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COMMITTEE FOR THE ENVIRONMENT Interim Report on the MINUTES OF PROCEEDINGS, MINUTES OF EVIDENCE, WRITTEN EVIDENCE Ordered by The
Committee for the Environment to be printed 10 October 2002 COMMITTEE FOR THE ENVIRONMENT: 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 NI Act 1998 and under Assembly Standing Order 46. The Committee has a scrutiny, policy development and consultation role with respect to the Minister of the Environment and has a role in the initiation of legislation. The Committee has power to:
Membership The Committee has 11 members including a Chairperson and Deputy Chairperson with a quorum of five. The membership of the Committee is as follows: Dr William McCrea (Chairperson)
1 Ms Patricia Lewsley
replaced Ms Carmel Hanna as Deputy Chairperson on 21 January 2002. TABLE OF CONTENTS Appendix 1– Minutes of Proceedings relating to the Report Appendix 2– Minutes of Evidence Appendix 3– Written evidence and other correspondence considered by the Committee LOCAL AIR QUALITY MANAGEMENT BILL – INTERIM REPORT 1. The Local Air Quality Management Bill was referred to the Committee for consideration in accordance with Assembly Standing Order 31 (1) on completion of the Second Stage on 17 June 2002. 2. The Minister of the Environment (the Minister) made the following statement under Section 9 of the Northern Ireland Act 1998: "In my view the Local Air Quality Management Bill would be within the legislative competence of the Northern Ireland Assembly." 3. The Local Air Quality Management Bill will make provision for implementing Council Directive 96/62 EC on Ambient Air Quality Assessment and Management. 4. The Bill will satisfy the Programme for Government (PfG) commitment to have in place, by May 2003, a policy and legislative framework to deliver Northern Ireland’s contribution to the targets in the UK Air Quality Strategy for England, Scotland, Wales and Northern Ireland. 5. Effective transposition of the Directive and implementation of the PfG commitment, requires the establishment of a statutory scheme affecting the relevant parties. The Bill, therefore, places a range of statutory requirements on relevant authorities (to be prescribed by Regulations). These statutory requirements are dictated by the responsibilities within the various agencies’ control and what is required to satisfy the Directive. 6. The stated purpose of the Bill is as follows:- (i) Implementing in Northern Ireland the requirements of the EC Directive (96/62/EC) on ambient air quality assessment and management. This will contribute to our achievement of the targets in the Air Quality Strategy for England, Scotland, Wales and Northern Ireland. (ii) Placing a statutory requirement on the Department to draw up an Air Quality Strategy for Northern Ireland (this may be a joint strategy with other Administrations). (iii) Placing a duty on District Councils to conduct reviews and assessments of local air quality. (iv) Providing powers for the declaration by District Councils of air quality management areas and the establishment of action plans, indicating the measures to be taken where there is a risk of the limit values and/or alert thresholds being exceeded. 7. Subsequent Regulations, made under the authority of the proposed Bill, will place in statute the objectives and targets contained in the Air Quality Strategy, which will reflect established EC limit values (objectives) and targets. 8. The proposals in the Bill are mainly based on those contained in Part I of the Environment Act 1995 which covers England, Scotland and Wales. In addition the Bill provides the Department with the power to fund air quality work and to recoup the cost of carrying out any air quality function on behalf of a District Council. It also ensures the public is kept informed of air quality issues such as the designation of air quality management areas. 9. The Committee Stage scrutiny of the Local Air Quality Management Bill began on 19 June 2002. In the light of the complex and technical nature of this Bill and the need for close scrutiny, together with the desire to consult widely and fully, the Committee agreed that the Committee Stage should be extended to 29 November 2002. The Committee agreed the following Motion seeking an extension to the Committee Stage of the Bill. "That , in accordance with Standing Order 31(5), the period referred to in Standing Order 31(3) be extended to 29 November 2002 in relation to the Committee Stage of the Local Air Quality Bill". The Assembly agreed this Motion on 8 June 2002. 10. The Committee had before it the Local Air Quality Management Bill (NIA 13/01) and the Explanatory and Financial Memorandum that accompanied the Bill. 11. In October 2001 the Department carried out a public consultation on the proposal to provide legislation for the management of air quality in Northern Ireland. The Department wrote to the Committee on 2 October 2001, forwarding the Consultation Paper and inviting the Committee’s comments (Appendix 3 – Annex 1). The Consultation Paper can be viewed on the Department of the Environment’s website: www.doeni.gov.uk. 12. On 10 January 2002 Department Officials attended the Committee’s meeting and gave a presentation on the principal provisions of the proposed Bill. 13. On 18 January 2002 the Committee submitted its response to the Consultation Paper (Appendix 3 – Annex 2). The Committee generally welcomed the proposed legislation being of the opinion that the proposed legislation is long overdue and must be progressed with all speed – "for too long, Northern Ireland has had to endure episodic air quality of the lowest standards and our cities have too often held the dubious title of ‘dirtiest’ in the UK". The Committee commented as follows: (a) "That consideration of the Paper highlights the inequality of fuel choice/poverty throughout Northern Ireland with only a part of the population having the option of Natural Gas. The Committee recommended that this should be addressed with sensitivity in any legislation. (b) The Committee expressed disappointment that the Department was of the view that there was nothing to be learnt from the implementation of the Great Britain legislation that would give Northern Ireland a strengthened strategy. The Committee voiced concern that the objective may be to have legislation in place to avoid potential infraction proceedings rather than the most comprehensive legislation possible to address issues in Northern Ireland. (c) During the course of their presentation, Departmental Officials referred to the proposed statutory requirements on both District Councils and Public Bodies, including relevant Government Departments. For some time, the Committee has been critical of the lack of real action against those polluters within the remit of Government Departments, for example, continued pollution of our waterways from sewage discharges. The Committee waits with interest to see how the proposed legislation will address such issues in relation to air quality. (d) It is widely accepted that a primary cause of air pollution arises from airborne particulates whether locally from coal, solid smokeless fuels or vehicle emissions or frequently from long range transported pollutants from throughout Great Britain and Europe. Unfortunately, it may be the case that no matter what is done within Northern Ireland it will be of little consequence if the United Kingdom Government fails to act decisively and rather than setting interim targets, it should act positively to achieve accepted standards." 14. The Department wrote to the Committee on 30 January 2002 addressing the concerns and points raised in the Committee’s response to the Consultation Paper (Appendix 3 – Annex 3). 15. On 3 April 2002 the Minister wrote to the Committee to inform Members of the outcome of the consultation exercise. A Table setting out a synopsis of the issues raised by consultees and the Department’s response was attached (Appendix 3 – Annex 4). A total of 36 responses were received, all of which welcomed the proposals. The majority of the responses have been met by clarification of the proposals without the need for any change to the proposals. Of the remaining 5 issues raised, 4 were rejected on the basis that the suggestions were separate policy issues and not a matter for the legislation, and one was accepted. 16. On 8 May 2002 the Department wrote to the Committee informing them that infraction proceedings had begun for late transposition of this Directive and advising that it is imperative that the Bill reaches Second Stage before the Summer Recess and completes its passage before dissolution of the Assembly next Spring. The Department also forwarded a copy of the Policy Memorandum on the proposed Bill (Appendix 3 – Annex 5). 17. On 16 May 2002 Department Officials attended the Committee’s meeting and gave a short presentation on the Policy Memorandum before answering questions from the Members. On the same date the Committee wrote to the Department with a number of outstanding questions/concerns from the meeting of 16 May 2002 (Appendix 3 – Annex 6). 18. On 22 May 2002 the Department wrote informing the Committee that the Minister had written to the Executive on 17 May seeking agreement to proceed with the introduction of the Local Air Quality Management Bill and that, subject to the Executive’s agreement, the Bill was scheduled for introduction on 10 June with the Second Reading on 18 June. The Department also forwarded a copy of the draft Bill together with the Explanatory and Financial Memorandum for the information of the Committee (Appendix 3 – Annex 7). 19. At its meeting on 13 June 2002 the Committee agreed to write to a number of key interested parties about the Bill. On the same date the Committee wrote to the identified consultees inviting comments/concerns on the specific terms of the Bill (Appendix 3 - Annex 8). 20. On 13 June 2002 the Department wrote in response to the Committee’s letter dated 16 May 2002 seeking clarification on a number of points (Appendix 3 – Annex 9). 21. On 18 June 2002 the Assembly agreed the Second Stage of the Bill. The Hansard record is at (Appendix 3 – Annex 10). 22. On 20 June 2002 Department Officials attended the Committee’s meeting and gave a structured clause-by-clause presentation on the Bill before answering questions from the Members (Appendix 3 – Annex 11). The Committee agreed to forward to the Department all responses received from consultees from its letter of 13 June 2002. Responses from the following were copied to the Department:
23. On 1 October 2002 the Department wrote to the Committee forwarding a copy of the allocations to District Councils under the Local Air Quality Grant Scheme for 2002/03. (Appendix 3 – Annex 20). 24. On 3 October 2002 Department Officials attended the Committee’s meeting and gave a structured clause-by-clause presentation on issues raised from recent consultation exercises on the proposals in the Bill. (Appendix 3 – Annex 21). Please note: the Minutes of Evidence in respect of the meeting on 3 October 2002 have not been examined by Members and Witnesses. (Appendix 2). 25. At the meeting of the Committee on 10 October 2002 it was agreed to order to print an Interim Report containing the factual evidence received to date. MINUTES OF PROCEEDINGS THURSDAY, 10 JANUARY 2002 Present: Rev Dr Wm. McCrea (Chairperson) Apologies: Ms C Hanna In Attendance: Mr J Simmons (Committee Clerk) The meeting commenced at 10.34 a.m. 5. Consultation Document on Proposals for a Local Air Quality Assessment and Management Bill in Northern Ireland Ms Helen Anderson, Ms Anne Hall, and Mr Nigel McMahon, Officials from the Department, joined the meeting at 11.42 a.m. After giving a presentation to the Committee on the above consultation paper; they answered questions from the Members. Mr McClarty rejoined the meeting at 11.48 a.m. The Chairperson thanked the Officials for their attendance and they left the meeting at 12.16 p.m. Agreed: That the Secretariat would prepare a draft response for consideration at next week’s meeting. REV DR WILLIAM McCREA [Extract] THURSDAY, 16 MAY 2002 Present: Dr Wm. McCrea (Chairperson) Apologies: Mrs J Carson In Attendance: Mr J Simmons (Committee Clerk) The meeting commenced at 10.40 a.m. 5. Local Air Quality Management Bill Ms Helen Anderson and Ms Ann Hall, Departmental Officials, joined the meeting at 11.52am. They gave a presentation and answered Members’ questions on the proposed Local Air Quality Management Bill. Key issues discussed included funding allocated to District Councils, Departmental action on consultation responses and limit values/standards. The Chair thanked the Officials and they left the meeting at 12.25pm. Agreed: The Committee to write to the Department on some outstanding questions and concerns with the proposed Bill. REV DR WILLIAM McCREA [Extract] THURSDAY, 13 JUNE 2002 Present: Dr Wm. McCrea (Chairperson) Apologies: Mr B Armstrong In Attendance: Mr J Simmons (Committee Clerk) The meeting commenced at 10.30 a.m. 5. Local Air Quality Management Bill The Committee considered the way forward on the Bill, which was introduced to the Assembly on 10 May 2002. Agreed: The Committee agreed to write to a number of key interested parties about the Bill. Members also agreed to consider appointing a Specialist Advisor to assist the Committee with the technical aspects/implications of the Bill. REV DR WILLIAM McCREA [Extract] THURSDAY, 20 JUNE 2002 Present: Dr Wm. McCrea (Chairperson) In Attendance: Mr J Simmons (Committee Clerk) The meeting commenced at 10.39 a.m. 3. Local Air Quality Management Bill Ms Helen Anderson and Ms Ann Hall, Departmental Officials joined the meeting at 10.40am. They gave a structured clause-by-clause presentation on the Bill and answered Members’ questions. Mr Armstrong joined the meeting at 10.48am. Mr Poots left the meeting at 11.21am. Mr Poots rejoined the meeting at 11.24am. Key issues discussed included Air Quality Strategy, District Council reviews, designation of Air Quality Management Areas and the Regulations which will flow from the Bill. The Chair thanked the Officials for a very helpful presentation and they left the meeting at 11.25am. Agreed: The Committee to consider the Bill further at a future meeting. REV DR WILLIAM McCREA [Extract] THURSDAY, 3 OCTOBER 2002 Present: Dr Wm. McCrea (Chairperson) In Attendance: Mr J Simmons (Committee Clerk) The meeting commenced at 10.30am. 5. Local Air Quality Management Bill Ms Helen Anderson, Mrs Ann Hall and Mr Dan Kennedy, Departmental Officials joined the meeting at 12.05pm. They gave a structured Clause-by-Clause presentation on issues raised from recent consultation exercises on the proposals in the Bill. Mr Armstrong rejoined the meeting at 12.22pm. Mr McClarty left the meeting at 12.30pm. Mrs Carson left the meeting at 12.35pm. Key issues discussed included Designation of an Air Quality Management Zone, Action Plans, funding and powers of Authorised Officers to enter residential premises. Mr Molloy left the meeting at 12.40pm and rejoined the meeting at 12.44pm. The Deputy Chair thanked the Officials and they left the meeting at 12.42pm. Agreed: To invite Officials to the Committee meeting of 17th October 2002 to address concerns of Members. REV DR WILLIAM McCREA [Extract] THURSDAY, 10 OCTOBER 2002 Present: Dr Wm. McCrea (Chairperson) Apologies: Mr F Molloy In Attendance: Mr J Simmons (Committee Clerk) The meeting commenced at 10.30am. Local Air Quality Management Bill Members considered a draft Interim Report on the Bill containing an account of the factual evidence received to date by the Committee. Agreed: That the Interim Report on the Bill is ordered to be printed. REV DR WILLIAM McCREA [Extract] MINUTES OF EVIDENCE MINUTES OF EVIDENCE Thursday 20 June 2002 Members present: Witnesses: 1. The Chairperson: You are very welcome, Ms Anderson and Ms Hall, to the Environment Committee. 2. Ms Anderson: I apologise for the background notes being late, but as we work through them some of the detail will be ironed out. 3. The Committee is familiar with the background to the proposed Local Air Quality Management Bill. By way of recap, the Bill is required to enable implementation of an EC Directive on ambient air quality assessment and management. It will also satisfy the Programme for Government and the Investing for Health commitment to have in place, by May 2003, a policy on legislative framework to deliver Northern Ireland’s contribution to the targets in the UK air quality strategy. 4. I will work through the Bill clause by clause and stop if members have any comments or questions. 5. Clause 1 states that the Bill contains provisions for implementation of the EC Directive. 6. Clause 2 requires the Department to prepare and publish a statement or strategy document setting out the air quality strategy for Northern Ireland. The strategy should contain policies for the assessment and management of air quality, which have been formulated to prevent or mitigate the effects of pollution. The strategy should also set out the European framework within which it must work and include standards and objectives for specific pollutants and a timetable for the achievement of those. It should also set out the steps and measures that Government are proposing to take. The strategy may be a joint one with other administrations or a Northern Ireland regional one. 7. In response to the consultation document, the Royal Town Planning Institute suggested that there should be joint responsibility between Departments to draw up an air quality strategy. However, responsibility has been placed on the Department of the Environment as the one best placed with regard to technical and policy expertise. It will involve other relevant Departments in the preparation of an air quality strategy. Subsection (7) requires the Department to consult relevant authorities when preparing or modifying the strategy, to include Government Departments. 8. The Chairperson: You say that the Department of the Environment should be the relevant Department, and the Royal Town Planning Institute suggested that a composite number of Departments should draw up the strategy. As the lead Department, will you take on board what the other Departments say and reflect that in the strategy? It is to be hoped that the Department of the Environment will not go off on its own and say "We hear you, but we are the final arbitrator". 9. Ms Anderson: That will not be the case, because the strategy must identify measures that Government will take. Those measures would be taken by Northern Ireland Departments as a corporate body, as opposed to just the Department of the Environment. There would be no question of the Department of the Environment overriding other Departments in that respect. 10. The Chairperson: If members want to ask a question, please do. In your summary you did not touch on the point in clause 2(1): "The Department shall as soon as possible prepare". How long is a piece of string? 11. Ms Anderson: A strategy is already in place. Northern Ireland is currently signed up to the air quality strategy for England, Scotland, Wales and Northern Ireland. 12. The Chairperson: So, how long is "as soon as possible"? 13. Ms Anderson: A decision will be made as to whether those words should be deleted from the Bill because the Department is already involved in a strategy; it is not futuristic. We signed up to a strategy in 1997 and it is reviewed continuously, so those words are somewhat misleading. 14. The Chairperson: Are you already in consultation with the other Departments? Do they know that this strategy has already been drawn up, and have they been given a copy? 15. Ms Anderson: Other Departments have been involved in the discussions on the strategy. Departments have been involved in discussions on introducing the Bill and putting the requirement for this strategy in statute. An agreement has been signed up to, but it does not have a statutory remit in Northern Ireland. 16. Mr A Doherty: The Bill has considerable implications for local authorities, and puts a certain responsibility on local authorities. Will the consultation include local authorities from the beginning? 17. Ms Anderson: The Department will engage in discussions with district councils over the summer. The Department will invite them to workshop sessions to explain the importance of the Bill and to take on board their views. There is also subordinate legislation and a set of Regulations that prescribe who the relevant authorities are. Other Departments and public bodies that we would view as stakeholders in the Bill are likely to be involved in the discussions. 18. The Chairperson: Will the Committee receive copies of any comments that district councils make? 19. Ms Anderson: When we take on board the comments from those various stakeholders, we intend to share a synopsis of the outcomes with you. 20. Clause 3 places a responsibility on a district council to carry out a review of the air quality, and the likely future air quality, within its area. Where a review has been carried out, an assessment should be made of whether the air quality standards and objectives are being achieved within a specified period. A district council will then be required to identify particular parts within its area where the standards are not likely to be achieved. 21. Mr Poots: How does that differ from the current situation in district councils? 22. Ms Anderson: District councils are engaged in a voluntary system; they conduct reviews and assessments, but there is no legal obligation on them. Clause 3 places a legal obligation on them to do what they are currently doing voluntarily. The last sentence indicates that the district council will then be required to identify particular parts, within its area, where the standards are not likely to be achieved. District councils are engaged in that part of the process, but have not yet reached the standard. 23. The Chairperson: Does each district council have the staff expertise to fulfil this Regulation? 24. Ms Anderson: As the Committee is already aware, all district councils are voluntarily engaged in undertaking these duties. In doing that, the staff have improved their skills. They have the baseline knowledge through their environmental health departments, which gives them the general expertise. That expertise has been built on, with the Department of the Environment funding training sessions and providing a freephone helpline number so that information is available to them. In addition, environmental health departments are in a grouping system, and the group officers have identified specialist pollution officers who have been assisting them. There is a good support mechanism, and to date district councils appear to be coping well. 25. The Chairperson: In clause 3, what does "shall from time to time cause a review" mean? 26. Ms Anderson: The intention is that subordinate legislation would prescribe what that relevant time would be. It could either be contained in guidance material, which would not have a statutory remit but which would simply make a recommendation about how frequently this would be, or it would be placed in the Regulations, which would specify a time period. 27. The Chairperson: We will review your answers to see if any other problems or questions need to be posed. 28. Ms Anderson: I appreciate that. It is useful for both of us to have this general overview. 29. The Chairperson: Twenty-four councils have taken up funding. Do the councils that have not taken up funding have the expertise? 30. Ms Anderson: The funding has been used mainly for capital works such as purchasing equipment. It has also been used to undertake specific studies such as fuel-use surveys. The technical know-how tends to reside with district councils, and the Department is supporting that through freephone information and in-house training. 31. The Chairperson: There must be a reason why councils have not taken up what could be regarded as important funding. If money is being used to buy equipment, surely councils would want to have it. Will you let the Committee know why two councils are not taking up the funding? 32. Ms Anderson: Yes. 33. Clause 4 refers to the designation of air quality management areas. It provides that where a district council carries out a review of air quality and finds that in a certain part of its area, air quality standards and objectives are not being met, or are unlikely to be met within the time period, it must make an Order designating that part of its area as an air quality management area. The district council is required to publish the Order. An Order may also be varied or revoked by a subsequent Order. 