Interim Report on the Planning (Amendment) Bill (NIA 12/01)

INTERIM REPORT ON THE
PLANNING (AMENDMENT) BILL
(NIA 12/01)SESSION 2002/2003 THIRD REPORT

Ordered by The Committee for the Environment to be printed 10 October 2002
Report: 03/02 (Committee for the Environment)

COMMITTEE FOR THE ENVIRONMENT
MINUTES OF PROCEEDINGS, MINUTES OF EVIDENCE, WRITTEN EVIDENCE,
SUBMISSIONS AND ASSOCIATED COMMENTARY
(up to and including the Committee's meeting of 10 October 2002)

COMMITTEE FOR THE ENVIRONMENT
REPORT ON THE PLANNING (AMENDMENT) BILL (NIA 12/01)

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:

• consider and advise on Departmental Budgets and Annual Plans in the context of the overall budget allocation;
• approve relevant secondary legislation and take the Committee Stage of primary legislation;
• call for persons and papers;
• initiate inquiries and make reports; and
• consider and advise on any matters brought to the Committee by the Minister of the Environment.

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)
Ms Patricia Lewsley (Deputy Chairperson)¹

¹ Ms Patricia Lewsley replaced Ms Carmel Hanna as Deputy Chairperson on 21 January 2002.
² Mr Billy Armstrong replaced Mr James Leslie on 8 April 2002.
³ Mr David McClarty replaced Mr Tom Hamilton on 26 February 2001, who had previously replaced
Mr Tom Benson on 29 January 2001. Mr Benson died on 24 December 2000.
⁴ Mr Francie Molloy replaced Mr Mitchell McLaughlin on 4 February 2002.
⁵ Mrs Mary Nelis replaced Mr Mick Murphy on 1 July 2002.
⁶ Mr Michael Coyle replaced Mr Arthur Doherty on 16 September 2002.

TABLE OF CONTENTS

Introduction

The Evidence on the Bill

Appendix 1 - Minutes of Proceedings
Appendix 2 - Minutes of Evidence
Appendix 3 - Written Evidence and other correspondence considered by the Committee
Appendix 4 - Written Submissions to the Committee

INTRODUCTION

1. The Planning (Amendment) Bill (the Bill) was referred to the Committee for consideration in accordance with Assembly Standing Order 31(1) on completion of the Second Stage Reading of the Bill on 24 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 Planning (Amendment) Bill would be within the legislative competence of the Northern Ireland Assembly."

3. The stated purpose of the Bill is as follows:

(i) simplify, streamline and strengthen the Department's existing enforcement powers and introduce some new enforcement powers;

(ii) improve control over development through a series of measures;

(iii) give prime importance to development plans in the determination of planning applications; and

(iv) provide the Planning Appeals Commission with greater operational flexibility.

EVIDENCE ON THE BILL

4. The Minutes of Proceedings relating to this Bill, for the meeting up to and including 10 October 2002, are contained in Appendix 1

5. The Committee had before it the Planning (Amendment) Bill (NIA 12/01) and the Explanatory and Financial Memorandum that accompanied the Bill.

6. The Bill meets a commitment by the previous administration to the House of Commons Northern Ireland Affairs Committee to introduce into Northern Ireland's planning law the new enforcement provisions contained in the Planning and Compensation Act 1991 in England, Scotland and Wales. It also introduces some new measures such as Building Preservation Notices that were already a feature of planning law elsewhere in the UK.

7. In March 1999, the Department issued a Consultation Paper entitled 'Proposals for Amendments to Planning Legislation in Northern Ireland'. The Paper was given wide consultation circulation to District Councils, environmental groups, professional bodies, government departments and agencies, academics, residents' groups, businesses and others. On 28 June 2001, Departmental Officials gave a presentation to the Committee on the Department's proposals for a Planning (Amendment) Bill. The Department's letter of 7 June 2001 summarised the proposed Bill and the anticipated timetable for introduction to the Assembly - this is included in Appendix 3, Annex 1 along with a copy of the March 1999 Consultation Paper and a summary of the responses to the Consultation.

8. The Committee subsequently wrote to the Department on 13 September 2001(Appendix 3, Annex 2 refers) requesting a comprehensive written update on the issues raised on 28 June 2001.

9. The then Minister of the Environment, Mr Foster wrote to the Committee Chairperson on 19 September 2001 (Appendix 3, Annex 3 refers) responding to the Committee's request of 13 September 2001. The letter provided the Committee with a detailed paper specifically addressing the Committee's concerns raised on 28 June 2001. This included the absence of measures in the proposed Bill to introduce Third Party Appeals and of provisions to make it an offence to commence development without planning permission. Another paper provided a summary of the proposed content of the Bill.

