should be taken into account. In other words, whenever we look at a development proposal, we must ask whether it preserves or enhances the character of the conservation area. The courts in England have taken the view that the critical element is that it causes no harm. The no harm test is fundamental to planning policy. That is the point that the RICS wants to underline. If a proposal causes no harm, it should be allowed in principle. However, the Bill proposes something that goes a stage further by introducing a test to ascertain whether a proposal enhances conservation.

1499. I am a supporter of historic buildings and conservation generally. I am member of the Ulster Architectural Heritage Society, which champions this measure. However, I am concerned that it may take planning one step too far. It makes it very difficult to conceive of how a development would measure up to the test of enhancement. If a proposal is put forward, and it causes no harm, we can understand that. If it has to enhance an area, we wonder what is going to be involved.

1500. My second point, which is also addressed in the Bill, is partial demolition. At the moment, if someone is in a conservation area and is required to carry out demolition, the courts have ruled that consent is required only if the building is to be totally demolished. If it will be only partially demolished, consent is not required. That has been addressed in the Bill, but it raises questions about whether it will lead to an abundance of planning applications for every minor issue that might have to be dealt with. For example, a householder wanting to push down a wall in their back yard will now ask whether he needs conservation area consent. They may or may not need planning permission, and, in many cases, it will be permitted development. However, such a case will fall under this element of the Bill. The complication is that there could be a lot more planning applications and applications for consent to demolish. That would introduce bureaucracy and would raise the question of whether it is absolutely necessary. If it ain’t broke, don’t fix it.

1501. My third point addresses the concerns that are prevalent at the moment about delays in planning processes. The RICS notes and commends the Planning Service’s successes in streamlining. The Planning Service has done a lot over the past two years, after it got a lot of criticism about the length of time that applications were stuck in the process. Things have improved.

1502. We welcome clause 224, which will introduce consultee obligations. In other words, if someone is consulted in the process of planning applications, they will have to reply within a certain time or suffer some consequences that are yet to be determined. That at least puts pressure on consultees to come back with responses in time, which is a positive move.

1503. However, processes remain cumbersome, and that is compounded by challenges or the threat of challenge at various stages, particularly where public inquiries are involved. I am talking and thinking about Sprucefield, Belfast City Airport or, most recently, Newtownards. The RICS feels that some thought could be given in the Bill to measures that would address the Minister’s concern that issues should be resolved at inquiries and by decision-takers, with the courts being the last resort. That must be right.

1504. Therefore, the question that I ask on behalf of the RICS is whether there is merit, under the Bill, in setting up a new regime to prevent challenges ahead of a planning decision and to raise the bar in what needs to be demonstrated. The significance of that, ahead of the planning decision, is that, at the moment we have challenges coming at various stages of the process, and when the application goes to public inquiry for one reason or another, environmental issues may not have been addressed, so the inquiry is pulled and the application is looked at again.

1505. If the Executive and Assembly could introduce a law that stated that there could be no court challenge until such time as a final decision had been taken, a lot of the delay factors in procedural challenges, some of which may be mischievous, would be taken out of the process. All challenges add to delays, so such a law would allow one opportunity at the end to challenge the decision if there had been a procedural flaw. We may get better-rounded judgments from the courts about whether the impact of the application was such that it required the matter to be looked at again. We feel that that is an issue that could be dealt with in the Planning Bill, and this might be the very opportunity to do that.

1506. The Chairperson: Thanks very much. You have provided a lot of food for thought. Other respondees raised many of the same issues. However, I will try to touch on some of the specific issues that you raised. I will start with you, Mr Dornan. Obviously, resources and capacity building are major issues for you in the transfer of all these functions.

1507. Mr Dornan: They are major issues. However, we do not want them to become absolutely huge issues, because the time frame is quite short. For example, April 2011 is one of the key dates. We do not want to be guilty, if that is the right term, of having a change for the good that does not turn out to be good. I believe that there will be enough of a burden on local councils dealing with, if I am correct, nearly 350 renewable energy applications in the planning system that do not seem to be going anywhere at the moment. The worst that could happen is that we make the changes and put people through the pain without improving the system. Therefore, resourcing, training and building capacity in local councils are absolutely essential for this shift in the planning system.

1508. The Chairperson: I will put it to the Committee for agreement, but there is to be a two-year review of how this whole process rolls out, which is fine. However, we are clear that, until the governance is in place, the Bill will not be implemented. The pilot programmes may give us a feel for exactly how the process will work. We are in agreement about that, although, as I said, the important issue is the capacity building, which everybody has mentioned. How do we deliver that when it comes to deciding fees and getting the model to run that all out? Do you have any comments on that? Should the system be entirely fees based?

1509. Mr Dornan: Interestingly, the Planning Service has just put its fees up by 20%. I think that it was last year or the previous year that the fees were increased by 20%, and we have seen a downturn in economic activity. I think that the fees structure has to suit the service that we deliver. Moving planning to local councils should really be cost negative. There should not be any huge cost in moving planning from one government Department to another government agency.

1510. The Chairperson: Obviously, there is a cost with training and capacity building. Having said that — I am sorry, the point has gone out of my head. I will have to come back to it.

1511. Mr Dornan: To supplement that, I will give you an example of how training will help the situation. For the past three days, I have been involved with training. I work for Belfast City Council’s building control service, and for the past five years, we have been helping LPS to finish off its rating surveys and to get ratepayers’ bills out quicker. That ultimately helps absolutely everyone. We have been training with the Institute of Revenues, Rating and Valuation (IRRV), which is the professional body for rates collectors on these two islands, to try to improve the collection of rates and make that process more efficient. I believe that capacity building involves training for elected members and people working in local government. As my colleagues said, we have offered training, and we have offered to be involved in training for the new services in the councils.

1512. The Chairperson: Planning is still a public function. When dealing with finances, there has to be value for money, but people sometimes have to weigh up what they are getting. For example, we have seen planning rolled out in central government through the Department for a number of years, and we have also seen that fees have been accumulating recently, so the service did not exactly meet the amount of necessary work.

1513. Nothing has been said about the actual model that will be used to transfer planning down to the councils and how much work that will take. The previous presentation mentioned fees, but it also looked at the rates base. That would need to be part of how the system is rolled out over the two or three-year period or whatever period of time it is. It is something to seriously consider. We cannot just hand power down, decide to train people up, think that everything is fine and then tell ratepayers that that is what we are doing.

1514. Diana, you mentioned the plan-led process for councils and the timing that is involved in that. You talked about surveys, districts, designating roles and everything else. You worked in the area-planning process, so from your experience, how do you see that element?

1515. Ms Fitzsimmons: I was wondering whether there could be some sort of central resource for the 11 councils so that they can carry out a lot of the survey work. There are people in the Planning Service now who are quite skilled at doing development plans, and there are other people who have never done any such work. Rather than each council having to learn, possibly once every six years, how to do a plan, if there were a central resource that would help them out, as it were, and possibly carry out some of the analysis and research for them, they could then, after community consultation, evolve that into options and a plan. It might be a good idea to take some of the technical side of the process to a central resource.

1516. The Chairperson: How would you tie in the reality of that? We are talking about land use and zoned planning and community aspirations. We have to consider what goes along with that, such as the community plan element, local policies, statements, area plans and the RDS. How do you think that that whole process will work out?

1517. Ms Fitzsimmons: From what I have read, it seems to me that the community plan will be an all-district one. There are issues with that in that it becomes a wish-list for hospitals, schools and parks and so forth, yet the regional development strategy states what we can afford as a region.

1518. The Chairperson: I agree, and that needs to be teased out. That is why I asked you. We talked about spatial planning and land use planning, and spatial planning is about more than just using the land and places. It is also about the hierarchy that you mentioned.

1519. Ms Fitzsimmons: In an ideal world, the elements of the community plan that feed in to land uses should be taken on board by the local development framework and then worked through. Councils will have to make very hard decisions about which town centres will grow and which will not and where hospitals will be built. For example, community planning may result in people wanting a lot of small hospitals, yet the strategic plan will require large, specialist hospitals, as that is more economical. Therefore, it will not be an easy process.

1520. The Chairperson: I can well believe it, but we seem to be gearing up to move in that direction.

1521. Mr Morrison: It will probably have to be revisited when the proposals for local government come forward. One of the ways of simplifying the issue is to consider the development framework as just one means of delivering the community plan. In other words, there is a hierarchy, and the community plan is more important and on a larger scale for all aspects of local authority expenditure.

1522. The Chairperson: No doubt it will be one step at a time. Diana, we talked about the PAC earlier. We may create duplication if we create a process in which plans are sent to the Department with the possibility of their being sent to the PAC and returned to the Department. You have been on the inside of that process, so what are your views on that point?

1523. On the capacity issue, Bill told the Committee that there is a backlog as a result of redeployment and other issues. That backlog could be cleared quickly, but further problems could be created if we move it on a further step, as decisions will need to be made. There is nervousness in the Department about this, which is fair enough.

1524. Ms Fitzsimmons: The Planning Appeals Commission has evolved the process. It used to take a very long time to conduct a public inquiry. Examinations are much quicker, as they are commissioner led, but they could be further tightened and speeded up quite substantially. For example, a lot of people do not turn up when they said they would, and there is a great deal of time wasting. A number of commissioners should work on one plan to get it through quicker. In my opinion, the point is to use the Planning Appeals Commission’s resources effectively.

1525. The Chairperson: Bill, just before I open it up to Committee members, you spoke about clause 224 and the duty to respond to consultations. I will not mention my experiences as a councillor, but, given that there are different applications for different developments, should the time frames for the receipt of consultees’ responses to such applications be broken down?

1526. Mr Morrison: Clause 224 will leave a lot to development Orders and so on to specify what sanctions will be placed on consultees. However, at least the provision is in the Bill, and there probably will be an insistence from Departments for those responses to come back on time.

1527. One way that a consultee can get out of that duty is to say that they need more information. That is a delaying factor that perhaps no legislation can overcome. If someone needs more information, it must be provided and the file is put away until that information arrives. The recognition that consultee responses are crucial to the time frame of processing planning applications is important, and I am glad to see it in the Bill.

1528. The Chairperson: We can move that on and say that, for the consultee to be able to say that, the processes need to be right from the start. If a consultee is able to stall the process by saying that they have not been sent certain information or they need a question answered, should there not be a time frame for that? You have spoken about procedural flaws and planning delays in general, and there are certain criteria that you have to go by. I will ask you about agents in a moment. However, the process is a tick-box exercise, and, if mistakes are made, applicants could argue that their agent did not fill in the application properly. The case officer would then have to go back to the person who validated that application.

1529. Surely to God if you are telling me that about the procedures and duty to respond, and the consultee is saying “you have not sent me this" or phoning up to say “give me another week", whoever is sending that information has a duty to respond. Do we not then need to look at that process and the criteria?

1530. Mr Morrison: The criteria have tightened. The whole validation process is a lot tighter than it was and probably as tight as it can be. The problem with consultees is more to do with the fact that the resources of the Department or agency that is dealing with the responses are not made available. Clause 224 will ensure that resources are given by other Departments to the processing of planning applications.

1531. Ms Fitzsimmons: The Planning Service’s strategic projects team now has in-house representatives of the Northern Ireland Environment Agency and Roads Service. That in-house element helps to speed things up. Maybe councils need a similar in-house team with their own NIEA and Roads Service people to work with them on planning applications in a more joined-up process in each council.