34. The Human Rights Commission, in reply to the consultation document, suggested that there should be more emphasis on informing the public and making information more easily available. Subsection (3) of the clause addresses the issue by requiring a district council to publish a notice of an Order and advise the public where a copy may be inspected free of charge. 35. The Chairperson: We have received a copy of the letter from the Northern Ireland Human Rights Commission. Members may wish to refer to it when considering the issue. 36. Ms Anderson: Several clauses, which we will come to as we work our way through the Bill, respond to the same concern. 37. Mr Poots: What will happen in an area that is designated? 38. Ms Anderson: Subsequent clauses indicate that the council and the relevant authorities have to develop an action plan that will detail actions that each body proposes to take to reduce pollution in that area to the acceptable standard. 39. Mr Poots: Will the relevant authorities include the Department of the Environment? 40. Ms Anderson: The relevant authorities will be specified by the Regulations, which will be subject to consultation. However, we propose that it would include bodies such as the Department of the Environment, the Department for Regional Development, in relation to Roads Service, and the Northern Ireland Housing Executive. The Regulations will be subject to consultation over the summer. 41. Mr M Murphy: Did the Human Rights Commission raise any queries about that? 42. Ms Anderson: The Human Rights Commission made the general point that it would like the Bill to include provision to increase public awareness to ensure that people are aware of the air quality in their area and what actions are being taken. We have included in the Bill, under various clauses and schedules, additional provisions that respond to that concern. 43. Mr Lewsley: Dunmurry had the highest level of pollution of any village in Northern Ireland, and Lisburn Borough Council put air quality controls in place. The problem is partly due to the fact that some of the area is not a smokeless zone. When you spoke about relevant bodies and action plans, what timescales are involved? Technically, the smokeless zone issue would be the responsibility of the Housing Executive. 44. Ms Anderson: You are referring to pollution being generated by domestic fires, some of which are in privately owned houses and others are in Housing Executive homes. There will be a set of Regulations made under the Bill that will identify various pollutants by name and will give a time frame within which the levels of pollution must be reduced. The statutory time frame will come from those Regulations. 45. The second part of your question relates to the Housing Executive, which has its own timetable for the fuel-switching process. The Bill works on the basis that it encourages the formation and continued operation of a partnership approach. In those circumstances, the district council would conduct its review and assessment and identify that home fire pollutants need to be reduced. The Housing Executive will then consider, with the district council, the level of reduction required and the time frame required for compliance under the Regulations, and the Housing Executive’s proposals for that period. 46. That partnership approach between the Housing Executive and the district council will mean that a satisfactory resolution can be reached. Where that is not possible, the matter would be referred to the Department of the Environment for arbitration. These other Regulations are not in place yet, but a hypothetical situation might arise where the Housing Executive proposes that implementation will take longer than the district council deems acceptable. The Department of the Environment will take on board the views of the Department for Social Development, as that Department funds the Housing Executive. The two relevant Ministers will consider that matter. If resolution were not achieved between the Ministers, the matter would be passed up to the Executive for determination. The ruling line of the Executive over the debate between Ministers is not contained in the legislation per se, but that is the framework in which this would operate. 47. The Department of the Environment’s intention is to draw up a draft protocol over the summer for Departments and the Executive, which would outline that arrangement and pass it round them for consideration. 48. Ms Lewsley: If the Regulation is not implemented in the required timescale, who enforces it? Is there a penalty and to whom does that penalty refer? 49. Ms Anderson: The legislation does not impose a penalty, but seeks to put the mechanism in place. The means of ensuring that actions are taken is by direction and the legislation has retained a power of direction on the part of the Department of the Environment. The Department can only direct district councils, as it would not be in a position to direct other Departments. That would have to be resolved as a simple Government matter. 50. Mr A Doherty: Is there either a maximum or, more importantly, a minimum size for a designated area? I am thinking specifically of areas in a town or where there is serious traffic congestion. I can envisage a great increase in demand for ring roads and bypasses. 51. Ms Anderson: There is no minimum size as such, but the district council and the relevant authorities would have to be confident that any area to be designated is large enough to ensure that remedial measures will reduce pollution significantly. A designed area can be just a couple of streets, it does not need to be half a district council area. 52. The Chairperson: We will carry on with the next clause. 53. Ms Anderson: Clause 5 sets out the steps the district council must take after it has made a designation Order. We have discussed some of this already. Within a 12-month period, as specified in the Regulations, a district council must supplement the information it has on the designated area by carrying out an assessment. The councils are currently doing that voluntarily. 54. The assessment of air quality should cover the present and the likely future air quality standards or objectives and whether they are being or are not likely to be achieved. The district council will then be required to prepare a report of the findings of the assessment. 55. Several respondents raised issues in relation to clause 5, such as the road transportation unit of the Department for Regional Development, which raised concerns that it would receive early warning of the need for an action plan. Clause 5, subsections (2) and (3), require district councils to send papers to relevant authorities. That will be subject to Regulation, but it is likely that that will include the Department for Regional Development. 56. Copies of specific papers, such as Orders declaring a designated area, assessment results and reports, together with paragraph 2 of schedule 1, which provides for the exchange of information between district councils and relevant authorities, would be expected to highlight early warnings of possible action required by each party. 57. Another respondent, the Northern Ireland Local Government Association, stated that it would be essential for public bodies to be required to fulfil their responsibilities for improving air quality. Subsection (4) requires relevant authorities, which may include Departments but will be determined by Regulation, to submit proposals for the action plan to district councils. 58. Subsection (8) provides the Department with the role of arbitrator, should there be a dispute between district councils and Departments as to the content of an action plan. District councils suggested the policing role in response to the consultation document. In its letter of 16 May, the Committee for the Environment referred to disagreements between district councils and Government Departments. That aspect is covered in the Department of the Environment’s reply of 13 June, a copy of which is in members’ information folders. Clause 5(8) specifically refers to that issue, providing that the Department of the Environment will arbitrate. However, where the arbitration involves two or more Departments, Ministers will be involved in discussions, as will, ultimately, the Executive. 59. The Chairperson: After arbitration, the Committee considered what action would be taken against a council that failed to act or a Department that failed to carry out its departmental duty. The Committee responded to that in a letter. The Department of the Environment replied that "the Department directed district councils to discharge their duty and that councils are statutorily required to comply with any direction. The Department may take the appropriate action and recoup the reasonable costs of doing so. The statute places mandatory duties on relevant authorities, which may include Northern Ireland Departments, and will be prescribed by Regulations. Where a Northern Ireland Department fails to discharge its duty, the High Court may, on the application of the relevant authority, declare unlawful the act or the omission." 60. When a Department’s act or omission has been declared unlawful, is the Department required under statute to comply with the direction? The statute is definite that councils have a statutory duty to comply, but is not definite about Northern Ireland Departments. The statute states that relevant authorities "may include Northern Ireland Departments". Therefore, the Department of the Environment may take another Department to the High Court. There is an open door for Departments, but a closed door for councils. 61. Ms Anderson: You are quite right. There is a distinction in the level of compliance with the duty that is placed on various parties. Councils have a statutory duty to undertake whatever is required of them, including undertaking a duty under the Bill. Departments are Crown bodies, and the provision in the Bill is the standard clause used in legislation referring to Departments. It is assumed that Departments will realise the onus that is on them and comply with the direction, but there is no statutory requirement on them to do so. 62. The Chairperson: With the greatest respect, you have to say that smilingly. When would one have the confidence to say that a Department "will" and that a council "shall" comply? Quite often, Departments are the offending bodies, yet there is nothing definite in the legislation to do anything about that. 63. Ms Anderson: In addition to the Bill, the Air Quality Limit Value Regulations (Northern Ireland) 2002, which came before the Committee several months ago and are now law, place a statutory duty on Northern Ireland Departments to achieve the European air quality limit values for a range of pollutants. 64. The Chairperson: To reinforce what is supposed to be included in the other Bill, would it not be beneficial to apply the statutory duty in this Bill to Departments? 65. Ms Anderson: This Bill places a statutory duty on district councils to undertake their duties, be they a review, an assessment or the declaration of an area. Councils will also be required to produce actions for inclusion in the action plan in pursuit of — not in compliance with — achievement of the air quality standards. 