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Official Report (Hansard)

Session: 2007/2008

Date: 07 November 2007

COMMITTEE FOR FINANCE AND PERSONNEL

OFFICIAL REPORT

(Hansard)

Building Regulations (Amendment) Bill ( Northern Ireland) 2007

7 November 2007

Members present for all or part of the proceedings:

Mr Mitchel McLaughlin (Chairperson) 
Mr Mervyn Storey (Deputy Chairperson) 
Mr Roy Beggs 
Dr Stephen Farry
Mr Simon Hamilton 
Mr Fra McCann 
Mr Adrian McQuillan 
Mr Declan O’Loan 
Mr Peter Weir

Witnesses:

Mr Philip Irwin ) Department of Finance and Personnel 
Mr Gerry McKibbin ) 
Mr Bill White )

The Chairperson (Mr McLaughlin):

The Committee has agreed that the next agenda item, the Building Regulations (Amendment) Bill ( Northern Ireland) 2007, will be held in closed session.

Mr Beggs:

I declare an interest as Carrickfergus Borough Council’s representative on the local area building control committee.

The Chairperson:

The Committee is joined by Philip Irwin, head of properties division, Department of Finance and Personnel (DFP), Gerry Mc Kibbin, building regulations branch, DFP and Bill White, principal technical officer, building regulations unit, DFP. Gentlemen, I welcome you to the meeting and invite you to share your thoughts with the Committee.

Mr Philip Irwin (Department of Finance and Personnel):

We wish to brief the Committee on the Building Regulations (Amendment) Bill ( Northern Ireland) 2007. The purpose of the proposed Bill is to amend the existing primary legislation governing building regulations — the Building Regulations ( Northern Ireland) Order (1979). We will do that by refining the powers, duties and rights of the Department, the district councils who enforce building regulations and those applying for building control approval.

As a general principle, the existing Order aims to secure the health, safety, welfare and convenience of persons in or around buildings, and to further the conservation of fuel and power. The most significant amendment that we have included in the proposed Bill is to extend those general principles to include the protection of the environment and the promotion of sustainable development.

There are then a number of more specific amendments to the Bill. Before going into detail on each of those, I will give the Committee some background on the consultative process that has been undertaken to arrive at where we are now. That process has been extensive. It commenced in early 2004, following ministerial approval to conduct a review of the Order that was granted in June 2003. Since then, there have been two public consultations. An initial consultation in the first half of 2004 invited comments on the existing scope of the building regulations framework in the broadest sense. A second public consultation followed in the second half of 2005, which invited comments on firmer departmental proposals that were tabled at that time.

In addition to the public consultations the Department also ran a number of stakeholder workshops for representatives of the building control function in the district councils and representatives of the construction industry. In early 2005, and again in autumn 2006, we presented a series of public seminars on the proposed technical amendments. Throughout the consultation process we have been working with the Northern Ireland Building Regulations Advisory Committee (NIBRAC) and keeping it involved in the process.

In late August and early September, officials met NIBRAC, the district council building control officers and industry representatives to discuss the most recent refinements to the proposed amendments. The consultation process has been extensive. In the initial scope we asked if we should look at revising the entire framework for building regulations. The general feedback said no but that changes should be made within the existing framework.

I will hand over, first, to Gerry McKibbin and then to Bill White, who will take you through the specifics of the changes that we are proposing.

Mr Gerry McKibbin (Department of Finance and Personnel):

Philip mentioned the principles of the building regulations, which are set out in article 5(5) of the Building Regulations ( Northern Ireland) Order 1979. They set out requirements for consideration of the health, safety, welfare and convenience of people in and around buildings, and the conservation of fuel and power. The proposals that we have put forward to amend those — and to expand the scope of them to include the protection and enhancement of the environment and the promotion of sustainable development — are similar to those that have already been implemented in England and Wales, Scotland and the Republic of Ireland. The raised profile of environmental issues has meant that people, in those countries, were keen to see that those issues were reflected in the building regulations.