1532. The Chairperson: We could call them mistakes, but we need to learn from what went on in the past.

1533. Mr Morrison: You can learn from successes as well as from mistakes.

1534. The Chairperson: Yes, certainly. We will not get into which consultees hold up the process, because we will be here all day. I talked during the previous presentation about agents and their training. No disrespect, but I have sat on a council and it is only when a person gets a refusal that you get a phone call asking you to speak up at a council meeting for them. There are people who may be good architects but when it comes to planning policy, or knowing policies, you might be safer to fill in the application yourself and send it in. I am being honest; that is what happens. Is there anything in this? Have you any recommendations or any views?

1535. Ms Fitzsimmons: The RICS could perform a useful role in assisting councils, the Department of the Environment and the Planning Service in training applicants if there is a relationship there that needs improving.

1536. The Chairperson: That is what is happening out there. Do not shy away from it. In all the processes that we are trying to get right, we have experienced that at council level and we need to look at it. I am not saying that we put that in the Bill. Perhaps it could be a recommendation.

1537. Mr Morrison: Your worry is uninformed agents who may be —

1538. The Chairperson: That is there; it is on the ground.

1539. Mr T Clarke: Not necessarily uninformed.

1540. The Chairperson: No, not necessarily uninformed.

1541. Mr Morrison: The planning system should not be dependent on high skills. It should allow people to be able to submit an application properly. However, that might require training of agents.

1542. The Chairperson: We thought that e-PIC would cure that problem but I do not think that it is working just yet.

1543. Mr Morrison: Yes.

1544. The Chairperson: Let us be honest: we have seen what is happening on the ground. All I am saying is that that needs to be highlighted. You maybe do not have to be a rocket scientist to put in an application but you certainly need to know a wee bit about planning policy and criteria.

1545. Mr Dornan: In the building control system in this country you do not have to be an architect to submit an application. Local councils and building control services would like to have a particular type of person submit an application because that would dictate the information that is supplied and make it easier for the council to make a decision. I think that that is what you are referring to.

1546. The Chairperson: I had just better clarify that point for the Hansard report: I used architects as an example only. I agree with you, and we will speak no more on it.

1547. Mr Dornan: What I am saying is that there is no limitation on anyone being an agent in the building control end of the business. Whether they are a surveyor, architect, engineer or a lay person, they have a right to submit an application for consideration by the local councils. That is the case here, and it may well lead to delays in the consideration of that application.

1548. The Chairperson: If people want to put in an application, there are certain ways of going about it, including using the ‘Yellow Pages’, word of mouth or their contacts. That is fine. I have made the point clear.

1549. Mr W Clarke: Following on from what the Chairperson said about having to get agents for simple applications, surely, since the Planning Service was set up, there has always been an onus on the Department to provide that information to the applicant at the beginning of the process. Surely front-loading the service at that stage will do away with the need for agents. If more resources were put in at the front end, it would help people with their application. I know that people phone up a planning office and are told that it is too busy and to stick in an application for the planning office to decide what points need clarified. That is a drain on people’s resources. I think that there is a duty, perhaps through resources being directed from central government, to put the money into Planning Service at the beginning of the process.

1550. Mr Morrison: In fairness, the Planning Service has moved quite far in that direction, not so much with the e-PIC system but with the website.

1551. Mr W Clarke: Ordinary lay people do not get trained on that.

1552. Mr Morrison: It is a complicated business.

1553. The Chairperson: There is nothing simple about planning.

1554. Mr W Clarke: It has nothing to do with the computer systems. I am talking about having a one-stop shop whereby people come into a planning office and go through their application. People should have at least one opportunity to do that.

1555. Mr Morrison: As a general observation, one of the things about giving powers to councils is that there is a danger that each council will behave in a different manner with regard to these things.

1556. Ms W Clarke: As planning offices do.

1557. Mr Morrison: Yes. Even on the question of fees, which you touched on, it seems that it would be difficult if each council area were to set its own fees. There is an argument for keeping them consistent across the board.

1558. Ms Fitzsimmons: Clause 40 states that an order will be made that will require particular types of applications for planning permission to have design statements and access statements. That is the English system, and it takes a professional person to do that, as opposed to an unqualified agent or an applicant. That is one of the things that will be required in the future.

1559. The Chairperson: That is fine. I think that you are correct on that.

1560. We are being told that we will not have enough time to scrutinise the Bill, but a lot of questions will be asked before we are finished. We have an opportunity to get it right. There will be a transition period when people take time to bed in and get it right. Subordinate legislation will determine how it rolls out on the ground, and some of the issues that we talked about today will raise their heads. For the record, I have nothing against those architects — or architects in general — but I am giving examples of what we have heard, and we need to look at that. Thank you.

27 January 2011

Members present for all or part of the proceedings:

Mr Cathal Boylan (Chairperson)
Mr Patsy McGlone (Deputy Chairperson)
Mr Danny Kinahan
Mr Peter Weir
Mr Brian Wilson

Witnesses:

Mr John Quinn

 

Arc21

Mr Terry Bunce

 

Ards Airport

Ms Anne Doherty

 

Belfast City Council

Ms Joan Devlin
Ms Jonna Monaghan

 

Belfast Healthy Cities

Mr Colm Bradley

 

Community Places

Mr Lewis Porter

 

Craigavon Borough Council

Mr Patrick O’Neill

 

Development Planning Partnership

Ms Sharon O’Connor

 

Down District Council

Mr Roger Pollen

 

Federation of Small Businesses

Mr James Orr

 

Friends of the Earth

Mr Kevin McShane

 

Institution of Civil Engineers

Mr Ian Wilson

 

Lisburn City Council

Ms Carolyn Wilson

 

Mobile Operators Association

Mr David de Casseres

 

Northern Ireland Electricity

Ms Catherine Blease
Ms Esther Christie

 

Northern Ireland Housing Executive

Ms Alison McCullagh

 

Omagh District Council

Ms Claire Ferry

 

Royal Society for the Protection of Birds

Mr Brian Sore

 

Royal Town Planning Institute

Mr Patrick Cregg

 

Woodland Trust

1561. The Chairperson (Mr Boylan): I declare the meeting open to the public. I remind all members and those in the Public Gallery to switch off their mobile phones. Even on silent, they interfere with the recording system. We have received apologies from John Dallat, Thomas Buchanan, George Savage and Willie Clarke.

1562. Today’s evidence in the Long Gallery will focus on four areas of the Planning Bill that have been consistently highlighted in public responses as key areas of concern: the independent examination of development plans and appeals, including the proposed balance of control between the Department and local authorities; developer contributions to community infrastructure funding; pre-application community consultation; and third party appeals.

1563. I thank you all for coming to Parliament Buildings to participate in the Committee’s evidence event. The Planning Bill is a large Bill that covers a range of areas, and the Committee has little time in which to conduct its scrutiny. The Committee is trying to condense as much evidence as it can into the time available. We have now received 61 written submissions from a range of individuals and organisations keen to make us aware of their thoughts on the Bill. I take this opportunity to thank you for your written submissions and your attendance today.

1564. Yesterday and this morning, the Committee took evidence from 11 organisations that it felt represented the statutory sector, local authorities, social and community needs, technical aspects of planning, and business and industry. Today we will focus on four areas of the Bill that have been raised consistently across this spectrum of interested parties.

1565. The Bill was introduced in the Assembly on 6 December 2010 and passed its Second Stage on 14 December. Committee Stage began on 15 December, just before the Assembly went into recess, and, after a two-week extension was agreed this morning, will now conclude on 1 March, when the Committee will report to the Assembly. It is expected that the remaining plenary stages of the legislative process will take place during March.

1566. Members of staff have microphones. If you wish to speak, please signal to me or to Committee staff. A paper setting out the order in which evidence will be taken has been provided to everyone. There are four main areas for discussion, and I will be strict in confining people to each discussion area because, as frustrating as it may be, we simply do not have the time to run through all of the issues. On that point, we had 61 written submissions. I do not think there is anything to hear that that we have not already heard. The Committee will hold other evidence sessions, but today we want to stick to those four main areas.

1567. I will outline the area for discussion first, then call on the organisations listed against each topic to present their perspective. I will call two representatives, each of whom will have minutes. I will then throw open the discussion to the floor. At the end of all the sessions, we will get departmental officials to respond. Anyone else who wishes to comment should start by stating their name and organisation for the record. There will then be an opportunity for Committee members to ask questions. I will then move onto the next clause as listed. Once all the areas have been dealt with, I will invite departmental officials to make their points.

1568. Without further ado, the first discussion is on the independent examination of development plans and appeals, including the proposed balance of power between the Department and local authorities. Throughout these sessions, I encourage people to indicate how they would like to see the Bill amended to address their concerns. There are two speakers with five minutes each on the first topic. Colm Bradley from Community Places will be followed by John Quinn of Arc21, after which I will open up the discussion for brief points and suggestions from the floor.

1569. Mr Colm Bradley (Community Places): Thank you, Chairperson, and thanks to the Committee for organising this event. On the general principle of the balance between the Department and local government, our view is that, wherever possible, if we are handing planning over to local government, decisions should be taken by local government. The Department’s primary role should be to ensure consistency across all local government areas, so that regardless of where an applicant or objector lives, or where a community is concerned about an application or a development plan, they know that they will be treated the same as elsewhere. In other words, it should not be a postcode lottery. That should be the Department’s primary role — to ensure consistency and good governance across all local government areas. If we are devolving planning, let us devolve decision-making to local government.

1570. On the issue of who should carry out independent examination and the Department’s role in it, I should first say that we welcome the move towards independent examinations and the introduction of a soundness test. Although it has yet to be fleshed out in more detail, we like the sound of the soundness test.

1571. The Planning Appeals Commission (PAC) is appointed not by the Department but by the Office of the First Minister and deputy First Minister (OFMDFM). It is so appointed in order to ensure its independence and to ensure that the public will trust it as an independent professional organisation. We feel that that is important to public confidence in the planning system — the whole planning system, the whole process — and we should cherish and protect that independence. Some of the proposals in the Bill suggest that that independence may be undermined in the future. For example, it is proposed that the Department may appoint an independent examiner other than the PAC to examine a development plan. I am sure that, on occasions, having another resource will be helpful; however, we do not feel that that person or persons should be appointed by the Department. They should be appointed by OFMDFM, which appoints the PAC.

1572. The final issue with the independent examination of development plans is the role of the Department. Should it, as proposed in the Bill, have the power to adopt or not adopt a PAC report? If the Department retains that power, that will undermine the independence of the system. Regardless of the soundness of the Department’s decisions on those occasions, the public may well feel that it is ultimately the Minister who is deciding what happens with a development plan. The whole system will not have the degree of public confidence that we all hope it will have. The PAC must be an independent body whose only considerations when it looks at a development plan are planning policies. Its independence is extremely important to society and for building public confidence in planning. Let us retain that confidence as far as we can.

1573. There are PAC resource issues. There are also issues associated with its procedures, timescales and delays. Those are operational issues that need and ought to be sorted out, but they are not issues for the Planning Bill at this stage.

1574. Finally, on the issue of appeals, we would all like to think that decisions on planning applications would be taken correctly the first time and be right. Unfortunately, they are not. As with many other decision-making systems, an appeals system is sometimes required. If we improve our systems and get our decisions right the first time there will be less need to use an appeals system. As the success rate of an appeals system falls, people use it less. So, let us get the decisions right the first time and we will then have less use of an appeals system. However, we do need an independent appeals system to build in confidence and ensure consistency across the region.