66. There is no provision in the Bill to take action against a district council that fails to achieve the air quality standards or objectives set down in statute. There is no provision on any party — central or local government — in relation to that. However, there is an onus on the relevant authorities to undertake the duties as laid down in statute. Subsequent Regulations will specify who those bodies are but it is likely, subject to consultation, that they will include the Department of the Environment, the Department for Regional Development, the Department for Social Development and the Northern Ireland Housing Executive. It is intended that those bodies will be required by statute to do certain tasks. If they fail to fulfil their obligations, the Bill does not go so far as to declare them guilty of an offence. They will be deemed to have committed an unlawful act or omitted to do an action which they ought to have done. There will be an obligation, but not a statutory obligation, on them. 67. However, those authorities will get caught under the limit value Regulations. The Northern Ireland Departments are responsible for delivery of the European Commission limit value Regulations for pollutants. If Northern Ireland fails to achieve the European standards, the Commission will take action against the Executive in the form of fines and penalties. Therefore the Bill does not contain a statutory provision, but there is an onus on the Department to comply because another set of Regulations places the duty firmly at its feet. 68. Mr A Doherty: I made this point to the Minister in the Chamber this week when the Second Stage of the Bill was presented. A council may carry out all that is required of it in clauses 3, 4 and 5 — designate areas, prepare and put in its final action plan — but if the Department is not satisfied, it may turn the entire thing on its head. There is no provision for a council to have the right to argue its case or a right to appeal the Department’s decision. If the Department is not satisfied with what the council has done, it can make a determination with which the council must comply. The Minister did not come back to me on that point, but I hope that there will be some answer to it. 69. Ms Anderson: The Department will respond to you in writing. The statute is framed as it is because of the onus that is placed on Departments under the limit value Regulations and by the European Commission. It is the responsibility of the Northern Ireland Departments, particularly the Department of the Environment, to ensure delivery of air quality improvements. Therefore the Department of the Environment and the other Departments will be held responsible by the European Commission, but the Department of the Environment is the final arbitrator. The Committee appears to be concerned about the lack of appeal and statutory duty on Departments, but the Department of the Environment will consider that. 70. Mr A Doherty: Arbitration implies give and take, but there does not seem to be any give and take in this instance. 71. Mr Armstrong: Is the Department held responsible if any one person does not comply with the Regulations? Is it correct that the onus does not fall below the top rung of the ladder? 72. Ms Anderson: With regard to the European Commission actions, yes. 73. Mr Armstrong: Therefore any financial penalty is imposed on the top rung of the ladder. 74. Ms Anderson: The only offence decided by the Bill is when an individual or body fails to allow access to premises or information. Powers of entry offences are created there. It is not an offence to fail to achieve the air quality standards. 75. Mr Armstrong: So the standards are for advice purposes? 76. Ms Anderson: The responsibility on district councils is in the operation of the mechanism — doing the reviews and assessments, declaring the area, and putting together the action plan in conjunction with other parties. The Department would have to specifically direct a district council to put in place a smoke control area. The measures that might tumble out of the Bill could be traffic reduction, which will ultimately fall to Roads Service in the Department for Regional Development, smoke control provisions, which would fall to the Housing Executive and to district councils, because district councils operate smoke control areas, the provision of grants, and so on. Really, the only measure likely to fall within the district council’s gift is smoke control, and they are grant-aided by the Department of the Environment for that. 77. I appreciate that there is much to get through. We will probably be back with the Committee on several occasions. I appreciate you trying to stay with us on it. 78. The Chairperson: I would like you to keep going through this overview document. If you could continue to give us the overview, then we can ask specific questions. 79. Ms Anderson: Clause 6 refers to reserve powers that the Department has retained. This clause confers on the Department the power to exercise any of the air quality functions that should be undertaken by a district council. It also gives the power to the Department to recoup the costs of any exercise undertaken on a district council’s behalf. The Department also has the power to give direction to a district council, requiring it to carry out a specific action in relation to air quality. This clause also provides the power to the Department to give direction to a district council in order to implement aspects of European Union Treaties or any international agreement relating to the quality of air. A requirement is placed on the Department to publish any directions given, and to make copies available to the public. A district council must comply with any such direction given to it. 80. The Environment Committee enquired about the role of the Department in implementing this legislation, and we have responded to you at length on that. In particular, clause 6 (1) enables the Department to recoup reasonable costs for review and assessment work carried out on behalf of a district council. Clause 6(3) allows the Department to issue directions to district councils and clause 6(6) requires the Department to publish a notice of the direction. 81. This clause also covers the query from the Committee as to what action could be taken against a district council that fails to carry out its statutory duty. In addition, the Human Rights Commission, in its reply, suggested that there should be more emphasise on informing the public and making information more readily available. Clause 6(6) requires the Department to publish any direction it has given to the district council, therefore assisting in that respect. 82. Clause 7 lists, at great length, the Regulations that the Department would be able to make under this Bill. It provides the Department with the power to make Regulations to implement the air quality strategy, and to implement UK obligations under the European Union Treaties or other international obligations, or to make more detailed provision for the assessment or management of air quality. The Committee asked what levels of fines were proposed under the Bill, and we covered this at length in our response. I would direct you to that for information. 83. Generally, the only Regulations that the Department is proposing to make under the Bill at this time are Regulations that will specify who the relevant authorities are, and Regulations that set down the limit values for the range of pollutants. These are required to make the Bill work. We have no intention to issue any other Regulations at this time. You will also see in the list that it allows us the power to make Regulations in relation to a whole host of things. 84. The Bill puts in place a framework that will require the identification of our pollution problems; for example, which pollutants are concerned and where they occur geographically. The Department will then work with various stakeholders to consider what Regulations are required to remedy these problems. Regulations will be brought forward on a need basis, and will be subject to consultation. 85. Clause 8 provides the power to a relevant authority to make recommendations to a district council in respect of any of its air quality functions. A power is also given to the Department to issue guidance to a district council or a relevant authority concerning a district council’s or a relevant authority’s functions under the Act. 86. The Committee raised related issues in recent correspondence and asked for a copy of the guidance. We have given you the website address for the current guidance, and we will share with you the revised guidance when it becomes available. You also sought clarification of the meaning of councils being required to "have regard to recommendations made by the Department". 87. This means that district councils will be required to take into account such recommendations, but they will not be legally obliged to adhere to them. It is standard legislative phraseology, and its interpretation does not appear to have caused significant problems. You might want to consider that response, and whether you wish to pursue that any further. 88. Clause 9 basically applies the provisions of schedule 1. We will deal with schedule 1 later, so there is nothing to look at in the clause itself. 89. We have already discussed this at some length. Clause 10 provides powers to the Department to make grants or loans — currently we are making grants — to any body or person carrying out work in relation to reviews, assessment, the drawing up of action plans, and the management of air quality. The Department will determine the amounts paid, and the terms and conditions for any payments or repayments. 90. A number of district councils, and also the Northern Ireland Local Government Association (NILGA) and the Chief Environmental Health Officers Group, are listed as having raised the issue of funding and the request for funding. We have given you a lengthy response to this, which basically says that moneys will be provided subject to budget outcomes. I anticipate that you will want to discuss this. 91. The Chairperson: The answer is certainly not a detailed one, and there are a lot of holes in it. We will certainly want to come back to this because it certainly does not satisfy anybody. 92. Ms Anderson: Clause 11 provides that an authorised person may exercise certain powers, which are specifically outlined in the legislation. In its reply to the consultation document the Human Rights Commission expressed an interest, and we have copied these to the Human Rights Commission. We are waiting for a response from them. 93. Basically, the powers of entry contained in this legislation are identical to those in a host of similar legislative instruments. If we need to, we can debate that. 94. Clause 12 deals with offences by a person who obstructs an authorised officer in the exercise of his duties. It also states that it is an offence for a person, without reasonable excuse, to fail to comply with any requirement imposed under clause 11. Clause 11 is about powers of entry and permission to take samples, and so on. The current maximum fine is Ł5,000, which is standard level 5 on the current standard scale. 95. Clause 13 sets out the arrangements for disclosing information obtained under the provisions of this Act. Again, they are very similar to those in other legislation. 96. Clause 14 provides for Regulations to be made to modify provisions of this Act to enable the UK to give effect to Community obligations or international agreements. 97. The Chairperson: I would not want to stop you in your flight. 98. Ms Anderson: I appreciate the time constraint we are under, and that you have other Bills. 99. Clause 15 applies, with the omission of certain words, the provisions of sections of the Interpretation Act (Northern Ireland) 1954 relating to offences by a body corporate. 100. Clause 16 provides that where an offence is due to the fault of another, that other person can be held liable. 101. We have touched on clause 17 before, and you have voiced concerns in relation to the application of the Crown. This is the standard provision in relation to that, but we note your concerns. 102. Clause 18 specifies those Regulations made under this Act which are subject to affirmative resolution, and those which are subject to negative resolution. The affirmative ones are those which put fines in place; they would be presented to a session of the Assembly. The content is in the Bill itself. It also outlines the requirements of a direction given by the Department in relation to community obligations. There are specifics in relation to that. 103. Clause 19 defines various words used in the Act. The definition of "air" came up in the Assembly at Second Reading. In case any of you are wondering, I did not dream that up. The given definition of "air" might not be the definition that the man on the street would use, but it is the definition used in the Directive. To ensure effective and clear transposition of the Directive, we are legally advised to use their definition. 104. Clause 20 gives the short title, although it is not very short. 105. Schedule 1 sets out the detailed procedural instructions relating to consultation requirements — who has to be consulted, how it must be done, the exchange of information, the joint exercise of district council functions, public access to information, and fixed penalty notices. The Committee for Nature Conservation referred to the need to ensure that there was an exchange of information between district councils and the Department. The schedule contains a paragraph relating to that exchange of information — it provides between whom that exchange must be conducted, and what it must entail. 