In addition to changing those principles, we have amended schedule 1 of the Building Regulations ( Northern Ireland) Order 1979. That schedule lists those matters for which building regulations may be made. In that schedule we have now included such things as: security of buildings; sustainable use and management of water; and the use, reuse and recycling of materials. We have also amended some of the existing provisions to include consideration of low- or zero-carbon systems. The Bill also includes a definition of low- or zero-carbon systems that reflects the definitions in the Energy Act 2004, which lists a number of technologies that we perceive to be equivalent to low- or zero-carbon systems, and any other system for the purpose of reducing greenhouse gas emissions. It also lists the number of greenhouse gases that are currently recognised.

One of the changes to the proposals is a very small reference to how NIBRAC is put together. Under the current legislation, the Department seeks representatives of NIBRAC from professional bodies. We are changing the word “bodies” to the word “persons”. That may seem like a small change, but that will allow us to adhere to the Nolan principles that were set out for the appointment of public committees. It also meets the requirements that were set down in the guidance published by the Office of the Commissioner for Public Appointments in Northern Ireland. The legal definition of the word “persons” will still allow us to approach professional bodies. However, we will approach the bodies to ask them to invite their members to self-nominate rather than merely to provide us with two or three names.

Article 20 of the Building Regulations ( Northern Ireland) Order 1979 relates to civil liability. That article was never commenced. Initially, we had proposed in the amended Bill that that article would be revoked. The Executive will discuss that matter tomorrow, and papers have been circulated. The Office of the First Minister and deputy First Minister (OFMDFM) came back with some questions about that and asked whether or not we should revoke that clause. It perceived that leaving the civil liability clause in would perhaps encourage people to construct in accordance with building regulations. We had proposed tabling an amendment during the Assembly Stages of the Bill that would remove the revocation. However, we want to have a full consultation process on the proposals rather than commencing that. The wording of the existing article is not appropriate to the way in which building regulations have developed since the introduction of the legislation in 1979. We want to ensure that the full consultative process takes place with the main stakeholders — in particular, with building control.

The Bill also introduces a new criminal offence of deliberately, or negligently, producing false information in support of an application to purposely, or recklessly, mislead building control. The background to that came as a result of representations made by Belfast building control, about a case with which it had dealt. An application had been submitted for a new building. During consideration of that application, building control received a second application for an existing building with regard to disabled access. The requirements of building regulations are less onerous for existing buildings than they would be for new buildings. Once it became clear that there was a deliberate attempt to build a new building to less onerous requirements, building control had to step in and take action. There was nothing in the existing legislation that would have made the proposals in the second application an offence. Following building control’s representation, we decided to examine the matter and, subsequently, introduced the new offence into the legislation.

Under Building Regulations ( Northern Ireland) Order 1979, the Crown is not bound by the requirements of the building regulations. We will commence the binding of the Crown to the substantive requirements of the regulations — in other words, the technical aspects of the regulations to which every Crown building will have to adhere. There is also a change of definition for “Crown building”. At present a “Crown building” is defined as a building in which there is a Crown interest. That definition will be changed to mean a building that is occupied by the Crown.

That means that any building that has been built, regardless of whether the Crown is interested in occupying it at some stage, will still have to adhere to the full requirements of the regulations.

The legislation would impose two new duties on district councils. DFP will ask the councils to give consideration to the special characteristics of protected buildings when determining an application. Our definition of protected buildings is similar to that used by the Department of the Environment (DOE) in its planning legislation. In other words, that is a building that is listed by DOE — and the Environment and Heritage Service keeps lists of such buildings — or one that is inside a conservation area, as designated by DOE.

I will bring the Committee up to speed with developments on the Executive papers that have been issued. DOE asked whether the scope of the Bill could be expanded to include matters such as areas of townscape character, local vernacular buildings, and local landscape policies. DFP’s feeling is that we should not expand it at the moment. As a matter of course, building control currently considers applications for all aspects of listed buildings or buildings that are protected under other policies. Widening the scope of the primary legislation would have negative connotations. We feel that increasing the number of buildings that could be protected would introduce a get-out clause. Buildings could be altered or amended as a way of getting around the need to apply the requirements of regulations that would have to be applied in existing circumstances. Therefore, we propose that the definition of protected buildings remains as it is under the DOE’s strict guidelines and that as a matter of course, building control will apply the policies that are produced by the Planning Service and the Environment and Heritage Service to the buildings in those district council areas.