1575. Mr John Quinn (Arc21): I cannot disagree with anything that Mr Bradley said. However, I would like to turn to the issue of the balance of power. Arc21 is an umbrella group representing 11 councils in the east of Northern Ireland tasked with delivering mission-critical waste infrastructure. Planning is pivotal to the successful outcome of the programme. I suspect that Arc21’s views will not diverge much from the general local government view. Arc21 and local government generally perceive a reticence by the Department to release the shackles and allow local government truly to take decisions in terms of devolving planning functions.

1576. I quote from the Hansard report of the Assembly debate on the Second Stage of the Planning Bill on 14 December 2010, when the Minister said the transformation was fundamental:

“to the development of local accountable democracy. It puts power … in the hands of locally elected representatives accountable to the people." — [Official Report, Vol 59, No 2, p112, col 2].

1577. Those are honourable words, but they are not evidenced in the Bill with regard to the balance of power. We are not sure of the motivation for that, but it certainly does not seem to militate in favour of giving power and accountability to local councillors and the people who elected them.

1578. I do not want to be specific, but the whole Bill is peppered with issues such as retention of powers of direction, scrutiny, performance appraisal, monitoring and oversight. Therefore, it appears to local government that a lot of the power is being retained. While the operational function may be devolved, perhaps a lot of the decision-making is being retained in the centre.

1579. Liabilities and financial implications, however, appear to be very much vested now in local government. There is not enough clarity on those financial and operational implications. Perhaps that goes back to the absence of the level of engagement that we would have liked to see in the run-up to implementation with regard to resource implications, financial implications and the amount of compensation that has been paid or will be paid under the future regime. There has been little clarity in respect of the status quo or, indeed, of the implications of the current financial and human resources situation in Planning Service. I want to make that general point.

1580. In terms of what we might want to see, one proposal is that there should be some sort of appeal mechanism on foot of decisions or interventions by the Department. Recourse by local government against decisions or direction from the Department is absent from the Bill. We would like there to be some embodiment of a process by which to appeal those decisions.

1581. Assuming that there is nervousness in the Department about devolving the powers to local government — perhaps understandably, given that there is no recent history of local government’s performance in that context — it might be appropriate to consider some sort of a review mechanism within the process, so that those shackles could be loosened progressively over time as capacity is built up in local government. Some sort of review within a timescale of, say, two, three or five years — or, indeed, a periodical review of the process — might be something that the Committee might find appropriate.

1582. I want to deal with the issue of independent examination. We welcome the move from the more litigious public inquiry process to the more informal examination in public. Hopefully, some of the other measures that are proposed will make the process less adversarial.

1583. However, again, in the powers that are proposed to be retained by the Department that relate to the appointment of commissioners, it does not have that power. There is evidence that it seeks to retain the power to appoint commissioners in the new regime, which almost supersedes the functional remit of the PAC. I do not see the rationale for that. I do not even see the justification for it vis-à-vis the consultation process. Certainly, there was no massive head of steam to give the Department those powers in the responses to the consultation. Therefore, we cannot understand the motivation for it. There are other ways to do this that retain the PAC’s independence in the process — by giving it that remit. If there were resource issues, the PAC could appoint outsourced commissioners, or OFMDFM could do the same. I cannot see any particular reason why the Department needs to retain that power.

1584. Under clause 29, which deals with call-in provisions, the Department seeks similar powers to appoint beyond the PAC for a public inquiry or hearing. That could create a situation in which the Department itself would be conflicted in that process, having appointed an independent commissioner to oversee a hearing or public inquiry while still having the ultimate remit in the decision-making process. We cannot see the rationale behind that. We believe that there are other ways to deal with that if there is nervousness about resourcing implications for the PAC.

1585. The Chairperson: OK, John. Thank you. Luckily, Colm finished a little early and we were able to give you an extra minute. I propose to open the meeting up to the floor for 20 minutes. We have talked about development plans and independent examination in general terms, and I will allow sharp and short contributions on that issue for 20 minutes. Following that, I will open it up to Committee members to ask questions.

1586. Ms Anne Doherty (Belfast City Council): I want to back up some of the comments about power and accountability in local councils. There are a number of areas in the Bill that duplicate functions between the councils and the Department: joined-up planning agreements; the designation of conservation areas; the making of tree preservation orders; and the issuing of enforcement notices. The council considers that duplication to be unnecessary and a repetition of responsibility and resources that has the potential to cause unnecessary confusion in the planning process.

1587. Belfast City Council also feels that the Department has retained too many powers of oversight of and intervention in the planning process. Again, that will undermine the local accountability of councils and has the potential to cause delays in the planning process.

1588. A hierarchy of planning applications is proposed in the Bill. However, a major planning application in a rural area could be quite different to what would constitute a major application in the Belfast City Council area. The council feels that the Department’s call-in arrangements should be limited to plans that are contentious or contrary to local development plans, rather than being based on a hierarchy.

1589. Finally, the council requests that the Planning Appeals Commission be adequately resourced. It would also be more appropriate for independent commissioners to be used for less controversial appeals or specialist issues, rather than being appointed by the Department for the development plan process.

1590. Ms Sharon O’Connor (Down District Council): I participated in the whole process of the Ards and Down area plan, from genesis to public inquiry. Although it was an extremely interesting and educational experience, it was not one that was characterised by ease of public access or participation. The performance of the PAC was satisfactory, but, ultimately, it was a frustrating exercise for local government participants, as the recommendations made by the PAC — which were based on planning policy — were largely rebuffed by the Department. I hoped that the Bill would contain an improved quality of transacting in the area planning process, not one that would buffer up the retention of the power in the Department or water down the independence of the Planning Appeals Commission. The council feels that the commission is effective, on balance.

1591. Ms Claire Ferry (Royal Society for the Protection of Birds): I have two points. The Government response discussed the possibility that during the independent examination, the objectors to development plans, as well as the proposers of the plan, would have to show that their proposals were sound. Why is that not mentioned in the Bill?

1592. My second point regards adoption. As Mr Bradley mentioned earlier, the examination report is not binding. That is ameliorated somewhat in that the Department must show that it has considered the recommendations and give reasons for its decision. A non-binding report is connected to a certain amount of democratic accountability, but it has also speed implications for the adoption of reports. A binding report will go through much more quickly. If one of the problems is the speed of plans, that needs to be considered.

1593. Our key concern is that, if an independent examiner makes recommendations to rectify a draft plan which they consider to be unsound, and the Department does not adopt those recommendations, is there any chance of legal challenge? What does the Department think of that?

1594. Mr Roger Pollen (Federation of Small Businesses): We have made a written submission, and I just want to add three points to what we have heard.

1595. Our members want to see the planning process simplified, speeded up and made less costly and more responsive to the needs of business. In a recent survey of our entire membership, things cited as relevant in the process were the fees, the professional fees that are then involved to do the job well and the time costs to small businesses that are caused by delays. We will certainly welcome anything that leads to a faster and more flexible approach.

1596. We express caution that the powers that are reserved, as referred to by Arc21, allow intervention outwith the normal expected process. Where that is possible, it will lead to delays, challenges and further expense.

1597. Finally, we note the uncertainty over the future status of councils, given the restructuring following the review of public administration, or the lack of it at the moment. We urge caution that consistency of application should be applied. Obviously, the Department’s role in that will be critical.

1598. Mr Ian Wilson (Lisburn City Council): I have a couple of points to reinforce those made by others and expand on them slightly.

1599. We would like to see some sort of clarity on the circumstances of the intervention of the Department under clause 16. It is not clear in the Bill, and we believe it needs to be. The intervention in substantive checking is also going to cause a major delay in the introduction of a suite of development plans across Northern Ireland. We would like the focus to be rescheduled on that particular element.

1600. Lisburn City Council wants to know what is meant by cost neutrality on the transfer of powers. Is it cost neutral before people have been redeployed in the Department as a whole, or from that time? The whole explanation of cost neutrality, and the resource to be transferred, needs to be clarified.

1601. The other issue is in relation to the role of independent examiners. Lisburn City Council would like a definition of what is meant by “unsatisfactory" in clause 15, in relation to development plan documents. That is not clear, and perhaps enabling legislation is needed to clarify it.

1602. Clause 16(7) states that:

“The council must reimburse the Department for any expenditure"

1603. in relation to call-in for the preparation and revision of a development plan. Local authorities will strongly object to that.

1604. My colleague from Belfast mentioned local development plans. The requirement for enabling legislation to deal with competing interests between neighbouring local development plans needs a little bit more resource and more thinking through.

1605. Mr Brian Sore (Royal Town Planning Institute): We made a submission yesterday. On behalf of the 500-odd planners who are our members in Northern Ireland, we have been making a plea on behalf of the professional role. In relation to the Department’s role in this, someone expressed surprise that the Institute is in favour of the Department releasing the controls in the Planning Bill. Obviously, some of our members are planners in the Department. There needs to be clarity, from the professional perspectives at local and central level, about how the Department will act as the overseer of planning in Northern Ireland. If we are really going down the route of devolving power to the local councils, free rein should be given to them and to the professional planners who work in them. Planners do not want every decision they make to be second-guessed and sent back to the Department, and they do not want the system to be over-bureaucratised by having to fulfil business plans every year that then go back to the Department to be approved. That seems like a duplication of effort.

1606. I back up what was said by my colleague from Arc21. There needs to be proper resourcing. The Bill is going to cost money, and the current system does not have sufficient resources to provide both the Department and local councils with a fit-for-purpose planning unit. The Committee should urge the Minister to be explicit about the resources that will be available. As Ian Wilson said, it is not just about cost neutrality.

1607. Public confidence in any form of appeals system is paramount. If an independent is appointed, they need to have transparency and the confidence of the public in any decision that is made. What is not wanted is an independent system that ends up with legal challenges going on. The Planning Appeals Commission has been set up and has a fair degree of support in relation to its independence of the system and the Department. The institute supports that. If there is an independent examination, it needs to be done in a way in which the Planning Appeals Commission would carry out that role.

1608. It was remarked to me that a system that gives control to a local level will represent true local level. Although we argued that the Department should not have controls, there clearly needs to be an instance in which the Department will have a right to pull in a plan if it is going completely off the rails. Clause 16 gives some degree of comfort that the Department has that right, without having to repeat it in several other clauses.

1609. Mr Kinahan: I want to play devil’s advocate slightly. Last night, I was with a community group that had no faith in its council’s being able to make decisions. It was completely unfair, but I imagine that that is why the Department wants to keep some control. There may not be faith in politicians, local councils or the Civil Service, but we all have to fight that battle together. It is about finding that balance in it all. The Department has taken a lot of battering today on having too much control. As Mr Quinn said, it is peppered all the way through. We need it there until we have all won the confidence in each of our roles.

1610. I was with my council this morning. I am not a member of the council any longer, but it desperately needs information on resources, clarity and the status quo, as John Quinn said earlier, because it needs more information to make a good response to this. The Committee has a long way to go before we get all of the information together.

1611. The Chairperson: We talked about capacity in the PAC and whether OFMDFM should appoint an independent challenger if one were needed. The appeal mechanism was mentioned, as were the review period, call-ins, public participation, the soundness, legal challenge and clause 16 in relation to being cost neutral. Clause 15 was also mentioned, as were duplication, resources and confidence within the system. That is a recap for the departmental officials on some of the issues that were raised.

1612. The second discussion is on the community infrastructure levy and developer contributions. I welcome Kevin McShane from the Institution of Civil Engineers and James Orr from Friends of the Earth. Both of you have five minutes, after which we will open up the discussion once again.