106. In the consultation, the Transport Division of Department for Regional Development also referred to the possible need for new traffic Regulations, and that is covered. There is an amendment to their Road Traffic Regulation Order, which gives them the power to produce subordinate legislation that could limit, either in total or in part, the vehicles that could gain access to an area. That would be a potential measure where traffic was a problem. 107. The Environment Committee also referred to the need for an exchange of information, and we have provided you with a detailed response. The reply from the Human Rights’ Commission suggested that there should be more information on informing the public. The part of the schedule that deals with that has been sent back to them, and we are awaiting comments from them. 108. The purpose of schedule 2 is to set out detailed procedural instructions for the use of warrants;, the obtaining of information that may be admissible in evidence; the securing of premises if you had to gain entry without the consent of the owner; and compensation — all of which relate to powers of entry. These are standard across other pieces of legislation, and we will debate those with you at greater length at some other time. 109. The last page of my summary highlights several other pertinent issues which did not really fit in under a particular clause. You will see how the queries raised by the respondents have been dealt with in the copies of our replies to them. I would also point out that I just have noticed that this is not actually the final draft. There are some other comments, and I will provide the amended version to the Committee Clerk. There is not much additional material in it, but it might just give you more clarity. There is nothing in it that would alter anything that we have discussed today. Thank you for staying with us on that gallop through the Bill. 110. The Chairperson: That was a sterling performance, so thank you very much indeed. It has been helpful, and it has been good for us to get that overview. Members and our officials can now take the Bill and go through it with more care using these notes. We will certainly want to revisit its financial aspects. I must declare an interest in that, because it deals with district councils. We will read this carefully and come back shortly. You may discuss with our officials when that might be. There is a lot here for thought and earnest consideration. Your presentation has certainly been helpful, and we deeply appreciate that. 111. That is as far as we will go today. It is more important that Members carefully read this document with the Bill. We will come back at the next session and go into more depth with any questions or queries we might have. You will also have the proper draft then. Thank you very much indeed. 112. Ms Anderson: Thank you. This has been helpful to us as well as you, undoubtedly. MINUTES OF EVIDENCE Thursday 3 October 2002 Members present: Witnesses: 113. The Deputy Chairperson: I welcome Ms Helen Anderson, Ms Ann Hall and Mr Dan Kennedy from the Department of the Environment. Members should declare any interests with regard to local government. Various members declared an interest. 114. Ms Anderson: We have already provided some notes that summarise the Bill’s content and bring members up to date with what has happened over the summer. I will go over that. A table has been circulated this morning, which takes the information that was in the previous appendices 1 and 2 and sets it out in a slightly different format for easier consideration. 115. The Bill seeks to implement EC Directive 96/62 on Ambient Air Quality Assessment and Management and to satisfy the Programme for Government and ‘Investing for Health’ commitments that the Executive have signed up to. The content of the Bill is summarised on the handout provided; the salient points that will be discussed later are highlighted. 116. The Bill requires district councils to carry out reviews and assessments of air quality within their areas and, if air quality standards and objectives are not likely to be achieved, to designate that part of the council area as an air quality management area. 117. The Bill requires each district council to prepare a report of the findings of the air quality assessment and prepare an action plan in relation to any powers exercisable by the district council and to send that to other relevant authorities. Relevant authorities are then required to submit proposals, in relation to any powers exercised by them, for inclusion in a composite action plan. The Bill is about linking district councils with Government Departments and other relevant public bodies to sort out what activities are needed for improving air quality and to put those into an action plan. 118. The Bill also allows the Department of the Environment to act and recoup costs where a district council fails to fulfil its requirements under the Bill. It allows the Department to direct a district council to take any specific action on air quality matters, and it provides the Department with the power to issue guidance to district councils and other relevant authorities concerning their respective functions under the Bill. 119. The Bill provides the Department with the power to make grants or loans to any body or person in relation to air quality review, assessment and management. That was a discretionary power previously; it was not mandatory. The Bill details the powers of authorised persons. Other important points are listed, but they will not be important in today’s discussion. I am conscious that best use should be made of the time, but I am happy to go over those points again if Committee members so wish. 120. The paperwork also contains an itinerary of the interplay between the Department and the Committee thus far. Again, I can go through that in more detail if it would be helpful. The main issues highlighted in meetings with the Committee have been concerns in relation to the continued funding for district councils to undertake their activities under the Bill, the lack of an appeal mechanism for district councils in the Bill as currently drafted, and the Crown immunity issue. The Bill, as it stands, puts in place the standard Crown immunity provision, which sets out that the Crown will not be held criminally liable but can be taken to the High Court and deemed to have acted unlawfully. A declaration can be made against the Crown. 121. We thank the Committee for forwarding copies of the comments that it received over the summer. We have taken those on board and, as we indicated we would, we have held several meetings about the Bill with the various stakeholder groups over the summer. Those have been very fruitful. Among the groups that we met were the Planning Service of the Department of the Environment, the Regional Planning and Transportation Division and the Roads Service of the Department for Regional Development, and the Housing Division of the Department for Social Development. We have also met the Northern Ireland Housing Executive and representatives from the district councils. 122. All parties received various papers, and copies of the Bill and the proposed Regulations. We then held lengthy discussions with all the stakeholders. We have offered them the opportunity to come back to us, either orally or in writing, to take up any outstanding issues. There is a table in the paperwork that details those issues, which originated from both the written and oral aspects of that exercise. 123. At the meetings, we explained to the stakeholders the contents of the Bill and the associated proposed requirements of the Relevant Authority Regulations. The Bill sets out a range of duties on district councils and relevant authorities. That is meaningless unless it is known who the relevant authorities will be. We undertook to draft Regulations on that and circulate them for discussion and comment during the summer. That was part of the stakeholder meetings. The various parties have seen those and have had an opportunity to comment. 124. The Department found that the meetings were well received and that there was general consensus in favour of the Bill proceeding. 125. The Deputy Chairperson: Could the Committee have a copy of the proposed Regulations? 126. Ms Anderson: Yes. I have an early draft, and there is also a draft consultation paper to accompany the Regulations. 127. Discussion centred on clause 4, which deals with the designation of air quality management areas; clause 5, which deals with the action planning phase; clause 10, which relates to funding; and clause 11, which relates to the powers of authorised officers. I will go through each of those in turn. 128. On clause 4, the Planning Service and Regional Planning and Transportation Division queried how we would determine what size of an area would be declared as an air quality management area. We told them that air quality management areas will vary in size depending on need. In some instances in GB, air quality management areas can be as large as a borough council area, or they can be a very small portion of road or a roundabout. It relates to the exposure of individuals to levels of pollutant that are above health-based standards. There is no set size for them, and they will be determined by the circumstances. The Planning Service and Regional Planning and Transportation Division were content with that clarification. 129. Clause 5 is the action-planning phase. Various Departments, including the Department for Regional Development, the Department of the Environment and the Department for Social Development, may have activities to perform in relation to bringing forward action plans that would identify the actions that they propose to take, and the timescales in which they propose to take them, to bring about reductions in air pollution in those air quality management areas. 130. District councils expressed concern about the possible lack of commitment from Departments and other bodies — mostly the Northern Ireland Housing Executive — and that was where the Relevant Authority Regulations came into their own. We sent those Regulations to the district councils before the meetings, and we were able to talk our way through them. The Regulations prescribe for the various Departments and the Housing Executive which clauses of the Bill they will be responsible for actioning. The Relevant Authority Regulations go through the Bill clause by clause, indicating the Departments involved. They also state whether the district councils or the Northern Ireland Housing Executive have a role to play in respect of that clause or that subsection or paragraph within that clause. All of the stakeholders were happy with that, as it clarified who was expected to do what. 131. There are a few programmes and strategy documents on the transport and planning side that already contain significant air quality commitments. In addition, all of the stakeholders at the meeting were happy to give a verbal commitment to the air quality dimension, and they saw how it sat alongside their priorities and issues. Everybody was content that the Regulations locked people in, and that the commitment would, therefore, be assured. 132. District councils had concerns about the Planning Service taking air quality into account whenever it was producing area plans and policy documents. The Planning Service emphasised that it was keen to embrace that partnership approach. It pointed out that the Relevant Authority Regulations spell out the Planning Service’s role and the actions that it would have to come forward with, and that its strategy documents identify air quality as an issue that it would take on board in developing any plans. The Planning Service emphasised that air quality could be a material consideration for planning matters. When that was explained to the district councils, they were happy that through that — and particularly through the Relevant Authority Regulations — the Planning Service would be locked in. If planning issues were required, the Planning Service would have to come forward with proposals for inclusion in the action plans under the Bill, and those would also find their way into the relevant planning plans. 