The second, and final, new duty that would be put on district councils would legislate for something that many councils do anyway. Under the new legislation, councils would be required to keep a register that records applications for building control approval. Through regulations, the Department would prescribe the information that should be held on that register. That would allow us to establish databases throughout the district council areas. For example, we could require that information on issue performance is kept, and we would have a source of information if we needed to produce reports for Europe, if that were necessary. Most district councils already do that as a matter of course, but we are trying to achieve a uniformity of approach across all district council areas in order that the regulations will allow us access to any information that is held. The legislation would set out the requirements for the method and medium with which the information can be held and for how long it can be held.

That is a brief look at the proposed changes to the procedural processes that are involved with building regulations. Bill White will now explain the technical changes that are to be introduced in the Building Regulations (Amendment) Bill ( Northern Ireland) 2007.

Mr Bill White (Department of Finance and Personnel):

There are around four main technical changes. First, article 5(1)(b) of the Building Regulations (Northern Ireland) Order 1979 requires the Department to give a deemed-to-satisfy solution for every regulation that it currently has. The regulations are written in a functional format. In other words, they set a performance standard that each part of the building should achieve. The deemed-to-satisfy provisions that the Department currently provides set the benchmark by which building control can judge whether those standards have been achieved. That process is becoming restrictive in the modern-day construction industry. It is becoming virtually impossible in some circumstances to give a deemed-to-satisfy solution that covers every eventuality, in every type of building in Northern Ireland.

The Department therefore proposes to follow the route that the rest of the British Isles has taken, which is to move towards a guidance-notes system. Technically, there is no difference between the deemed-to-satisfy solution and the guidance information that is provided. However, the subtle difference is that the guidance document will provide the train of thought that the designers should follow when they design a building, especially particular aspects of that building. As well as providing guidance on the process that they should follow, the document will give the designers examples of solutions for typical types of buildings, for instance, simple buildings. For example, Part R of the Department’s technical booklet, which provides deemed-to-satisfy guidance, refers to access and use of buildings. The foreword to that document, which is outside the deemed-to-satisfy text, shows how the various deemed-to-satisfy guidelines have been formalised.

We have found that people tend not to bother reading that foreword; they go straight to the body of the text, follow the deemed-to-satisfy system, and try to find, as quickly as possible, the solution for their building. It is becoming very difficult to provide one solution that fits all situations. Therefore, the guidance system would mean that the information that is in that foreword would be incorporated in the main body of the text, and the relevant paragraph would describe the rationale behind the Department’s suggested solutions.

At present, if the deemed-to-satisfy route is followed, building regulation approval is guaranteed. The hands of building control officers are also tied in that they cannot ask the builder to do anything over and above what is stated in the deemed-to-satisfy solution. However, under the guidance system, in specific circumstances building control can ask the builder to go that bit further in the design of their building to satisfy the various requirements. As I have said, the rest of the British Isles, and including the Republic of Ireland, follows the guidance system. The technical information that they use is exactly the same as that which we incorporate in our documents.

The next technical amendment is to article 8 of the 1979 Order, and it grants an additional power to district councils to type approve superstructures. At the moment, article 8 permits the Department to approve particular types of buildings, thus complying with the regulations. However, that article has never been commenced. The intention is that the article will be amended in order to change that and to give district councils the power to give type approval to prescribed matters. Generally speaking, those prescribed matters involve the superstructure of the building: everything from ground level upwards can be given type approval. That is in recognition of the fact that certain designers in the country design houses or buildings that they intend to build throughout Northern Ireland — it saves them having to reapply to each council area every time that they want to build there. The council in whose area the building is located will be required to consider matters that are specific to the site, that is: foundation, access, and drainage issues. That council will be responsible for checking those points.

The council that gives type approval to the superstructure will issue a certificate to that effect, giving details as to what is covered by the type approval. Under current legislation, one of the problems with article 8 of the 1979 Order is that one council cannot tell another what to do. The Bill will mean that that will not apply. Clause 6 of the Bill, which amends article 8 of the 1979 Order, has been drafted in such a way that means that that issue can be dealt with under RPA legislation, which will be debated by the Assembly in the future, rather than under building regulations.