1613. Mr Kevin McShane (Institution of Civil Engineers): Thank you. The institution welcomes the changes in the Bill and thanks members for giving us the opportunity to speak today. As a professional body, we represent a broad spectrum on the professional side, with over 1,800 members in Northern Ireland, some of whom are based in the public sector. In relation to the infrastructure levy and developer contributions, we want to concentrate our comments on quite a lot of the work that we do for the developers.

1614. We have heard from Ms O’Connor and Mr Wilson from Down District Council and Lisburn City Council respectively. I was going to be generic in my references, but, with the people who are here, I might be specific to try to generate some debate and see what sort of a response I get. Over the past few decades, we have seen the area plans develop, and quite a lot of zonings have come forward. The zonings have been associated with requirements for the delivery of new infrastructure. One example of that is the housing that has been zoned to the north of Lisburn; some 2,000 houses were zoned in the last area plan. That required the delivery of the Lisburn north feeder road.

1615. Ballyclare is another good example, where the N31 was proposed as an essential piece of infrastructure to serve a development. The plan for that was first published in 1993, yet it sat through the 2005 expiry date and extended on through to 2010. That is where it currently sits.

1616. We saw the Ards and Down plan recently through the PAC. A lovely piece of infrastructure has been identified in Downpatrick, where there is a large zoning. The area plan makes it quite clear that that infrastructure has to be delivered before those houses can come forward.

1617. In Lisburn, developers came together with the local council and other bodies and entered into an article 40 agreement to deliver the road, which was quite a comprehensive scheme. Unfortunately, all of those negotiations took about five years to reach agreement before any design work could commence. It then took several years to go through environmental legislation and the planning system before we could actually start to build any of the much-needed homes in that area.

1618. I mentioned the introduction of the draft plans in 1993 for Ballyclare highlighting the requirement for the road. However, there were a number of developers who could not come together and reach agreement on how that was going to be delivered. It is only now that one developer has bitten the bullet, purchased all of the land and come forward with a scheme that has commenced on site now. So, you can see the time — from 1993 to 2011 — that it took to deliver that.

1619. To use Downpatrick as an example, my fear and that of the institution is that the market conditions and the current status mean that the landowners and the developers will never get together to deliver the road. So, we have a large zoning in an area plan that effectively will not be delivered during the life of that plan.

1620. There is, however, a willingness from the developers and from the community to provide contributions to allow that, as an example of infrastructure, to come forward. Yet, in the existing Bill and the previous legislation, there is not really a mechanism that allows funding from separate groups to come forward. Clause 75 of the new Bill allows the possibility to pool separate contributions and developer contributions.

1621. Is that a better way of allowing developments to proceed? You can have a fund in place to allow contributions to be made on either a number of units, if it is a housing scheme, or a square-footage basis, if it is some sort of retail scheme or another form of proposal.

1622. We note that local authorities in the South of this island have used community charges widely. That means that developers know from the start what the charges are going to be, with the result that they can budget and allocate for them. The local authorities also know what funding will come in place. They are the bodies that control the delivery of the infrastructure as it is required. In Britain, such an arrangement was confirmed by the Department for Communities and Local Government. On 18 November last year, Greg Clark confirmed that the community infrastructure levy that the previous Government introduced in April 2010 would be retained. Britain is looking at having better arrangements from article 40s and section 106s.

1623. A similar fund here would allow the smaller applications to pay their fair share. Quite commonly, small schemes for small retail, small development, small schools and small housing projects do not, on their own, generate a requirement to provide a significant element of infrastructure. If we go back to the likes of Downpatrick as an example, it has a hospital, the possibility of new offices and new residential developments, which are all small applications. In their own right, they would not justify anything. However, putting them together as a community infrastructure level allows the local authority to control where that funding is best used and controls the mechanism of pooling those funds together and using them. I am therefore asking members to make sure that the Planning Bill allows the local authorities to control and use some sort of community infrastructure levy.

1624. The Chairperson: Thank you very much. Downpatrick and Belfast have got a good mention today.

1625. Mr James Orr (Friends of the Earth): Thank you for giving me the opportunity to speak to you today. I warmly welcome the comments from the Institution of Civil Engineers. It was a bit of a relief to hear that it supports the Bill; we have not been in collusion about that.

1626. I want to try to convince members of three things today. The first is the benefits of a new approach to planning gain, which incorporates things such as the old article 40 agreement, which will now be made under clause 75, and the community structure levy. I want to outline the benefits to all parties, including communities and developers, as well as the benefits to the planners themselves. Finally, the new approach to planning gain is a central pillar to the principles that underpin planning reform.

1627. We have only one major fear to deal with, which is the fear that we have to overcome the myth that we are burdening the private sector. Friends of the Earth fully supports economic development, but a strong economy involves a lot more than short-term private profiteering. A healthy economy is also measured by well-being, green infrastructure, woodlands, open space, convivial spaces and a strong informal economy. It is about balance and reasonableness. Planning exists to serve the public interest. We know that granting planning permission for a site can increase development value tenfold, and sometimes a hundred fold, even in recession. The basic principle is that those who gain financially by the granting of planning permission should share some of that financial gain by investing in relevant infrastructure.

1628. To our mind, the community infrastructure levy has two main benefits. First, it is a legally robust method of collecting funding. Secondly, it requires local authorities to develop an infrastructure plan, either through their local development plans or community planning. It gives transparency and predictability, and it can be set at a rate that does not undermine economic development in an area. We have a huge infrastructure catch-up to play in Northern Ireland, and checks and balances include an examination in public, the exclusion of small developments within recognised thresholds, and widespread consultation on the levy. Therefore, I think that the burden on particularly small developments is quite a myth. Even during a recession, we must take a long-term view so that we can help planning authorities to plan ahead.

1629. We believe in and welcome clause 75, particularly for social and affordable housing, applications that are accompanied by an environmental statement and one-off complex applications for which a community infrastructure levy is not relevant. The principles of transparency, culture change in the planning system and delivering a plan-led system are all fully supported in the context of that radical and interesting approach to a community infrastructure fund or levy.

1630. In conclusion, meeting our huge infrastructural needs will be one of the biggest challenges that we will face in Northern Ireland over the next 10 years. We need to support sustainable homes, distributed grids and integrated connectivity away from the private car. We also need to invest in and share the burden equally and fairly in matters such as combined heat and power schemes. I believe that we must retain the informality and flexibility of clause 75 while including a more predictable and plan-led approach, which will be provided through the community infrastructure levy or community infrastructure fund.

1631. The Chairperson: Thank you, James. When I saw you rolling up your sleeves, I thought that the Committee was going to be in trouble. I will now open the session up to other contributors.

1632. Ms Alison McCullagh (Omagh District Council): Omagh District Council welcomes the transfer of a fit-for-purpose planning service to local government. However, we also feel that such a planning service requires teeth.

1633. It is disappointing that there is no meaningful reference to community planning in clause 75. That is particularly so, because, as other speakers said, this is the framework through which community planning can integrate with land use planning. Omagh District Council is disappointed with clause 75(3), which, on the issue of developer contributions, states that:

“the Department must consult with the council for the district".

1634. Surely the intention should be to seek agreement, particularly if the council is representative of the community. The council is also disappointed that many developer contributions may relate to rezoning at a later stage.

1635. I concur with the previous contributor that there must be absolute clarity on the financial model for determining the infrastructure and the timing that is associated with the payments of the contributions. There must also be flexibility on the definition of the area of benefit, no potential for developer contributions to be minimised or avoided and no possibility that any community infrastructure fund will be reduced.

1636. Ms Esther Christie (Northern Ireland Housing Executive): The Housing Executive welcomed the reference in the planning reform report to developer contributions. It noted that two methods were outlined in that report: first, a community infrastructure levy; and secondly, article 40 planning agreements. The Housing Executive feels that those methods of delivery are not mutually exclusive and could be operated simultaneously. The approach through the article 40 planning agreements would be preferable for social and affordable housing, as it would directly contribute to the promotion of balanced communities and would ensure a land supply for social and affordable housing. It is also more in line with the way that social housing is programmed and funded in a regional context. We feel that the community infrastructure levy would require legislation, while article 40 planning agreements can be applied through policy. Indeed, if a regional draft policy on developer contribution, that is, PPS22 were brought forward, it would provide a consistent basis on which all the council areas could apply article 40 agreements. The Housing Executive would prefer that social and affordable housing be facilitated through article 40 planning agreements, rather than through the community infrastructure levy approach.

1637. Ms Jonna Monaghan (Belfast Healthy Cities): I welcome what has been said so far. I also want to reinforce the point that even quite modest developer contributions can support local level infrastructures such as play spaces and walking paths. Such activity can contribute significantly to the creation of healthy places that people want to live in and that are more attractive places for businesses to invest in. It would also generate significant public savings, not least through a reduced need for healthcare.

1638. Ms Ferry: There are two issues to discuss. First, a developer could reasonably be expected to invest in and pay for one infrastructure need that arises as a result of a development. The second issue, which my colleague from the Institution of Civil Engineers mentioned, is that several developments in an area could each supply a small amount to a pot. They could then deliver something that is beyond what is reasonable to ask one developer to pay for but that has a community benefit because it is linked into the community plan. I want to be clear about whether both those can be delivered under clause 75 or whether we need something else or a slight rewording of the clause.

1639. An issue was raised at this morning’s session about the ongoing management of matters such as green infrastructure. In England, I believe that it is possible through the infrastructure levy to allow a commuted sum to be handed over. That is then invested and allows ongoing management costs, so it is not just for the one-off development of one piece of infrastructure.

1640. Ms O’Connor: Concurrent with this process, we are looking at the regional development strategy and the mechanism for dealing with the failure of the market to provide infrastructure to allow economic growth of sub-regional centres such as Downpatrick and many others in the North of Ireland. That is essential. There is no point trying to grow and develop sub-regional centres in the absence of a mechanism that will cope with particular issues, including those that Mr McShane mentioned, and market failure or the fragmentation of land assembly.

1641. The Chairperson: Thank you. Do not forget to say your name, please, for recording purposes.

1642. Mr Patrick Cregg (Woodland Trust): I reiterate what my colleague James Orr from Friends of the Earth said. The Bill provides an opportunity to do something in more than just the immediate vicinity of a proposed development. It also provides an opportunity to create a fund that a borough council could use in a more strategic way. Therefore, matters that are wider than those in the catchment area of the development could be covered. For example, an inventory of all the significant trees in a borough would be a good use of some of that money. That would mean that we know what is there and what needs to be protected.

1643. The Chairperson: That is a very good plug.

1644. Ms Doherty: Our view is that article 40 has probably been underused in the past. It focuses on roads infrastructure and creates uncertainty for developers, because it is negotiated after. We support the community infrastructure levy and further consideration of it. We request that consideration also be given to the definition of the term “infrastructure". The definition needs to be broadened by looking at, for example, the enhancement of open space, civic amenity sites and other community amenities in the area in question.

1645. Mr I Wilson: I have a couple of points to make about article 40 and the community infrastructure levy approach. It is necessary to look at the scale and type of development, the yield that that will bring and the benefits to the community. That needs further investigation. The levy-type approach takes away many of the individual challenges that are associated with negotiating article 40s site by site. However, it is more complex to establish and administer.

1646. I will leave the following questions with the Committee to consider. How should the levy, especially its scope and scale, be embedded in the development plan? What is the timing of its payments or drawdown? What purposes could it be used for? How will claims to the fund be administrated? Finally, should someone not also deliver on the claw back arrangements?