10. Departmental Officials gave a presentation to the Committee on the Minister's letter and associated papers on 20 September 2001 and answered Members' questions. The Committee requested a copy of a research project report by Queen's University of Belfast (QUB) on the possible implications of Third Party Appeals in Northern Ireland. The Report was part-funded by the Department and was forwarded to the Committee on 22 April 2002. The Report, which runs to some 117 pages, is available on e.mail: g.ellis@qub.ac.uk

11. The then Minister of the Environment, Mr Foster, wrote to the Committee Chairperson on 18 December 2001 (Appendix 3, Annex 4 refers). The letter provided a detailed Position Paper on the Bill which included the Minister's decision that the Policy Memorandum on the Bill to be forwarded to the Executive Committee would not include the Committee's proposal for the introduction of Third Party Appeals and the need to make it an offence to commence development without planning permission. The Committee discussed this letter and Position Paper at its meeting of 10 January 2002 and requested a copy of the Policy Memorandum as soon as possible.

12. The Committee received a copy of the Policy Memorandum proposals by way of the Department's letter of 12 February 2002 (Appendix 3, Annex 5 refers). This was discussed with Departmental Officials on 21 February 2002. A follow-up letter from the Committee dated 22 February 2002 (Appendix 3, Annex 6 refers) urged the Department to re-consider its position on Third Party Appeals and making it an offence to commence development before planning permission. The Committee also sought clarification and more information on a number of the new enforcement measures in the proposed Bill.

13. The Minister of the Environment, Mr Nesbitt, replied to the Committee's letter of 22 February, on 17 April 2002 (Appendix 3, Annex 7 refers). The Minister's letter highlighted that:

(a) Officials will look again at the proposed level of fine that can be imposed in a Magistrates' Court;

(b) further research is being commissioned on the issue of including in the Bill to make it an offence to commence development before planning permission; and

(c) while stating that he believed that the major issue of Third Party Appeals cannot be dealt with in the current Bill, Officials will continue to actively pursue the many complex issues involved and further research has been commissioned.

The Minister concluded by saying that his Officials will submit a detailed paper on these issues to the Committee, before Summer Recess for discussion.

14. The Committee discussed the Minister's letter of 17 April at its 25 April 2002 meeting. A further letter dated 26 April 2002 (Appendix 3, Annex 8 refers) was sent to the Department requesting information on the research and other work being taken forward on Third Party Appeals and to introduce an offence to commence development without planning permission. Further clarification was asked for on a number of other issues including the increase in the level of fines that can be imposed in a Magistrates' Court for planning offences.

15. The Department responded in its letter of 30 April 2002 (Appendix 3, Annex 9 refers) which included details of the research work commissioned from QUB on a new offence for unauthorised development and Third Party Appeals. The response also covered the issue of increasing the maximum level of fine, on summary conviction, beyond the £20,000 currently proposed, and issues on 'spot listing' powers. Finally, included with the letter were copies of some requested responses to the Department's 1999 Consultation Exercise - namely the Royal Town Planning Institute, the Historic Building Council, Ulster Architectural Heritage Society and Environmental Link.

16. Departmental Officials appeared before the Committee on 2 May 2002 to present and discuss the issues covered in the 30 April 2002 letter and attached paper. Officials agreed to copy the draft Bill to the Committee as soon as possible, together with the Department's proposals to the NIO for new offences and higher fines.

17. On 23 May 2002, the Department wrote to the Committee (Appendix 3, Annex 10 refers) enclosing a copy of the proposed Planning (Amendment) Bill, the Explanatory and Financial Memorandum and the Minister's letter of 21 May 2002 to the Secretary of State for Northern Ireland alerting him to proposals in the Bill to create new offences and increase levels of fines in respect of certain planning offences.

18. Departmental Officials discussed with the Committee on 30 May 2002 the documents attached to the 23 May 2002 letter. Officials were requested to provide the Committee with copies of the draft case to the NIO for higher fines and the new offence in relation to unauthorised development, plus a more meaningful analysis of the responses to the Department's Consultation Exercise of March 1999.

19. Following the formal introduction of the Planning (Amendment) Bill to the Assembly on 10 June 2002, the Committee agreed at its meeting of 13 June 2002 to write to all Chief Executives of District Councils and all those who provided a substantial reply to the March 1999 consultation exercise, seeking comments and, in particular, any concerns on the specific terms of the Bill. The Committee's letter to these consultees dated 13 June 2002 is found at Appendix 3, Annex 11 along with a list of addresses.