Article 12 of the 1979 Order covers the types of test that district councils can require to be carried out to ensure conformity with building regulations. Again, that article has never been commenced. We intend to commence it, but we will also change the scope of it so that the tests for which a council can ask are prescribed in the building regulations. Those tests will be non-destructive. They will include: investigation to determine what sort of soil will be built on; airtightness tests, which are required under Part F of the Building Regulations (Northern Ireland) 2000; and the testing of air conditioning systems, etcetera, which are a requirement of the European Energy Performance Directive.

Last, but not least on the technical side, is article 18 of the 1979 Order, which relates to the serving of contravention notices. If a council discovers that something has been built that is contrary to building regulations, it will issue the builder a contravention notice. Having received a contravention notice, that builder is legally bound to take action to correct the defects in their building. Article 18 states that the district council must issue that notice within 18 months after the work in question has been completed.

That in itself is pretty straightforward. However, in the past, district councils have had difficulty with ascertaining when the work in question was complete. Therefore, there have been disputes about whether that date was outside the 18-month period of issue of the contravention notice. The Department has endeavoured to deal with that problem through the amendment to the article, and thereby tie district councils to issuing contravention notices to the date of completion of all the work. There will be a mandatory requirement on the builder to notify the district council of the date of completion. That starts the clock ticking: after that date, the district council can issue a contravention notice if it needs to. Those are the technical issues with the Bill.

The Chairperson:

It seems that that area is problematic. How does one define completion? Sometimes, outstanding work needs to be completed on properties that have been handed over or that have come into use.

Mr White:

That is the issue. Even simple matters can create problems; for example, when someone wants to build their dream house, it may take three years for them to build the house because they want to do it themselves in their spare time. Therefore, the construction period can drag on for a long period.

In its regime of site visits, building control does not carry out a clerk of works-type service. It is not on-site every week to check the progress of work. It visits sites to check on the major implications of the building structure. Obviously, key to that is the final inspection, when all the work is finished, to sign off the building and to confirm that the building in question complies with building regulations. It is at that stage that building control, sometimes, picks up defects. It will say that something is wrong and that it must issue a contravention notice. The developer will say that it cannot do so because that part of the work was completed two years ago or 18 months ago. Therefore, there is a dispute about when the work was finished. The Department is trying to avoid such disputes by tightening up that regulation.

The Chairperson:

Will the regulations deal with problems, which I am certain that all elected representatives have come across, with regard to group housing or development schemes that have associated works such as access roads, foot pavements or lighting?

Mr White:

It will deal only with matters that are related to the building regulations. Those that are linked to access roads, etc, are outside the scope of the building regulations. However, issues that concern access to a property from the boundary of the site, such as disabled access, are matters for building regulations and, therefore, they would deal those issues.

The Chairperson:

Therefore, the regulations do not actually deal with the difficulties that some people have when the developer simply moves on and they are left with unresolved issues for a considerable period thereafter?

Mr White:

Not necessarily.

Mr Weir:

I want to ask about a couple of issues, particularly about how they affect local government. I see that a couple of additional duties have been proposed, and I appreciate that you have indicated that district councils are already practicing some of those functions. Having said that, has there been any assessment of what additional burden those duties will put on councils? For example, what will be the additional burden on their resources? It may be negligible, but if an assessment has been carried out, has any consideration been given to the provision of some form of additional resources for local government on that basis? It seems unfair that the cost of additional duties will have to be borne by ratepayers for the reason that central Government have simply thrown those duties at councils and told them to get on with it and pay for it themselves.

Mr McKibbin:

As one might imagine, the Department has a close working relationship with the building control officers in the district councils. They have been aware of the proposals for some time, and they have actively participated in their development. They seem confident that all the proposals can be met by the resources of each building-control section. As has already been mentioned, the Bill generally legislates for the functions that are already being performed by district councils with regard to registers and protected buildings. It does not propose anything new per se; rather, it legislates for functions that all 26 councils already carry out as a matter of course.

With regard to registers, the Bill homogenises the approach that is taken by all 26 district councils and ensures that they all keep and have access to the same information.

The legislation will identify that protected buildings will be required to have particular characteristics and will therefore need particular consideration by district councils. However, all the district councils already do that, and they have supported those proposals during the consultation process.

Mr Weir:

I assume that granting powers to district councils to type approve superstructures will sort out the problems that sometimes arise with building control regulations, such as trying to work out where the exact dividing line is between building control and planning. I presume that granting type approval powers to district councils could avoid their having to stray into getting involved in planning.