1647. In these significant and difficult economic climates, that arrangement should not be rushed into. Perhaps the Committee should consider the Scottish model, under which the arrangement has been deferred.

1648. In conclusion, we also expect that many of the applications will be regionally significant. Therefore, local authorities would ask that the Department reflect the local development plans in its consideration of how the negotiation of the community infrastructure levy would be implemented.

1649. Mr Pollen: I urge some caution. We have reservations about the concept of levying additional taxes and charges on businesses. In this case, the suggestion is that they would be contributions to some form of hypothecated infrastructure fund. Although in many ways, a lot of the arguments here are well made and we would support them, such a fund would need to be hypothecated and should not just be a general taxation on development. Otherwise, it would sound very much like a stealth tax on business. Therefore, we would urge realism and caution in that situation.

1650. I would also like to have better clarity on the definition of a developer. For example, is it scale based? I think that James Orr’s points about small developments being set outside that proposal were well made. We are urging caution on that. The number of federation members in the construction industry whose businesses have gone to the wall in the past couple of years is substantial, and there is not a fat margin in a lot of those developments that could just be raided to pay for other things that cannot be afforded through taxation.

1651. Ms Catherine Blease (Northern Ireland Housing Executive): Housing associations could be considered to be developers, but given that they are non-profit-making organisations, we would like them to be exempt from a tax on social or affordable housing units. I think that clear definitions should be set out of what a developer is if it is non-profit making.

1652. When considering the community infrastructure levy and councils’ powers, perhaps a regional levy could be set, meaning that each council would charge the same amount for developers. That would mean consistency across the whole region, with the result that there would be no competition between those areas that were setting lower charges so that they could get more development into their area. I think that that type of cross-council infrastructure should be considered.

1653. The Chairperson: I will take one more point, and then I will open the Floor to members to see whether they have any points to make. Go on, Claire; it has been a good day, so I will let you go on.

1654. Ms Ferry: I have one quick point to make. Section 210 of the Planning Act 2008 in England and Wales allows for an exemption for development by charities, so that might be something to consider.

1655. Mr McGlone: Again, I am picking up threads of the discussion, which I thank people for. The issue boils down to the community infrastructure levy or fund, or whatever it is called; Roger just referred to it. A lot more detail needs to be put into precisely what that is. Those of us who deal with planning applications are aware that, floating around the edges in the ether, there is also the notion of the developer contribution to consider. We need to have absolute clarity as to precisely what is being sought by those processes, because I am already confused about the precise distinction between them.

1656. The community infrastructure levy seems to be fine in principle, but when we overlap that with a developer contribution, I think that we could hit problems and glitches, not least for the new councils that will be landed with the system. A lot more thought has to go into precisely what is being achieved, certainly by the community infrastructure levy, and what is being thought about the developer contribution in other policy areas or Departments. If those roles are not very clearly defined, it could lead to serious problems, not least in inhibiting development of the economy. Again, Roger referred to that, and we will be talking to a lot of people later today about that. I am sure that that will come up time and time again in my constituency. People will ask what the politicians are doing to encourage and support development.

1657. We have to bear that strongly in mind. I do not entirely take the Housing Executive’s point that housing associations are stand-alone organisations. Many have considerable assets at their disposal, so although they are non-profit-making, they have a considerable asset base. It might be worth giving more thought as to how that asset base can contribute to the levy or fund.

1658. I am anxious to know whether anyone in the Hall knows the formula that would give me a clear understanding of the distinction between the developer contribution and the community infrastructure levy. I would be delighted to hear it.

1659. The Chairperson: Obviously, the Department will have an opportunity to respond to that valid question.

1660. Professor S Christie: I understand that the developer contribution is for the development of things that are intimately and totally required in the development. For example, if a larger road is needed to access the development, that would come from the developer contribution. The community levy is for greater benefit that has been accrued as a result of the increase in value to the site by the granting of planning permission. That would go into a fund that may not be directly used on or required by the site. Therefore, it is much more general. The developer contribution is very specific and is for things that have to be in the site.

1661. Mr McGlone: I can see this leading to complications on the ground, for example, where there are multiple developers on one site. I am not entirely clear about the outworkings of this and where it is supposed to take us. The principle seems to be fine, but there is quite a bit of overlap in how each is to be defined and kept separate, while making sure that they are both are of mutual benefit. I envisage some complications with it, and I need it clarified. I would rather have one process run well than two run poorly.

1662. The Chairperson: I can let another speaker ask a teeny-weeny supplementary question.

1663. Mr Pollen: I echo what Patsy said. The other issue in teasing this out is to ask when any contribution must be made. It is an upfront cost that has to be borne before any profit is shown. However, the current financial climate illustrates how that could be an issue.

1664. The Chairperson: I want to recap on some of the points that have been made.

1665. Let me remind everyone here that many of those issues have been teased out in Committee Stage, and there is another opportunity to do that again today. Once we have taken on board and compiled all the points that have been made, we will liaise with the people who are most concerned, including those who think that it is a good idea and those who have reservations about it.

1666. I want to touch on some points so that the Department can respond. There was talk about community charges, and references were made to the Southern model. Other issues include article 40; checks and balances; a financial model and a fit-for-purpose Planning Service; the notion of community planning, which is an idea that has raised its head on a number of occasions in the Committee; and the developer contribution or levy. A valid point was also made about the fragmentation of land and the whole idea of land use. The Scottish model was mentioned, and Professor Lloyd talked to the Committee this morning about that. The issue of housing associations was also raised. Mr McGlone and Catherine Blease responded to that. That is all food for thought for the departmental officials.

1667. The third element for discussion is the pre-application discussion or community consultation.

1668. Mr David de Casseres (Northern Ireland Electricity): I want to make some high-level comments on the important subject of community consultation. Northern Ireland Electricity is involved in the development and design of major strategic infrastructure projects that will have consequences for all Northern Ireland and, perhaps, the wider island as a whole. Planning is central to that process, so I am pleased to be able to speak about it briefly today.

1669. As many of you may be aware, there is a very significant need for major infrastructure to be built in to the electricity system over the next few years to allow for the integration of renewable generation across the island. That is extremely important. We are in the early stages of engagement in community consultation on proposals to strengthen and reinforce the transmission system by, perhaps, using 400 km-plus of new circuits over the next few years to handle that challenge. That is a significant development that will have to bring with it significant community consultation. Therefore, the matter under discussion is very important to us.

1670. When we look at the planning that all that will require in the future, we see a need for a strong and efficient planning system that will actually perform against the challenges that that will bring. We see a need for government to stream policy into the planning process, and we also see the importance of central control of significant major infrastructure. I know that the Bill provides for article 31 projects to be retained under central control, and I propose that we consider having an upper tier of such projects, of which there are a great many. However, it could not be claimed that all of them are of strategic significance to Northern Ireland as a whole.

1671. The final issue that I want to raise on the planning process before I talk specifically about pre-application consultation is the need for a process that sticks when decisions are made. Many people here will have concerns about that.

1672. NIE believes that pre-application community consultation is extremely important. Indeed, a better word than “consultation" might be “participation". We believe that it is extremely important to engage and discuss with communities so that they feel that they are participants in developments that take place.

1673. We believe that provisions for that are already enshrined in legislation such as that that deals with environmental impact. Given the need to demonstrate that alternatives have been examined and that they have been discussed and consulted on with communities at large, such provisions are already a fundamental part of the planning process for major infrastructure projects. Therefore, we do not think that compulsory pre-application consultation is particularly helpful, especially when it comes to major linear infrastructure, which may cross several council boundaries. We think that it will introduce rules and bureaucracy, which will create further delays. It will introduce uncertainties and costs. All those issues will be significant in the future.

1674. Another issue that I want to mention on community consultation concerns who exactly is the community. That is a significant issue. Although it may seem trite, it is actually a difficult question to answer. Recently, we have engaged as many people as possible on proposals for a major interconnector between Northern Ireland and the Republic —

1675. The Chairperson: Thanks for bringing that up, David. I was going to mention that.

1676. Mr de Casseres: I will not mention it any further. The reality is that, when in discussions with communities, it must be clear who the community is. It might comprise public representatives, council bodies and statutory consultees. People who live close to a development and who may be affected by it could be considered to be a community, and others who live quite some distance away and can see the development from their homes could also be thought of as the community.

1677. Therefore, setting rules of engagement, compulsory ones in particular, to require consultation introduces all sorts of potential complexities, pitfalls and areas of challenge whereby people who are regarded as communities — or, perhaps, who regard themselves as a community — do not feel that they have been adequately consulted. That needs to be carefully considered and the consequences need to be recognised. If we make things more complicated and more costly we will most certainly not be able to deliver the infrastructure that this country needs in the future.

1678. The Chairperson: I can answer the question about the North/South interconnector and community consultation, if you want, because it runs through my constituency.

1679. Mr Patrick O’Neill (Development Planning Partnership): First and foremost, we welcome the introduction of pre-application community consultation and the ultimate submission of community consultation statements, which is much needed in Northern Ireland. However, we do not think that the legislation should prescribe how that should take place. It should be within the gift of the applicant to determine the most appropriate mechanism for encouraging local communities to get involved, because it is not the case that one size fits all.

1680. We have talked a lot about the Scottish model today, and I am going to mention it again. Similar legislative provision was introduced in Scotland, which highlighted an issue that has not been dealt with in the Planning Bill — the differentiation between major planning applications and subsequent amendments to such applications. It may be prudent to amend the Bill to ensure that pre-application consultation is not required for applications for amendments to conditions or minor changes to applications. That will reduce the time spent and cost incurred by the applicant.

1681. We have no issues with pre-application notification, and we welcome that. However, we believe that it is unnecessary that a council should decide who should be consulted within the 12-week period. Depending on the number of consultees suggested, that could delay schemes needlessly. Alternatively, to avoid delay, there could be a facility to carry over some consultation processes once the application has been validated and is at the assessment stage.

1682. Ultimately, the requirement should be for effective engagement where it can be demonstrated that efforts have been made to inform and seek feedback from the community, as opposed to persuading and satisfying the community, because that is not always going to be possible.

1683. Mr C Bradley: I want to pick up on a few of the issues that have been mentioned. On the point that developers should be allowed to determine the form and nature of consultation, that is the situation that we have at the minute. Some of them are not terribly good at it, and that is why they often get into trouble. The proposal in the Bill, if it is properly implemented and if guidance is produced by the Department and by councils, will ensure consistency and clarity not just for communities but for developers. That is the point. We will all have more certainty about the form and nature of consultation, when and how it should happen and how it should be reported on. We will all know that, and, if that is so, we will all be working to the same rules.

1684. There is no duplication of consultation required for environmental impact consultation. We are not talking about a second consultation process. We are talking about a standardised, clear and transparent consultation process, which, once it is carried out, can be used to inform the environmental impact assessment and the planning application. It will serve both purposes. The Bill proposes simply that we have that transparency and consistency across a broader range of major and regional applications.

1685. Mr Orr: I absolutely share David’s concern about how consultation and participation get confused in Northern Ireland and about the huge challenge that faces us in trying to rejig the grid infrastructure to move us towards a more sustainable low-carbon electricity production system. I totally sympathise. However, my colleague made the point that this is very much in the interests of two groups, one of which is the developers. I completely share the frustration that, in many cases, consultation tends to be obfuscation. However, it is also in the interests of the planners.