133. We also talked about policy guidance on the planning side, and the Planning Service agreed to make an input to the air quality technical guidance that we are formulating at the moment. The Planning Service mentioned its planning policy statement 1 (PPS1). The hope is that between the technical guidance, which the Department is working on with the Planning Service at the moment, and PPS1, there will be adequate coverage on the planning policy side with regard to air quality. That technical guidance will go out for consultation this winter. Therefore, if councils feel that enough has not been done with regard to air quality policy, they will have an opportunity to voice their concerns. 134. Councils expressed concern about leverage over bodies such as housing associations and private rented sector tenants. This concern arises from the pollution problems caused by domestic coal fires. The Housing Executive will be named as a relevant authority and, therefore, will have to act as appropriate. However, housing associations will not be named in the Relevant Authority Regulations because, legally, it would not be appropriate to do so. 135. Housing associations and private rented sector tenants are already subject to the existing smoke control and clean air legislation, so councils already have a power to enforce the controls. The Department for Social Development assured us that it has leverage over housing associations, and that, if need be, it can use that to ensure compliance. Should commitment be lacking, the Department can take action. The Department of the Environment discussed the matter fully with the councils. They were wholly content with that position and could see how the system would work in practice. 136. The Committee received a copy of a letter that the Housing Executive sent to us. The Housing Executive discussed the matter with us fully at the stakeholder meetings. It is fair to say that the Housing Executive is not reluctant to play its role with regard to the Bill. It understands the purpose of the Bill, and that it embraces the health and air quality dimensions of the executive’s policy documents. Those helped to bring about the fuel switching policy that the Housing Executive operates with regard to oil and gas. From that point of view, it is wholly on board. 137. However, the Housing Executive has concerns about timetabling. Its programme for switching to the cleaner fuels will not reach completion until about 2009-10. The target date for some of the air quality requirements with regard to the two pollutants that are relevant to the Housing Executive is 2005. The Department explained to the Housing Executive that actions will be required only where there are problems. Action will not be necessary across the whole of Northern Ireland. Where there are air quality problems that are going to cause difficulties, air quality management areas will be declared. The Department is not in a position to say how many of those there will be in Northern Ireland, but it is unlikely that large parts of Northern Ireland will be declared as air quality management areas. 138. In a sense, the Housing Executive, as with all the partners, will be asked to focus its attention in the air quality management areas that are declared. Some of those may be areas where the Housing Executive has already introduced its fuel switching policy. We have been very up front with the Housing Executive. The action planning process under the Bill will cause it to examine the timetables that it has set for itself. However, the Department and the councils will discuss the matter with the Housing Executive to see whether we can accommodate the air quality management area plan needs within the executive’s timetables. It may be that the Housing Executive will have to skew some of its timetables to accommodate the air quality pressures, but that will become apparent when we are further down the line. 139. The Department has been very open with the Housing Executive, and discussions are ongoing. The executive is content with the Bill. I stress — and it has been stressed to the Housing Executive — that the Bill itself does not contain the timetable in respect of air quality. It puts in place a mechanism for delivery; it identifies the players and states that action plans will be required. We will produce separate Regulations which will name the pollutants and identify the separate timeframes. Those Regulations are scheduled for winter of this year, and any concerns about them will be discussed. 140. Some of the target values for those pollutants are EC requirements, over which we have no discretion. Others are national health limits, and there may be some discretion about when they could be achieved. That is for another day; however, it may be helpful to know that some of those are EU-driven. 141. The Deputy Chairperson: It is October. Does "winter of this year" mean that the consultation will be in November or December? 142. Ms Anderson: All being well, it should be late November/early December. Supporting Regulations must be in place to allow people to understand and comment meaningfully on the Bill, and we worked on those during the summer. The Relevant Authority Regulations have been brought forward, and we aim to issue those next month. The other Regulations are not yet ironed out, but we hope that they will be ready for consultation in late November/early December. 143. Staying with clause 5, the district councils, the Roads Service, the Planning Service and Regional Planning and Transportation Division queried the timetabling for activities under the Bill. The EU-driven Air Quality Limit Value Regulations, and the Air Quality Regulations, which will set out the national requirements for the health-based pollutant levels, will define the timeframes for work to be carried out. In addition, all the internal governmental stakeholders are assisting us in drawing up a suite of technical guidance to assist all of the stakeholders with the activities required under the Bill. That is well under way and should be sent out for consultation in November/December. 144. All of that will assist in identifying and setting out the timetable, which is not covered in the Bill. The players are content to clear the Bill and will examine and comment on the timetabling separately. 145. The Roads Service expressed concern that it had not received early feedback from district councils on potential problems. The Committee may recall that almost a year ago district councils began a voluntary review and assessment process. It is still at an early stage, and there is not much to share with other stakeholders. Government stakeholders are concerned that information should be shared with them as early as possible. The district councils have assured us that as soon as there is anything to share it will be shared. 146. In addition, the relevant councils have set up a Greater Belfast Air Quality Partnership. The Roads Service and the Department of the Environment have been invited to attend as observers. When the partnership has relevant information to share with others, such as the Planning Service, the Department for Social Development or the Housing Executive, those bodies will be invited on as observers. Again, the players are content with that. 147. The Committee had raised the issue of the lack of appeal mechanisms. District councils asked us to clarify their right to appeal under the Bill, in the context of possible disagreement between themselves and a Government Department in which the Department of the Environment was left as the arbitrator. It was spelt out to councils that although the Department of the Environment would be the arbitrator in such circumstances, the matter would not be dealt with by us as individuals; it would instead be contracted to an independent consultant, skilled in that type of work, and the consultant would advise us. That is appropriate, because it boils down to action plans and technical reports. The problem pollutants will be set out, together with their levels, their likely levels in the target years, and the proportion of reduction required. 148. The sources of the pollutants would be considered, and, through that, the type of reactions required from the various stakeholders will be determined. It is appropriate that an external consultant, skilled in this type of work, should carry that out. He would simply report back to the Department of the Environment. We would then engage with the stakeholders and help them to take on board his views and concerns. When we talked through that, the councils were wholly content with that approach. They could see the rationale for having adopted that approach in the Bill. It made sense in the context in which we were operating. 149. The district councils had no concerns about the Department of the Environment having a power of direction over them. The Environment Committee raised that issue previously. I raised that with the district councils as an Environment Committee concern, but they indicated that they were content with it. We would only use that in the most extreme circumstances, and the district councils were content with that position. That is the summation of clause 5. Would anyone like to ask any questions before I move on to the funding? 150. The Deputy Chairperson: No. We can move on. 151. Ms Anderson: Clause 10 is the funding clause. Again, the Environment Committee had expressed concerns about this clause. District councils raised three particular concerns, one of which related to the grants or loans. The Bill allows for grants or loans. We currently grant money to district councils. They raised a request that that be made available to the councils at all times. The Bill provides a power for the Department of the Environment to fund work on air quality. That is a mandatory power, but it is not an obligatory power in that the Department does not have to fund. The Bill states that the Department "may" fund. 152. The Department indicated that it currently views the voluntary air quality management process as a key element in improving air quality in the short to medium term and that there is programmed funding of that until 2003-04. After that, future funding requirements will be considered by the Department. Those considerations will take into account the types and levels of funds made available to local authorities in GB, and the district council need for funding. My colleague, Dan Kennedy, could go into more detail, but most of the funding up to now has been for equipment or for particular activities. Much of that is one-off funding. 153. Once we get further down the action planning process, many of the activities required are going to relate to the creation of smoke control areas and perhaps to traffic measures. The traffic measure costs will be lifted by the Department for Regional Development’s Roads Service. If district councils decide to put in place smoke control areas, a separate funding line has already been provided by the Department under the clean-air legislation for that. Therefore, the funding for that would not fall under the Bill. 154. We would be looking to fund additional areas, which would have to be based on need. District councils were content with that approach and can see that any funding will have to be on a needs basis. We do not know what those needs will be. Therefore, we will address them when we do. The review and assessment process being carried out by district councils will inform that, but not enough information is coming from that to currently allow us to identify what those needs will be. 155. The Deputy Chairperson: When will criteria be available for the councils to see if they will qualify for any available grant? 156. Ms Anderson: They are currently being grant-aided under the review and assessment process. That will continue until 2004. There is an open door on smoke control areas. The district councils can apply to the Department for funding under smoke control. There are set criteria for the available funding under that. My Colleague, Dan Kennedy, is perhaps best placed to speak about funding beyond 2004. However, it can be encapsulated by saying that when the review and assessment processes identify the sources of the pollution, and the degree of reduction required from each of the sources, we will be better informed to know what type of funding schemes might be necessary. The lack of information to enable us to identify additional funding schemes is holding us back; it is not because of any reticence on the Department’s part. Dan Kennedy might want to comment at this stage. 