Mr McKibbin:

It could.

Mr Weir:

I appreciate what you have said, given that new councils could potentially be up and running by 2011. When RPA is fully rolled out, there may be ways of sorting out any difficulties with type approval.

However, I am concerned that this type approval — if the legislation is passed — would take effect fairly quickly.

Mr McKibbin:

Commencement of type approval is one issue that we will be considering. We have been discussing with building control whether we need to see what new structures RPA establishes and what additional powers and duties it will confer on building control.

Mr Weir:

I am concerned that, for example, Fermanagh District Council could grant type approval for a particular proposal, and the builder who is involved in that project could then show up in North Down Borough Council area stating that they have been given type approval by another district council and that there is nothing that can be done about it. That situation may not arise, but it would take any level of discretion —

The Chairperson:

That is a theoretical possibility.

Mr Weir:

Yes, it is a theoretical possibility. However, it could happen in practical situations. It seems that a builder could get type approval in one district council area, and any opposition that they face from another council would become null and void, given that the latter council’s building control would have no powers to constrain that builder. I have some reservations about that.

Mr White:

During our discussions with building control on that type of issue, it proposed to establish a panel. The legislation will require councils to have discussions with prescribed people before granting type approval. For instance, if someone submitted an application for type approval for across three council areas, it would make sense for whatever council receives that application to discuss it with the other two councils. Therefore, consensus could be achieved.

I accept that that process will be voluntary. However, building control is talking about establishing a type-approval panel of building-control officials who will consider all applications. That group could then give panel approval for those applications.

That panel’s opinion does not currently carry any legal clout; the panel simply makes a recommendation, and it is up to each district council whether they accept that recommendation.

Mr Weir:

Could that be incorporated into the legislation?

Mr White:

It could be incorporated into other legislation.

Mr Weir:

I understand what you are saying regarding three councils getting together if an application is made that would affect the three areas. My concern is that a situation could arise in which an application is approved by one council and the builder goes subsequently into other council areas that have no input at all.

Mr White:

That cannot happen. Any application for type approval will have to specify where one intends to build a particular structure. It would be onerous for someone to say that they are going to build a house anywhere in Northern Ireland, given that the structure of a house that is built on the north coast is totally different to the structure of one that is built elsewhere.

Mr Weir:

From a practical point of view, for example, if I were a builder who had received approval to build a particular type of house that would be acceptable in north Down, Ards and Belfast, and I wanted to build houses in Lisburn, would I need to start the application process again?

Mr White:

Yes. You would be issued with a certificate with the house type approval, which would say that that type of house had been approved for construction in the places that you had specified. It would also specify any particular issues that would be relevant to that structure.

Mr Beggs:

I too seek further clarification on that issue. I am aware that in England, where building control operates outside local councils, there is downward pressure on costings and, probably, standards. People in the private sector seem to simply employ whoever will do the job most efficiently but not necessarily to the highest safety standards.

It is important that a mechanism exists to ensure that there is joined-up thinking as regards type approval of superstructures. You seemed to say that that would be done voluntarily. Has it not been built into the legislation that such approval must be agreed collectively through building control? For example, if someone makes a mistake, we would not want a precedent to be set and find that such an error becomes the norm, with builders continuing to build a structure that had mistakenly been issued with type approval. How will you ensure that errors are not replicated?

Mr White:

The legislation will say that, if a mistake is found after the council has issued a certificate, that council can amend the certificate. The council will be able to say that it granted type approval for the type of building that was required, but that it subsequently discovered a mistake. It will then amend the certificate for type approval.

Mr Beggs:

Why should joint co-operation between councils not be formalised?

Mr White:

The Department has been advised that it cannot do that. The building regulations that will support the amending Bill will say that the council, when considering type approvals, must consult with certain listed bodies. However, we cannot force all councils to accept co-operation.

Mr McKibbin:

Part of the difficulty lies with where statutory responsibilities fall. For local government, they fall under DOE, but for building regulations, they fall under DFP. Therefore, anything that would need to be put in place to establish the statutory requirement to accept another council’s decision would have to be done under DOE regulations.

We understand from consultation that building control is keen to have that power put in place, and it is keen to pursue DOE to ensure that the provisions that arise from RPA will give councils the statutory obligations to co-operate. Building control is also keen to establish the bodies that Bill White mentioned to ensure that consideration is given to type approval by a wide range of building control officers, particularly those who will be affected by the type approval in question.