1686. We need a renewal and a reinvigoration of the planning system and the role of the planner. This planning reform can set the planner in the middle of a facilitation debate between a whole range of different stakeholders. That is why it is absolutely crucial that it be led by the planners. I have no doubt that if the pre-application consultations are engaged with positively and courageously — not reactively, as happens at the minute, or from a defensive posture — and with the intention of getting people round the table, it will absolutely help bodies such as NIE to improve grid infrastructure in Northern Ireland.

1687. Ms Joan Devlin (Belfast Healthy Cities): Community participation is one of the core values on which the Healthy Cities movement was founded, and I very much agree with what Colm, particularly, has been saying. We support the introduction of pre-application consultation, and we see it as an important way to inform and involve relevant people and other sectors. I know that we have the debate about how to define “community" and community participation, but it is important that other sectors are involved in shaping development proposals. Pre-application consultation can help to ensure that development supports needs in relevant local areas.

1688. We want to stress that the Localism Bill currently going through the Westminster Parliament includes a significant level of detail on requirements for pre-application consultation, including format, content and acceptable publicity. For example, the Bill incorporates clauses where applicants must be able to contact the majority of people in an area and must provide a statement of how they have responded to consultation. Those can provide a ready-made and helpful model for Northern Ireland. Incorporating that detail creates both clarity and confidence for the public and can help to create an empowering, inclusive, high-quality and timely process and contribute to the wider impacts of planning.

1689. For example, we have recently been approached in an area in Belfast — an area of high deprivation — where planning permission has been given for a high number of fast food bars where there is already a high level of obesity. From our point of view, we try to make the links between planning and the impact on health and emerging public health issues. As was said earlier, consultation does not have to be costly. There are lots of very strong organisations locally or regionally that are very capable of carrying out consultation at a very low cost.

1690. My final point is that it is important to include a duty on the person conducting the consultation to take the responses and to demonstrate that the responses have been listened to and included in the final documentation.

1691. Mr Sore: I welcome the comments made by Friends of the Earth on the role of the professional planner who will be in the local council area. One of the functions of that planner is to advise the members of the council on the professional way to approach the community and the development potential. If there is to be a new type of planner at local level, which we do not have at present, that will really be a new form of planning. We, as an institute, are thinking about whether we will need to retrain planners in the way that they operate and work with the council members as their immediate boss.

1692. There is also a role for council members, because, at the end of the day, they are elected by the public to represent certain views. Therefore, the consultation needs to take place within councils, with councillors representing their electorate. This is about new ways of working. We have got to try to get out of the current system and think about the system that will be in place in 2015.

1693. Mention was made of definitions. One of the things that we have said in our submission is that there needs to be clarity. What is meant by “community"? What is meant by “developer contributions"? What scale should this be at? When is something regional and when is it local? There is an awful lot that needs to be clarified.

1694. In relation to some of the other legislation that has been coming forward and some of the PPS information, we have said that it may not be right to specify absolutely everything in the main body of the document. However, it is right that that be followed up with guidelines that give clarity on what is meant by “community" and “developer contributions". Good examples could be used in those guidelines, so we urge the Committee to ensure that work on clarity follows the Bill.

1695. The third issue is how to engage with the community. In England, the institute is debating the role of Planning Aid. Planning Aid was always seen to be the halfway measure, almost independent of the actual statutory planning regime. Communities could engage with Planning Aid, and Planning Aid would act as the interface between the statutory agencies and the local community. The Committee may want to consider something, not necessarily a copy of Planning Aid but something along those lines, where both a developer and the local community can go to an agency that will facilitate a community consultation. Let us face it; in Northern Ireland, we do not have a very good history of that. While there have been very good examples of big developers who carried out consultation very well and of local community and voluntary groups that assisted the communities in putting forward very good contributions, they have been piecemeal. We are looking for a system that can be applied across the Province.

1696. The Chairperson: I liked that wee dig at councils and councillors. Thanks very much.

1697. Mr Lewis Porter (Craigavon Borough Council): While welcoming the pre-application community consultation in general, we have concerns about the definition of “community" and the definition of the area impacted. We are concerned, because it is not necessarily just the area that is being impacted on by a development; communities on the other side of the town or borough in question will be impacted on. So, there is a wider community issue.

1698. There is also the cost of community consultation, both in terms of council resources and for the community groups themselves, which can suffer from “consultationitis". If people feel that their views are not being taken cognisance of, there is a danger of genuine community concerns dropping off and groups that are being consulted within the community relying on particular agendas that can give a negative slant on development in response to that community consultation.

1699. Mr Terry Bunce (Ards Airport): Licensed airports in the Province have a specific interest in the consultation process. Airports have a statutory requirement to maintain the integrity of the protected surfaces that surround them and their air traffic zones. To ensure that that process continues, licensed airports must continue to be consulted on all proposals within their air traffic zones. Consultation in that area should therefore be compulsory. We have no option but to retain that.

1700. Mr I Wilson: Lisburn City Council welcomes the pre-application community consultation. Anywhere where you front-load the process and shorten it at the back end will bring a little bit of certainty to the outcome. Our council is keen on clause 28(2), but we seek clarification on who is responsible for prescribing the form of the pre-application community consultation. That is not clear.

1701. The Chairperson: David, I am glad that you mentioned the interconnector and the consultation. Unfortunately, there was a lack of consultation at the start of the process, and different people have talked about it being reactive rather than proactive. Through this planning process we will see a more proactive approach to consultation. We have to strike a balance between proper economic drive and development and giving people an opportunity to participate in how land should be developed and land use in itself.

1702. The Scottish model was mentioned again. Perhaps it is not a case of one size fits all; we are not saying that. However, perhaps the Committee needs to go to Scotland to see exactly how the Scottish model is working. There was talk about developers and the idea of who should be consulted. I prefer to call it participation rather than engagement. It should be about participation; people should be given their say.

1703. Health was mentioned. It should not be just about land use; it should also be about place. Professional planners were also mentioned. Council capacity building and training are key elements. We talked about the wider community basis, which is correct. There is a specific issue about consultation being compulsory — was it fly zones in particular?

1704. Mr Bunce: [Inaudible.]

1705. Mr McGlone: I think that Mr O’Neill first suggested that we leave it in the gift of the applicant to determine the method of consultation. Most of us are here today because the current method of consultation has major shortcomings. Unfortunately, over the past month I have been involved in a couple of cases in which that was exactly the case: it was left to the applicant to determine, through an agent — who probably should have known better — the method of neighbour notification. That method was to not notify the next-door neighbour that a planning application was coming. That led to emotional distress. The best conclusion that we can have today is that the method needs to be improved.

1706. Mr Wilson from Lisburn City Council asked a valid question: who defines what the consultation should be? There will be certain strictures, but, as I listened carefully to what he said, that could conceivably vary from area to another. The Department could lay down guidelines, which could be developed by a council, but they will have to be adaptable to allow a wee bit of elbow room. The difference between urban and rural, for example — I envisage those types of situations.

1707. The Chairperson: I am delighted that you mentioned that, Mr McGlone.

1708. Mr McGlone: I need to mention it, because, as we heard earlier, we could be dealing with two different communities of place. I wanted to mention that one qualifier about the method of consultation by the applicant.

1709. Mr P O’Neill: Do not get me wrong: we are not against guidance being published on how consultation should be done. We welcome that, but we do not see a way of writing into legislation how it should be done. If there is guidance, the developers will follow it, but we do not see how it can be included in legislation.

1710. The Chairperson: We will now discuss the wee matter of third party right of appeal.

1711. Ms Carolyn Wilson (Mobile Operators Association): I thank the Committee for allowing us to come along and speak. The Mobile Operators Association represents the collective interests of the four UK mobile operators: 02, Vodafone, 3 and Everything Everywhere, which trades as Orange and T-Mobile. We represent them on health and planning issues.

1712. We all know that planning in the UK operates in the wider public interest and generally presumes in favour of development. The Planning Bill is based on that premise, and it proposes significant changes to the current planning system. A number of the Bill’s proposals are similar to provisions that operate in Scotland and in England and Wales.

1713. Third party right of appeal is not a new consideration. In 2003 and 2004, it was consulted on in Scotland as part of what became the Planning etc. (Scotland) Act 2006, so there was a lot of consultation, discussion and research. More recently, prior to the general election, the Conservative Party included it as an issue, but the recently published Localism Bill has dropped it from planning system reform in England.

1714. We operate in a plan-led system, and, generally, development is undertaken in accordance with needs that are identified in development plans. It is noticed that the Bill proposes a system that is based on local development plans, similar to the system in Scotland and the local development frameworks in England. The Bill proposes that the local development plan itself will be pre-empted by a statement of community involvement, which will be subject to stakeholder engagement. That system seems to work well in local development frameworks in England, which have been on the go since 2004 or 2005.

1715. All of that results ultimately in a democratic, agreed outcome for a local plan. Consideration of introducing third party rights of appeal could be seen as a way of delaying and derailing a community need that has been accepted through the local development plan process. Research in countries that have such rights shows that, quite often, it is the design element of a development that is subject to appeal rather than the principle, which is usually enshrined in the development plan itself. Therefore, linking back to the previous subject, it is clearly preferable to engage a community at an early stage.

1716. Front-loading of the system has been mentioned a lot, and the Scottish model has gone down that route. A lot of work has been put into Planning Advice Note (PAN) 81, ‘Community Engagement’, and people have spoken about clear policy guidance on how community engagement should be carried out and what it should be. PAN 81 is a good document to have a look at for that.

1717. The gentleman from the Royal Town Planning Institute mentioned Planning Aid. I am a volunteer for Planning Aid, which does good work with communities in informing and advising them on the background on which to engage with the local development plan process and in development management. So, again, that may be a route to think about.

1718. Before the legislation changed in England, Wales and Scotland in 2001, the Mobile Operators Association’s experience was that the system was not very transparent. That changed in 2001, with the operators’ voluntary adherence to the ‘Ten Commitments to Best Siting Practice’. As part of that, and to make the process more accountable and transparent, the association agreed to carry out extensive consultation on proposals for base stations.

1719. One way in which we do that is through the annual roll-out plan, which is submitted electronically and jointly each year to every UK planning authority. At the moment, it goes to regional DOE bodies. Obviously, following devolution, it will go to local councils. Basically, it gives a heads-up on operators’ proposals for the following 12 months, together with existing base stations and those that have planning consent. Roll-out plans can be shared with the public and with elected members.

1720. As part of this commitment, the operators agreed to carry out wider consultation when site-specific base station developments are identified. Again, there has been a lot of talk about how to identify “the community". We do it through pre-application discussions with the community and local planning authorities, in the form of a consultation plan drawn up by our agents that is then, hopefully, agreed with the planning authority and local key stakeholders. We are quite happy to carry out further consultation when it is identified. Over the past eight or nine years, we have found that that method of front-loading consultation is a preferable way to engage with communities and take their concerns on board.

1721. Often, concerns are raised that are not necessarily to do with planning matters, so the consultation process provides an opportunity to address those matters and to inform people better. Where there are obvious planning matters, open discussion often leads to different siting and design proposals for base stations. In the past, I have certainly been involved in a few cases in Northern Ireland where that happened. Consequently, based on our experience, we do not think that third party appeal rights would give communities or people the basis on which to inform development proposals.

1722. We must recognise that, sometimes, the planning process can be hijacked by individuals or specific interest groups who do not necessarily have the wider community’s backing or interest. I have been a planner for 20 years, in local authorities and in the private sector, and it is evident to me that if a community, or people within a community, are indifferent to a proposal or support it, they tend not to get involved in the process. It tends to be those groups or individuals who object to the proposal. The concern with third party appeals is that development might be slowed down and delays in the system might be incurred because of possible self-interest by individuals, rather than people who have the wider community interest behind them.