157. Mr Kennedy: No, I think that you have covered most of the issues. 158. Mrs Nelis: Will there be established criteria for additional funding in respect of those areas with the highest rate of smoke and sulphur dioxide? I note that Strabane District Council submitted a response to the consultation which states that it had the highest levels — 32 micrograms per cubic metre — and Derry had the next highest. The Housing Executive has already stated that it is not in a position to address the changeover in the solid fuel heating system, and that means that those sulphur dioxide levels in Strabane and Derry are likely to remain. How do you think that district councils should address this issue, and what criteria will you be using for additional funding? 159. Ms Anderson: The response from Strabane District Council contained allegations about its position vis-à-vis its pollution status in the UK. The Department has already responded to the council on that allegation. We are not disputing that it would have pollution problems, but the monitoring equipment from which the figures were derived had not been in position for a sufficient period to provide a true reflection of the council’s position in the pollution league. Mr Kennedy could clarify that. 160. Mr Kennedy: The monitoring site had only been operational for less than a year. When the review and assessment process is complete, it will help to give a better picture of the extent of the pollution, especially in the Strabane area, and it will also project forward to the target dates and allow a reasonable assessment. If levels were significant following that review, I would anticipate that smoke control would be a factor. The Department of the Environment already has a funding line for providing moneys for smoke control. 161. Ms Anderson: The only action that district councils will be able to take under the Bill relates to the imposition of smoke control areas. The clean-air legislation currently allows councils to declare those smoke control areas, and the Department has substantial amounts of money available to provide funding to them. The Housing Executive will have to put forward its case for funding. We have told it that if there were air quality pressures, we would be prepared to support it on the internal papers that would work their way through the Department for Social Development. However, it would not be a case of the Department of the Environment funding the Housing Executive: that would be a massive policy departure. However, funding lines already exist for district councils. Where air quality management areas are declared, action plans will identify the actions to be taken by the various parties, and the availability of funds to undertake those actions will be crucial. 162. Mrs Nelis: Is air quality control a cross-cutting issue? 163. Ms Anderson: It certainly is a cross-cutting issue. 164. Mrs Nelis: That should impact on the funding arrangements. 165. Ms Anderson: It ought to, but you will appreciate that it is not really for me to comment on another Department’s funding arrangements. 166. The Deputy Chairperson: Dunmurry, in my constituency, was rated two years ago as being the village with the highest pollution, and the council had to take action. The area contained an estate that was not a smokeless zone, and the council is working with the Housing Executive to try to eradicate that in the next few years. It cannot be done all at once. The Housing Executive will fund the change from coal to other fuels. 167. Ms Anderson: District councils and the Housing Executive already work in partnership in relation to smoke control areas. Where air quality monitoring areas are declared, those councils that have not turned their attention to smoke control in the past might have to. Some councils, such as Belfast, have adopted it in full, and other councils have not, but it may be appropriate for them to do. The Bill is going to focus their attention on that. 168. Clause 11 relates to the powers of authorised officers to enter residential premises, and a couple of issues were raised about that. The Northern Ireland Human Rights Commission has told the Environment Committee that it would like to see provision in the Bill, or at least an indication of the Department’s intention, to establish a code of practice for the exercise of this power. The Bill allows authorised officers to enter residential premises, having given seven days’ notice with the resident’s consent, or having given seven days’ notice with a warrant from a Justice of the Peace. 169. That is similar to the provisions in other legislation. We discussed that with district councils at the stakeholder meetings because any additional code of practice would impact on them. They said that they already deal with a wide range of legislation. The Police and Criminal Evidence (Northern Ireland) Order 1989, the codes of practice under it and the Cabinet Office’s enforcement concordat provide them with guidelines in and around this area. They felt that that might be enough to satisfy the Human Rights Commission. We have considered the Police and Criminal Evidence (Northern Ireland) Order 1989, the codes of practice under it and the enforcement concordat, and we have extracted what appeared to be the relevant material from those. We intend to liaise directly with the Human Rights Commission and see if that would be sufficient to satisfy it. If the Committee is content, we will adopt that direct approach, and we will report back to you. 170. The Deputy Chairperson: Yes. We are content. 171. Ms Anderson: We hope to make contact with the Human Rights Commission next week with a view to exchanging papers and arranging an early meeting to try to resolve its concerns. We have liaised with it previously on the Bill. It did not raise the issue at that time, otherwise we would perhaps have been further on, but we hope to resolve the issue soon. 172. One of the district councils stated that the seven days’ prior notice of entry to residential premises seemed excessive. However, that is the provision in the equivalent GB legislation, and it is equivalent to provision in other pieces of Northern Ireland environmental legislation. On that basis, we would be content to stand with it. The Environment Committee did not raise the issue previously. We explained that at the stakeholder meetings, and the district councils indicated contentment with that on that basis. 173. The last issue, which is the extension of the gas distribution system throughout Northern Ireland, has also been raised by the Environment Committee. It does not really fit in under any of the clauses in the Bill. 174. The Department appreciates fully that the availability of natural gas in Northern Ireland has an impact on air quality. Having said that, fuel distribution is a separate policy issue to that under the Bill. The Bill just seeks to put in place a mechanism to require air quality in Northern Ireland to be looked at and actioned where it is bad. When the air pollution problems that are identified under the Bill cannot be reduced adequately using available measures, which will include fuel types, the matter will be for collective consideration by our Department and other Departments or agencies. 175. We have explained that to the Environment Committee previously. We went into that in some detail at the various stakeholder meetings. The district councils and others indicated that they were content with that; they appreciated that it was not an issue for the Bill. It is perhaps a general issue of concern, but it is not an issue for the Bill. We are content to leave it on that basis. 176. I have gone quickly through that because I wanted to give you a flavour of what has been involved and the issues that we have been able to satisfy the various stakeholders on. That may leave you in a better position to identify what you wish to take forward with us. 177. Mr Armstrong: Is there anything in the Bill relating to industrial pollution or waste pollution? 178. Ms Anderson: Those sorts of pollution will be dealt with under the pollution prevention and control regime. Generally, pollution from industry affects the air quality in the immediate surrounding area. However, industrial pollution will be dealt with under the appropriate legislation, and neither the Bill nor the mechanisms under it will be used to effect improvements in sectors where more appropriate legislation already exists. 179. The Deputy Chairperson: If the Committee is content, I would like to thank Ms Anderson and her team for all the work that they did during the summer. We appreciate the very concise document given to the Committee this morning. 180. Mrs Nelis: Will there be any right to compensation for those who have been affected by air pollution? 181. Ms Anderson: No. 182. Mrs Nelis: Will that be dealt with in separate legislation? 183. Ms Anderson: The Department has no intention of developing legislation to deal with cases where the health of individuals has been affected. I will seek legal advice on that matter before reporting back to the Committee, if members are content. 184. The Deputy Chairperson: OK. Thank you. WRITTEN EVIDENCE AND CORRESPONDENCE Annex 1 Letter dated 2 October 2002 from the Department of the Environment Annex 2 Letter dated 18 January 2002 from the Committee for the Environment Annex 3 Letter dated 30 January 2002 from the Department of the Environment Annex 4 Letter dated 3 April 2002 from the Minister of the Environment including Synopsis of issues raised during consultation process Annex 5 Letter dated 8 May 2002 from the Department of the Environment including Policy Memorandum Annex 6 Letter dated 16 May 2002 from the Committee for the Environment Annex 7 Letter dated 22 May 2002 from the Department of the Environment including Draft Bill Annex 8 Letter dated 13 June 2002 from the Committee for the Environment Annex 9 Letter dated 13 June 2002 from the Department of the Environment Annex 10 Draft Bill Second Stage Reading dated 18 June 2002 Annex 11 Presentation dated 20 June 2002 by the Department of the Environment Annex 12 Letter dated 17 June 2002 from Northern Ireland Human Rights Commission Annex 13 Letter dated 26 June 2002 from Newry and Mourne District Council Annex 14 Letter dated 1 July 2002 from Strabane District Council Annex 15 Letter dated 2 July 2002 from Council for nature Conservation and the Countryside Annex 16 Letter dated 3 July 2002 from Lisburn Borough Council Annex 17 Letter dated 2 August 2002 from Ballymena Borough Council Annex 18 Letter dated 5 August 2002 from Ards Borough Council Annex 19 Letter dated 12 September 2002 from the Housing Executive Annex 20 Letter dated 1 October 2002 from the Department of the Environment Annex 21 Presentation dated 3 October 2002 by the Department of the Environment ANNEX 1 LETTER FROM: 2 October 2001 A CONSULTATION DOCUMENT ON A PROPOSED LOCAL AIR QUALITY MANAGEMENT BILL I enclose 17 copies of a Consultation Paper which sets out the Department’s proposals for a Bill aimed at providing the legal framework, policies and mechanisms for the assessment and management of ambient air quality in Northern Ireland. The proposed Bill is entitled the Local Air Quality Management Bill. A copy of the press release, which will accompany the publication of the Consultation Paper, is also enclosed. The consultation document seeks views on a proposed Bill, which is intended to provide a mechanism enabling air quality to be managed in Northern Ireland. The proposed Bill also seeks to satisfy the Programme for Government (PfG) commitment to have in place by May 2003, a policy and legislative framework to deliver Northern Ireland’s contribution to the targets I the Air Quality Strategy for England, Scotland, Wales and Northern Ireland. The introduction of the proposed Bill will also transpose Article 3 of the EC Directive on Ambient Air Quality Assessment and Management (EC96/62), which was to have been transposed by May 1998. In view of this Northern Ireland is placed in a potential infraction situation and there is therefore an urgency in transposing this legislation. In addition, there