Mr Beggs:

In principle, the legislation is the correct way to proceed. It is a waste of resources to have several people checking the same issue many times. Ultimately, the customer will pay for that because the cost is passed on. However, there must be an appropriate means of ensuring proper scrutiny and joined-up thinking. That must include ensuring that a lower standard is not widely imposed.

Mr Storey:

Following on from that, the numbers of people who inspect properties must be considered. You have set out the policy proposals that have and have not been developed. However, there seem to be more of the latter. If we examine the purpose of the amendments, has a great deal of work and consultation been done to achieve very little? Although the changes will be meaningful to the overall purpose of the legislation, are many proposals not being developed?

Would you like to see reference to the RPA, for example? Given that the RPA contains statutory regulations that are the responsibility of DOE, when will they be brought to the same level that the building regulations have attained? Do we now have a package that will add value to the overall control within building regulations?

Mr P Irwin:

I think that we have. Many proposals relate to relatively minor issues, but major issues are also addressed, such as the introduction of the promotion of sustainable development and the ability to legislate in that area. The proposed change from a deemed-to-satisfy system to a guidance-based system is also a major issue and is one of the primary reasons for introducing the amending Bill. The Department discussed many other issues that were raised by different people, but we decided not to incorporate them into the Bill. However, the major issues are covered, and I see the areas that were not incorporated as minor issues.

Mr McKibbin:

Some of those minor issues relate to the subordinate, not the primary, legislation, and those will be considered and consulted on when the Department carries out a full review of its subordinate package based on the changes that are being introduced. Any ideas will be drawn up as appropriate.

Mr F McCann:

Similar to other members, I think that the proposals make sense. You spoke about the possibility of straying on to the road that is covered by clerks of works and others. Do the proposals allow building control officers to go into estates, for instance, that have been built recently to check that the work for which planning permission has been applied has been carried out? There are serious problems and difficulties with that, and you talked about the 18-month run-through period in which a district council may issue a contravention notice. There is also a problem with builders forfeiting retentions: they feel that the retention is so small that they can walk away from the job without returning to complete it, and some of the work that has been left has been atrocious.

Mr McKibbin:

Under the Building Regulations (Northern Ireland) Order 1979 building control officers and district council officers are entitled to enter and inspect premises to satisfy themselves that the regulations have been adhered to and that there are no contraventions.

Mr White:

The difference between the two pieces of legislations is that if a builder has contravened the building regulations and a contravention notice has been issued to him, they have a legal responsibility to correct those contraventions. Mr McCann mentioned retentions. If a client decides to keep back a 10% retention fee from a builder — with whom he has a contract — and states that the builder will not receive the money until the job is completed satisfactorily, the builder may decide that it will cost them more to go back and fix the few small things about which the client is pestering them and be content for the client to keep the 10% retention fee. That is not permitted under building regulations: the builder is legally required to complete the job, and, if they do not, the council will take them to court. A court judgement will be made on the contravention, and the builder will have to do something about it. Furthermore, the builder will be fined for not complying with the regulations.

Mr F McCann:

Unfortunately, that does not always happen. In some cases, builders leave entire estates in shabby conditions.

Mr White:

It depends on what the problems are. The building regulations exist for the health, safety and welfare of people, but they do not set a standard for the quality of work. You may disagree with how well a builder has finished a house, but they may have complied with building regulations in that the house is safe and does all the things that it is supposed to do. The building might not look the way that it should, but it might comply with the building regulations. Unfortunately that is one of those issues that cannot be resolved by legislation.

The Chairperson:

You indicated in your presentation how you responded to some of the issues that arose in the various consultations. Were there issues that you did not agree to proceed on, or any underlying conflicts that we should be aware of at this stage?

Mr McKibbin:

Building control raised a couple of issues at the most recent consultation back in August, to which we have given some consideration. Up until about three months ago there were clauses in the draft Bill containing provisions in relation to dangerous buildings. District councils currently operate under legislation that goes back to the 1850s in some cases, and building control approached the Department to see whether the Bill could be a home for legislation that would bring all that together. We drafted up various provisions to allow that to happen. However, building control came to the conclusion that you should be careful what you wish for. It considered the matter further and decided that there was more to be discussed and debated.