1723. With particular reference to mobile telecommunications, we must bear in mind what is enshrined in the current planning policy statement, PPS 10, namely that the telecommunications infrastructure must develop in a way that continues to provide Northern Ireland with world-class telecom services that allow it to compete. At the same time, the environmental impact must be kept to a minimum. PPS 10 recognises that modern telecom systems have a vital role to play in everyday life, both socially and economically. Our members’ concern is that third party appeal rights would significantly slow the process down and add additional cost.

1724. Telecommunications technology is fast moving. The infrastructure has evolved very quickly from 2G to 3G, and it is evolving all the time. If the planning system is not fit for purpose or efficient and it does not take account of that, or if there is unnecessary delay, that infrastructure may not be deployed in Northern Ireland and may deployed by our members in other parts of the UK where third-party appeal rights have been resisted.

1725. Our development industry has certain locational and technological requirements, and those are given good development control advice by PPS 14 and PPS 10. What concerns us about telecommunications infrastructure and other development is that any additional costs due to third-party appeal rights and, more importantly, significant delays in the system would direct investment elsewhere in the UK. With such economic uncertainty at the moment, it may not be the best time to think about introducing third-party appeal rights. The social and economic benefits of development and, in particular, communications infrastructure are important, and we do not want to direct that elsewhere.

1726. The Chairperson: I gave you some leeway because you made it all the way from Scotland. I am sure that the other witnesses will not mind.

1727. Ms Monaghan: Belfast Healthy Cities welcomes the opportunity to speak to the Committee today. For those who might not know us, Belfast Healthy Cities is a partnership that works to improve health and well-being for people in Belfast and beyond. We do that through intersectoral collaboration to improve the wider physical and social living conditions. Belfast is a World Health Organization designated European healthy city. Among the core teams’ work that the World Health Organization has designated for its 90 member cities are equity and healthy urban environments.

1728. First, third-party rights of appeal are an important part of a comprehensive planning system, and we support their introduction in Northern Ireland. Third-party rights of appeal complement the general focus on community engagement in the Bill and provide a safeguard for communities to make sure that any material and relevant concerns are heard, and they provide a measure of natural justice. They also provide a way of making absolutely sure that development is in the public interest and is focused on what people in Northern Ireland need. In doing that, they strengthen trust in the planning system, which is important for a timely and effective system and process.

1729. Secondly, with reference to the previous witness, we think that third-party rights of appeal can act as an incentive to invest in pre-application consultation. They can make sure that people have a more open platform for debate, and, more importantly, they can ensure that all relevant and sound evidence is presented at that stage. It might be worth noting that the Republic of Ireland has had liberal third-party rights of appeal for some time, and it is clear that that has not acted as a deterrent to development there.

1730. Thirdly, third-party rights of appeal can improve the quality of decision-making and can contribute to developing prosperous, healthy and sustainable communities because they add an extra layer of scrutiny. That aspect would be particularly important in the transition period when planning powers are transferred and capacity and experience are being built. It might be appropriate to consider introducing third-party rights of appeal as a transitionary measure to be reviewed at a later date. There might be other ways of limiting the rights. You could consider including award of costs for frivolous or vexatious appeals as a deterrent.

1731. There might be a role for planning mediation, which is currently not mentioned in the Bill, in offering a way for parties to look at a conflict before a decision is made. Again, that would be a way of supporting better decision-making.

1732. In summary, third-party rights of appeal are a way of strengthening transparency and accountability in a comprehensive, modern planning system and are in keeping with the ethos of community planning. Such appeals would also enable all stakeholders to participate in the process with greater confidence. Having the confidence to believe that they can have a say in decisions helps people to be engaged, proactive and responsible, which reduces the risk of vexatious processes and conflicts that are quite tangible.

1733. That feeling of being involved supports a sense of well-being, which is really important for enabling people and communities to look forward with confidence. It might not be immediately obvious, but planning has a fundamental impact on people’s health and well-being. A simple example is the impact that it might have on the job opportunities open to people, because planning determines where homes are in relation to jobs. In the same way, planning determines how dependent people are on cars and what access they have to physical activity and to green spaces by deciding where to set aside those spaces and how big they should be.

1734. We think that identifying well-being as a desired outcome of planning would help to make all those issues more visible and would create a good opportunity to steer development in such a way that is in the public interest and supports quality of life, health and well-being for people in Northern Ireland. Third-party rights of appeal are by no means the only of way doing that, but they would make an important contribution to it.

1735. The Chairperson: Planning Service is well aware of my views on third-party appeals. If you look up the Hansard report of debates in the Assembly Chamber, you will see exactly how I feel about it.

1736. Mr I Wilson: Lisburn City Council has always been consistent in its approach to third-party rights of appeal. In response to question 67 of the 2009 consultation on planning reform, the council stated its resistance to the introduction of third-party appeals. The front-loading of the community consultation process allows for an additional opportunity to deal with any uncertainty that might exist. However, if anyone is thinking of bringing in third-party appeals, they should perhaps consider that the examiner or the PAC would need to consider awarding damages for third-party interventions so as not to open the floodgates to delays to the decision-making process.

1737. Ms Clare McGrath (Community Places): I wish to make a few points on this topic. First, the majority of respondents to the 2009 consultation on planning reform supported the right to third-party appeals. We support a limited third-party right of appeal, because it would ensure that developers conduct genuine participation and a meaningful pre-application consultation. It would also enable communities to feel that their comments would be given more weight in pre-application consultations.

1738. Third-party appeals should be introduced in a two-stage process. First, there should be a soundness test to determine whether an appeal has sound enough grounds to go ahead. Secondly, the process should happen over a five-year period as a confidence-building measure during the change in local government, and it should then be reviewed.

1739. Evidence from An Bord Pleanála in the Republic of Ireland demonstrates that 46% of formerly decided appeals in 2008 were by third parties only. Of those, 99·3% were wholly or partially changed — 39·5% were refused planning permission and 59·8% were granted with revised conditions. That evidence supports the need for and the impact of third-party rights of appeal in better decision-making. It also refutes claims that they are frivolous.

1740. Developers, through their right of appeal, have the unfair advantage of having the opportunity to influence how policy is made through establishing precedents. Consequently, that informs subsequent decision-making in favour of developers. The public, who have no third-party rights of appeal, have no such opportunity.

1741. Mr Cregg: I have been talking about third-party rights of appeal for as long as I have been on this planet. I find it unbelievable that, in a democracy, we should stack the cards in favour of one player. It is like a person entering a poker game in which they agree to give their opponent all the coloured cards while they take the lesser cards. If we are to accept the arguments from our Scottish friend and Lisburn Borough Council that the pre-consultation is sufficient for everybody to air their fears and get their points across, would we then consequently say that, rather than just removing a third-party right of appeal, we should remove all rights of appeal if the developer has been part of that consultation in the first place?

1742. Mr Orr: I share those comments. I have read all 200 and whatever clauses of the Planning Bill, and there is very little that is innovative, visionary or different. A lot of the provisions are cut and pasted from previous legislation or borrowed from other jurisdictions. If the Committee and the Assembly want to make one fundamental difference to planning reform in Northern Ireland, they can do what is right for natural justice and give us limited third-party appeals. We are not opening floodgates or inviting vexatious applications. We do not need to borrow from Southern Ireland and learn from some of its mistakes; we can invent something that is courageous and innovative for Northern Ireland. I commend that to the Committee.

1743. Mr McShane: Having agreed with Friends of the Earth earlier, I now have to oppose its view. The Institution of Civil Engineers sees the judicial review process being used by retailers purely as an excuse for delaying the implementation of approvals. Our fear is that opening up the floodgates to third- party appeals would simply allow that process to be extended and would delay the implementation of much-needed facilities. However, if the Assembly decides that third-party appeals are to be introduced, they should be introduced with a very short time frame so that they do not delay the implementation of facilities.

1744. Ms Blease: As regards the point that was made earlier, an appeal would be far quicker and far less costly than taking a judicial review through the courts. Contentious decisions would be resolved a lot quicker.

1745. Councillor Michael Carr (Newry and Mourne District Council): I endorse the comments from the Woodland Trust and Friends of the Earth. If it is right for one side to have an appeal, it is equally right that the other side should have an appeal. Planning Service makes recommendations to either approve or refuse, and 100% of the refusals can be appealed. None of the applications that are approved can be appealed by the people who are affected. I have seen numerous occasions on which they should have had that right. People have suffered and are still suffering from poor or inappropriate planning decisions.

1746. I had promised myself that I would not speak today, but I feel strongly that third-party appeals should be included in the Bill and that there should be discussion about them. I also have confidence in the delivery of the Planning Bill. The Bill cannot be taken in isolation without looking at governance legislation and at how councillors behave with regard to the Planning Service. We are not yet in a position to do that; it is a bit like putting the cart before the horse.

1747. We need to know where we stand as councillors and, more importantly, how it will be funded. The Planning Service looks as though it is being run down. We in Newry and Banbridge are waiting for a development plan that is 11 years late. If it is ever passed, it will have two or three years to operate. We are involved with the electronic planning information for citizens (e-PIC) project, which is four years late and has cost twice as much as was first planned. It needs to be made clear what councils will inherit.

1748. I enjoyed today’s presentation. Councils do good things, and they could contribute to much better planning. Planning responsibility should be transferred, but it has to be done in the right order.

1749. Ms Ferry: Miss Wilson from the Mobile Operators Association said that, if we have a plan-led system, developments should be fine if applications go ahead in line with the plan. That is exactly our point. Everybody here who argued against third-party appeals talked about floodgates and said that everyone would appeal. As I understand it, many of my colleagues in environment and community non-governmental organisations asked for a limited third-party right of appeal. To prevent vexatious appeals, there are ways of limiting who can come forward, and we have outlined those ways in our responses.

1750. One example is a planning application that is contrary to a development plan. It is for exactly that reason that we need to have a limited right of appeal. Other examples might be when a local authority has an interest in a planning application; or when a professional planning officer has recommended that planning permission be refused but has been overruled by the local council. There are elements that we all understand and that we know can be included to limit third-party appeals to avoid huge delays in the planning system.

1751. We have to remember that judicial review is costly and beyond the ability of many groups to undertake, even when they have a valid reason to do so. As many people said, the proposal would allow much greater access to justice and equity across the system.

1752. Mr I Wilson: Lisburn City Council supports the current planning appeals procedure where it gives the opportunity to a third party that has been actively involved in the process under consideration to appear at the PAC to put their case across. In that case, the PAC is an independent arbitrator. I would not like anyone to think that Lisburn City Council does not support the current system.

1753. The Chairperson: Your position has been clarified and recorded, Ian; you are safe.

1754. I thank everyone for their contributions. We now move to answers to all of them. [Laughter.] By the time we leave the room we will have everything sorted out.

1755. Before I give the Department an opportunity to respond, do Members wish to speak? I am sure that Mr Wilson is not keen on mobile phones; I do not think that he uses one at all. Do you want to say anything about that issue?

1756. Mr B Wilson: No. We are here to listen rather than to speak.

1757. The Chairperson: That is OK. I was just giving you the opportunity.

1758. Mr McGlone: Although supporting in principle the third-party right of appeal, we have to consider the soundness test. Some of us have experience of inordinate delays in planning applications, of an appeal being brought to a conclusion one way or another — whether that be approval or refusal — or when a third party uses an appeal to negotiate for a bit of extra money for a ransom strip or sight line. A soundness determinant, a wee bit like in social security where you have the right of appeal to a social security commissioner but only on certain grounds, would be useful if a wee bit more meat on its bones could be portrayed.