are a number of other pressures for this legislation to be brought forward as soon as possible. These include the PfG commitment which sets a very stringent timeframe within which the legal mechanism should be in place in Northern Ireland; District Councils have emphasised the need for the legislation and have already voluntarily engaged in the process required by the proposed legislation. The Department has already established a scheme to provide funding to District Councils to assist with the implementation of the proposed legislation. There is also the important issue, to be taken into account, that public health may currently be adversely affected in those pollution hotspots which the legislation is designed to tackle. In view of these pressures, the Executive Committee has agreed that this Consultation Paper should issue for an 8-week consultation period. Accordingly, the Consultation Document is being published now with Friday, 30 November 2001, closing date for comments. I would welcome the Committee’s comments on the proposals and would be happy to arrange a presentation by officials if the Committee would find it helpful. LESLEY ROONEY ANNEX 2 LETTER FROM: 18 January 2002 Following the presentation from Officials of the Department at this week’s meeting, the Committee has considered its response to the above Consultation Document. The Committee believes that the proposed legislation is long overdue and must be progressed with all speed. For too long, Northern Ireland has had to endure episodic air quality of the lowest standards and our cities have too often held the dubious title of "dirtiest" in the UK. Anything that brings about improvements must be welcomed. While the Committee welcomes the fact that so many of the District Councils have been willing to take this forward, the issue of financing the legal requirements is a matter for concern. It is appreciated that a grant scheme is being funded with over Ł3m over 3 years but the Committee would not support an increase in local rates to pay for the Councils to carry out an imposed statutory responsibility. As you know, an overriding principle throughout all recent anti-pollution legislation is that of "the polluter pays" and perhaps more needs to made of this. While the Department has stated that no equality issues are presented by the proposed legislation, the Committee would contend that consideration of the Document highlights the inequality of fuel choice/poverty throughout Northern Ireland with only a part of the population having the option of Natural Gas. This needs to be addressed with sensitivity in any legislation. While the Committee would welcome any legislation that is at least as effective as the earlier GB legislation, it is disappointing that the Department feels at this stage that there is nothing to be learnt from the implementation of the GB legislation that would give Northern Ireland a strengthened strategy. In this context, it appears that the objective may be to have legislation in place to avoid potential infraction proceedings rather than the most comprehensive legislation possible to address issues in Northern Ireland. During the presentation, the Officials referred to the proposed statutory requirements on both District Councils and Public Bodies - including relevant Government Departments. For some time, the Committee has been critical of the lack of real action against those polluters within the remit of Government Departments, for example, continued pollution of our waterways from sewage discharges, The Committee looks forward as to how the proposed legislation will address such issues in relation to air quality. Finally, it is widely accepted that a primary cause of air pollution arises from airborne particulates whether locally from coal, solid smokeless fuels or vehicle emissions or frequently from long range transported pollutants from throughout GB and Europe. Unfortunately, it may be the case that no matter what is done within Northern Ireland will be of little consequence if the UK Government fails to act decisively and rather than setting interim targets, it should act positively to achieve accepted standards. I hope you find this helpful. The Committee would like to be informed of the outcome of the consultation exercise and how the Department intends to proceed. JIM BEATTY ANNEX 3 LETTER FROM: 30 January 2002 I would like to thank the Committee for it’s prompt response following the official presentation in relation to the above-mentioned Consultation Document. The Department notes that the Committee accepts the proposed legislation is long overdue and must be progressed with all speed. As indicated by officials during the presentation, NI currently faces potential infraction proceedings regarding non-transposition of the EC Directive relating to Air Quality Assessment and Management. The PfG also commits the Executive to making this legislation by May 2003. In order to meet the May 2003 deadline it is imperative that a Bill is introduced in the Assembly in early June. The Department will be doing everything it can to meet that target. With respect to Consultation Document and presentation, the specific concerns and points raised by the Committee are addressed below. 1. The Committee has stated that it could not support an increase in local rates to pay for the Councils to carry out an imposed statutory responsibility. The Committee has acknowledged the current Local Air Quality Management Scheme of grant-aid to District Councils, which operates on an extra-statutory basis. It is proposed that the Bill will contain a power enabling the Department to fund work in relation to air quality assessment and management which will plan future payments on a statutory basis. The Department notes the Committee’s concerns and will be bidding in future Budget rounds for funding for District Councils in relation to local air quality activities. The outcome of these bids will be a matter for decision by the Executive Committee, subject to approval of the Budget by the Assembly. 2. The next point raised concerned inequality of fuel choice with only part of the population having the option of Natural Gas. Whilst Natural Gas is /will be available only in certain parts of Northern Ireland, other fuel types are widely available such as, LPG, oil, and smokeless solid fuel. In the event that the Air Quality management process identifies areas in which air pollution cannot be adequately reduced using available measures (including fuel types), the matter will be for collective consideration by the Department and other relevant Departments and agencies. 3. The Committee expressed the view that there would seem to be more emphasis on avoiding infraction proceedings rather than producing more comprehensive legislation which would address issues in Northern Ireland. The Committee can be assured that the proposed legislation is intended to include and improve on the GB legislation by incorporating a number of stronger powers, such as placing a statutory requirement on both District Councils and Public Bodies (which will include relevant Government Departments) to ensure necessary air quality improvements in Northern Ireland are achieved. During evidence, officials indicated that the proposed legislation will allow for NI either to continue to participate in a UK Air Quality Strategy or to produce a tailored NI Strategy. The appropriateness, and content, of any NI Strategy will be informed by the air quality review and assessment process under the proposed legislation. 4. The Committee also expressed concerns in relation to the lack of real action against those polluters within the remit of Government Departments. Cross-departmental commitment to secure the necessary improvements in air quality for both environmental and health reasons already exists. This is evident in the number of central government key strategies which have acknowledged the importance of the air quality dimension. In addition to this, the proposed legislation places a statutory duty on Government Departments to comply with the Air Quality EC Directive in relation to activities within their control. At a practical level, should any Department fail to fulfil its statutory duty in relation to measures within their control, the matter would fall to be resolved bilaterally between Ministers, or through the Executive Committee. 5. The final point raised by the Committee referred to airborne pollution and long range pollutants from throughout GB and Europe. The consultation paper on proposed new Air Quality Strategy objectives, published in September 2001, proposed to strengthen the objectives for particles by supplementing the present objectives with new objectives. The present objectives of a 24-hour mean of 50 µg/m3 (micrograms per cubic metre) not to be exceeded more than 35 times per year and an annual mean of 40µg/m3, both to be achieved by the end of 2004, are based on the limit values in the first EC Air Quality Daughter Directive. The proposed new objectives of a 24-hour mean of 50µg/m3 not to be exceeded more than 7 times per year and an annual mean of 20µg/m3, both to be achieved by the end of 2010, take account of emission reductions that will be delivered across Europe through the National Emission Ceilings Directive and the existence of the indicative EU Stage 2 limit values for particles contained in the first EC Air Quality Daughter Directive. It is now thought that emissions in mainland Europe may contribute up to about 15% of total annual average PM10 concentrations in the UK. Whilst in years when easterly winds are more frequent, emissions from mainland Europe can account for a much higher proportion, particularly in south and east England, Northern Ireland’s geographical location relative to mainland Europe, means that significantly fewer episodes arise from the long range transport of particles. The framework for Local Air Quality Management as proposed in the LAQM consultation paper, will allow district councils to consider the policy measures which will provide the most cost effective means of reducing particle concentrations, in particular at local hot spots. 6. In conclusion, the Department notes that the Committee would like to be informed of the outcome of the consultation exercise and how the Department intends to proceed. EILEEN DOWD ANNEX 4 LETTER FROM: 3 April 2002 LOCAL AIR QUALITY ASSESSMENT AND MANAGEMENT IN NORTHERN IRELAND In its response to the Department in respect of the above-mentioned Consultation Document, the Committee indicated that it would like to be kept informed of the outcome of the consultation exercise and how the Department intends to proceed. The Department issued the consultation paper on 5 October 2001 setting out its proposals for legislation to transpose the requirements of Article 3 of the EC Ambient Air Quality Assessment and Management Directive (96/62/EC). The closing date for comments was 30 November. A total of 36 responses was received all of which welcomed the proposals. The Department has considered the responses and decided that, of the 34 issues raised:
The enclosed Table (Annex A) provides a synopsis of the issues raised and the Department’s response. As already noted by the Committee, the proposed legislation is long overdue and must be progressed with all speed. As indicated by officials during the presentation on the proposed Bill, NI currently faces potential infraction proceedings regarding non-transposition of the EC Directive relating to Air Quality Assessment and Management. And, at a local level, the PfG commits the Executive to making this legislation by May 2003. In order to meet the May 2003 deadline it is imperative that a Bill is introduced in the Assembly as soon as possible. The Minister will therefore write forthwith to colleagues seeking approval to the Policy memorandum prior to submission to the Executive for formal approval to proceed with the Bill. In line with your request to be kept informed of how the Department intends to proceed, a copy of the Policy Memorandum will also be forwarded to the Committee for information at the same time as it goes to the Executive. EVELYN HOY ANNEX A COMMENTS ON LOCAL AIR QUALITY MANAGEMENT BILL
COMMENTS ON LOCAL AIR QUALITY MANAGEMENT BILL
COMMENTS ON LOCAL AIR QUALITY MANAGEMENT BILL
COMMENTS ON LOCAL AIR QUALITY MANAGEMENT BILL
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