We agreed to take the provisions out of the legislation and to carry on the debate with building control on how best to bring that forward. The provisions that were put in did not sit naturally within building regulations anyway — they would have been separate to the actual regulations — and we have agreed to discuss that further.

Building control also raised an issue about demolitions and requested that provisions be put in place that would require any demolitions to be notified to it in advance. Its concern arose from the fact that there are currently various pieces of legislation relating to demolitions, but the enforcement, it felt, was inadequate and wanted some way to beef that up by making notification a requirement.

While the Department recognises that that is the case, there is a difficulty in preparing regulations or provisions within primary legislation, even to address issues that are seen as a shortfall of another Department’s legislation. We suggested that RPA might address the issue if some of the Health and Safety Executive’s duties and responsibilities were to go to district councils. The Department thought that it would be better to wait and see what happens with regard to RPA, and then building control could discuss with the parent Departments of the legislation how best to take that forward.

Building control brought up the issue of determinations. To give you a little background on that, in England and Wales a system of determinations and appeals operates. Those are two separate entities, but in Northern Ireland there is only a system of appeals. A determination in England and Wales happens when a district council or local authority and an applicant are at loggerheads over how a particular provision of the regulations should be applied. The applicant can approach the Department for Communities and Local Government for a determination on that. If a district council rejects an application, the applicant can approach the Department for a determination on the decision to reject. The Department charges a fee to the applicant for performing that function.

In Northern Ireland the Department provides an appeals mechanism for rejection of plans or application, and that provision is provided free of charge to the applicant. There is much more scope in allowing building control, as an organisation of professionals who have been doing the job for a long time and have the experience and expertise built up, to exercise its professional judgement on whether to go ahead with each application, rather than use the Department as a batting board to take the decision on. We already have a lot of consultations with building control on the technical aspects, background and intent of the regulations.

The Chairperson:

Who conducts the appeal?

Mr McKibbin:

Professionals from the building regulations unit in the Department conduct the appeal. There has been a suggestion that there should be a statutory time limit put on the Department within which it must conduct the appeal. At the moment there is none. Part of the difficulty is that the Department can only proceed when it is in receipt of all information relating to the application. As a matter of course when we receive an appeal for an application it is given top priority, and everything else is dropped until that appeal is heard.

The average time for conducting an appeal is two or three weeks at the most; however, there are some cases where information may not be forthcoming from the district council or from an applicant, which can extend that period. There could also be a particularly difficult technical matter brought in front of us that may best be resolved by setting up a tribunal between the two parties and the Department as the adjudicating body. That again could extend the time limit. We thought that, rather than putting provisions into the legislation to specify a time limit, the appeals should take top priority as a policy issue in-house.

The Chairperson:

If you had to resort to a tribunal, would that be free to the applicant?

Mr McKibbin:

Yes, it is in relation to an applicant.

A lot of the other policy proposals in the paper that were not taken forward were suggestions that were put forward by us or by building control. However, in discussion with the Office of the Legislative Counsel on the drafting, it was found that either the powers already existed in legislation but had not been applied in that way, or that the provisions were better suited to subordinate rather than primary legislation, and that is where they will be addressed. Those are the main issues that did not go forward. However, the most substantive issues appear in the Bill.

The Chairperson:

The issues brought forward today have all helped to streamline and improve the draft Bill. Will it go out to consultation?

Mr McKibbin:

At the time when the draft Bill would have gone out to consultation, we were approached to see whether we could streamline the process. Given the extent and the amount of consultation beforehand, we were asked to consider forgoing the consultation on the draft Bill and to put it through the Assembly process a lot quicker. We agreed to that, and the Executive also agreed that it should go before the Assembly without any further consultation. The major stakeholders are aware of the content of the draft Bill and have been kept up to speed during the process of developing and determining the policy. They have had a very active input into policy development.

The Chairperson:

When will the Bill be tabled?

Mr McKibbin:

The First Stage will be on 3 December 2007 and the Second Stage on 11 December 2007.

The Chairperson:

That seems to be it. No doubt when the Assembly gets its teeth into the Bill there may be a need to follow up on some issues, and the Committee will continue to do that. Thank you all very much.

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