1759. Mr Wilson mentioned the award of damages. I understand third-party appeals when they arrive at the point of costs being determined; however, damages could lead to something quite different. If the proposal was for a factory or housing development, by the time the appeal came in two to three years’ time damages could be considerable and are usually a matter for determination in the courts. The distinction between costs and damages is something that we need to factor in if we go down the route of third-party appeals. However, there is certainly much food for thought here today.

1760. The Chairperson: I invite the team from the Department to respond. We picked out four broad topics, although many issues came up. I ask the Department to comment on as many of the issues raised as possible.

1761. Ms Maggie Smith (Department of the Environment): It has been an extremely interesting afternoon. We appreciate the time that everybody is putting in to commenting on the Bill.

1762. Points such as guidance and secondary legislation came up consistently. People said that there was not enough detail in the Bill about the practicalities of what needs to be done. In parallel with our work on the Bill, we are finalising proposals for subordinate legislation. It is useful to do the two in parallel because is it interesting and useful to hear reactions to the provisions in the Bill. There is a great deal of subordinate legislation, and our aim is to get it out for consultation as soon as possible after the legislation has been finalised.

1763. The preparations that councils need to make were touched on several times. We are working on pilot projects that will involve the Department, councils and all those who will be involved in the transfer of functions, whenever that may occur. As we know, the date has not yet been set for the transfer, although it will be set by the Executive in due course. The pilot projects will test the arrangements that will apply when powers eventually devolve to councils and they will involve councillors, council employees and those Planning Service employees who will transfer to councils working closely together until powers transfer. They will examine capacity building and all the arrangements that are involved in the transition.

1764. The first issue that was discussed today is the independent examination of development plans and appeals. Various issues were raised: whether OFMDFM should pay for additional commissioners; planning appeals; the call-in and soundness of plans; and issues about clauses 15 and 16. I will ask Angus to pick up on those points and to clarify the issues that surround them.

1765. Mr Angus Kerr (Department of the Environment): Thank you very much. The independent examination of plans and the use of the PAC and independent examiners is not meant to cast doubt on the impartiality or independence of the Planning Appeals Commission; the Department wants to use the commission as the first port of call in development plan examinations or appeals. However, in the past when there was a huge backlog or a large number of plans arrived at the same time, the Planning Appeals Commission had difficulties in dealing with them. We anticipate that that may also be the case when powers transfer, because, for example, development plan functions will transfer to 11 new councils, all of which will want to hit the ground running with their new plans. The Minister wants to be able to step in and ensure that, if there is a problem, there is another way of ensuring that the independent examination of plans will move forward.

1766. The approach will be based on the normal approach that government takes to appointing independent people, with applicants being examined to ensure that they are properly qualified and independent. The approach will mirror that taken during the regional development strategy in which some of you may have been involved and which used independent people, rather than the PAC, to conduct an examination in public. That approach, which is also used by DRD when examining major road proposals, would be used only as a last resort, and the Department will ensure that all proper procedures are in place so that those appointed are independent and appropriately qualified. The process of the independent examination of plans that those individuals would be expected to undertake would be the same as is undertaken by the PAC and would be set out in guidance.

1767. Related to that is the issue of balance between the power of councils and that of the Department in the Bill, and, specifically, on the independent examination in the binding report.

1768. The approach in the Bill, which the Minister wants to take, is that the Planning Appeals Commission or independent examiner will undertake the independent examination and will report to the Minister. There will then be an opportunity for the Minister to issue the binding or final report for councils to adopt. That is born out of the unique circumstances of Northern Ireland, where it is deemed that the appropriate person or system within which that should be done is the democratically accountable system in the Assembly and the Minister himself as opposed to its being left to independent examiners or the Planning Appeals Commission, which is not accountable in that way. It is not envisaged that the Minister will be involved in changing the report to a significant extent. It will be well bounded in his role to ensure the consistency and good planning of the region. Those are the Minister’s regional objectives.

1769. Other issues cropped up, including soundness. The requirement for objectors to demonstrate the soundness of their proposals will be brought through in subordinate legislation and guidance but not in the Bill. The approach is likely to focus on the procedural tests undertaken by the team preparing the plan: its consistency with central government’s plans, policy and guidance; the coherence or effectiveness of a plan; and how it is justified.

1770. One of the other issues mentioned was broader intervention and intervention powers. Powers are peppered throughout the Bill allowing the Department to intervene. They are there as a safeguard. They are similar in many ways to powers in other jurisdictions where a similar planning system has been in place. They are not viewed as powers that the Department will use daily; they are availed of in a limited sense and are rarely used in other jurisdictions. That will be the likely outcome in Northern Ireland as well. It is envisaged that councils will take up the responsibilities given them and move forward with them.

1771. I probably missed one or two things, but I hope that you will come back to me if I did. That is an overview.

1772. Ms Smith: I appreciate that it looks as though a huge amount of power is retained by the Department. That is because a great deal of space in the Bill has to be devoted to safeguards. As Angus said, it is only in extreme circumstances that the Department will step in to do the job of a council. Our clear expectation is that councils will do a very good job; it is unlikely that the Department will ever have to step in and use those powers.

1773. The Chairperson: Are there any other comments? Some members have to leave. If anyone needs clarification, now is the time to ask. Be brief; I will allow only five minutes.

1774. Mr John Walsh (Belfast City Council): Will the Department prescribe the circumstances in which the Department or the Minister will, in any of those cases, step in and utilise the powers of intervention that they will have under the Bill?

1775. Ms L Jackson: I will deal with the query about the calling-in of a planning application for a major development, for example, from a council. The Department will take over the planning application side.

1776. Mr Walsh: Or a local plan.

1777. Ms L Jackson: It is the same principle. We are preparing a direction on call-in, which will be consulted on as well as the subordinate legislation. We will stipulate criteria whereby a council will have to notify the Department of a particular type of application. We envisage that that would happen where there is a significant departure from a local development plan or where there is a significant objection from a statutory consultee. The process is limited and prescriptive. In that way, attention is focused on those important applications that will be referred.

1778. The Chairperson: OK. I thank the officials for their responses. Normally, the Committee is stuck in room 144 when it takes formal presentations; today, however, was very productive, and I thank all those who participated. I know that many of you have presented written submissions, and if you need to contact the Committee we will respond to you. The Committee Stage of the Bill will continue and a transcript of this event will be circulated to all participants in the next few days for comment. The finalised transcript will be made available on the Committee’s Planning Bill web page. The content of that transcript will feed into the Committee’s report on the Planning Bill, which will be laid before the Assembly later this month.

1779. I thank the Assembly officials and reporters who transcribed the event, Assembly broadcasting for providing the recording service and the catering and support staff for their help today. Thank you all for coming.

27 January 2011

Members present for all or part of the proceedings:

Mr Cathal Boylan (Chairperson)

Mr Patsy McGlone (Deputy Chairperson)

Mr Trevor Clarke

Mr Danny Kinahan

Mr Alastair Ross

Mr Peter Weir

Mr Brian Wilson

Witnesses:

Professor Sue Christie
Ms Claire Ferry

 

Planning Task Force

Mr Aodhan O’Donnell

 

Consumer Council

Mr Colm Bradley
Ms Clare McGrath

 

Community Places

Mr Arthur Acheson
Professor Greg Lloyd

 

Ministerial Advisory Group

1780. The Chairperson (Mr Boylan): We will move straight to oral evidence on the Planning Bill. The first two participants are not here. I welcome Sue Christie and Claire Ferry from the Planning Task Force. We have five briefings today, so, although I will give you a certain amount of latitude, we have to try to stick to time. We have a big afternoon ahead of us.

1781. Professor Sue Christie (Planning Task Force): Thank you very much for giving us the opportunity to speak to you this morning. The Planning Task Force is a loose grouping of environmental and community organisations working together on all aspects of planning. For the past couple of years, we have been concentrating on various aspects of planning reform. The comments that we will be discussing have been agreed by all members of the group, although other specific comments will be raised by specific members. Obviously, that will be gone into in greater detail this afternoon, as it has been in written submissions.

1782. The Planning Bill is an extremely important piece of legislation, and we need to get the framework right to improve the situation for many years to come. We need to think in the long term to give the Bill the best chance of setting the solid foundations that Northern Ireland needs. The Bill needs to go beyond words. It needs to be operational and practical, so that the Committee’s intent is actually carried out by the planners, understood and agreed by local authorities, and supported by all people in Northern Ireland. Time is of the essence. It is a huge Bill, and there is very little time. However, we need to get the fundamentals right. If necessary, details can be amended, but they need to be set out in the Bill at this stage.

1783. There are some aspects of the Bill that need modification in order to achieve those goals. Planning needs to have a very clear and specific purpose detailed in the Bill. We suggest that the Bill should state that the goal of planning is to secure proper planning, community well-being and sustainable development. We need to fully embed and clarify what sustainable development is and how it is to be delivered. The Bill should require the Department to exercise its functions with the objective of “securing" sustainable development; “contributing to" is not adequate.

1784. We need to include a duty to consider climate change and energy implications for all development, especially with regard to energy security and energy prices in Northern Ireland. There needs to be an established and clear statutory link between local development plans and community planning. One way to secure that, and to ensure that development is truly sustainable, would be a community infrastructure levy which provides a clear mechanism to support and compensate local communities.

1785. We feel that the introduction of limited third party right of appeal is necessary to ensure fairness and parity for developers and communities. Pre-development consultations are welcome, but they will need guidelines, monitoring and an appeals process. In order to be effective and be seen to be effective, and for communities to feel that they have a true voice in the planning process, we feel that third party right of appeal is necessary.

1786. Finally, there are some aspects of supplementary information that will be required. PPS 1 is urgently needed to clarify and explain the purpose of planning and securing sustainable development. Councils will require guidance on the details of standards and procedures, especially around community planning, development control and local plans. Those are new areas for communities and councils, and they will need some advice to ensure that there is a level playing field throughout Northern Ireland to allow individual councils to do better and to ensure that all meet the baseline.

1787. Subordinate legislation will be required, and should be progressed, to ensure the delivery of the Planning Bill to its maximum potential. We would be delighted to answer any questions.

1788. The Chairperson: Claire, would you like to add a few words, or are you happy enough?

1789. Ms Claire Ferry (Planning Task Force): I am happy with Sue’s summary and am here to help answer the questions.

1790. The Chairperson: Thank you very much.

1791. We have received a number of responses, and some of the cases have been highlighted. You mentioned the third party right of appeal. In all the debates that we have had on the Bill, both here and in the Chamber, people have talked about front-loading the system. However, we may be looking at back-loading the system if we leave in an appeal mechanism. There may be some merit in some kind of appeal mechanism. Is there any model out there that we could introduce into the Bill that you think would work?

1792. Ms Ferry: As you know, many of our organisations have called for third party right of appeal at the various stages of the consultation on planning reform. A good deal of evidence has been compiled by many of the non-governmental organisations, including a specific project in England in 2002 which looked at third party rights of appeal in many different countries, from Ireland to Australia, and a number of models. Other research has been done in Northern Ireland, looking at comparable systems, for example in Ireland. There is the scope, and a supporting case, for a limited third party right of appeal.

1793. I want to stress that we are not suggesting an absolute free-for-all. We are looking for a limited third party right of appeal under certain circumstances, such as when a planning application is contrary to an adopted development plan — where the development plan process has been gone through and a planning applic