20. On 24 June 2002 the Assembly agreed the Second Stage of the Bill. The Hansard record is at Appendix 3, Annex 12.

21. On 27 June 2002, Departmental Officials appeared before the Committee to present and discuss three policy papers together with two papers from QUB. The policy papers attached to the Minister's letter of 24 June 2002 to the Chairperson of the Committee (Appendix 3, Annex 13 refers) addressed the subject of Third Party Appeals (A), Development commenced without Planning Permission (B) and Levels of Fines (C). The Department's letter of 24 June 2002 to the Committee (Appendix 3, Annex 14 refers)attached a summary of the QUB research findings on Third Party Appeals (A) and the creation of a new offence for unauthorised development (B). The full QUB reports are available via e-mail on g.ellis@qub.ac.uk and s.mc.kay@qub.ac.uk respectively. The Committee requested that Officials provide copies as soon as possible of the draft cases being made to the Secretary of State for the creation of a new offence re unauthorised development and for a further increase in the level of fines for certain planning offences.

22. On 4 July 2002, Departmental Officials again appeared before the Committee to give a structured Clause-by-Clause presentation on the Bill. This included a short explanation of the purpose of each clause and how the concerns of respondees to the Department's consultation exercise of March 1999 were addressed (as appropriate) in the Bill. A copy of the Officials' speaking notes are including in Appendix 3, Annex 15. The Committee, in addition to awaiting the draft cases to the Secretary of State referred to above, requested a paper from the Department on Third Party Appeals focusing on a potential range of acceptable appellants. A complete set of all the responses to the March 1999 consultation exercise was provided to the Committee prior to 4 July 2002. These are available in hard copy in the Committees Office and have not been reproduced in this Report.

23. On 9 July 2002 the Committee wrote to the Department as a follow-up to the 4 July meeting (Appendix 3, Annex 16 refers). The letter highlighted the papers requested of the Department, including the analysis of the responses to the March 1999 consultation exercise. It also enclosed a further response to the Committee's letter of 13 June 2002 to specific consultees - in all 18 responses were forwarded to the Department. These are to be found in Appendix 4 of this Report which contains a summary index for ease of reference.

24. On 24 July 2002, the Department wrote to the Committee in response to its letter of 9 July 2002 enclosing an analysis of responses to Committee consultations together with a copy of the Department's consideration of the responses to its March 1999 consultation exercise. (Appendix 3, Annex 17 refers.)

25. On 5 September 2002, Departmental Officials gave a presentation to the Committee on a revised Clause-by-Clause version of the Department's analysis of the sixteen responses received to the Committee's consultation on the Bill. (Appendix 3, Annex 18.)

26. On 11 September 2002, the Department wrote to the Committee forwarding a copy of the paper on Third Party Planning Appeals and a copy of the draft Policy Memorandum on increasing the maximum level of fines that can be imposed in a Magistrates' Court and making it an offence to commence development without planning permission. (Appendix 3, Annex 19.)

27. On 12 September 2002, the Minister, together with Departmental Officials, attended the Committee meeting and spoke to and discussed with Members the paper on Third Party Planning Appeals and the draft Policy Memorandum.

28. On 19 September 2002, Departmental Officials completed a structured Clause-by-Clause discussion on the Bill. Key issues discussed included listed buildings, replacement of trees, demolition, dismissal of appeals in cases of undue delay, Planning Agreements, Building Preservation Notices and status of development plans. It was agreed that the Officials would return at a future meeting to address concerns raised by the Committee on several issues.

29. On 2 October 2002 the Minister wrote to the Committee Chairperson on the outcome of his deliberations on a number of issues, namely, the increasing of the maximum Level 3 fine from £1,000 to £5,000, the retention of the date of effect of a Stop Notice, the problem surrounding the removal of trees before development and making available to courts the power to impose custodial sentences in all breaches of planning control. (Appendix 3, Annex 20.)

30. On 3 October 2002 the Committee received a letter from Mr John Woods, Friends of the Earth, suggesting potential amendments to the Bill that would provide for the introduction of Third Party Appeals. (Appendix 3, Annex 21.)

31. On 3 October 2002 Department Officials gave a presentation to the Committee on the Minister's letter of 2 October 2002 and further discussed some of the Committee's concerns arising from their presentation on 19 September 2002. At the end of the presentation, the letter from Mr John Woods, Friends of the Earth, was passed to the Officials for their consideration - it was agreed that they would speak on this at a future meeting. (Note that the Minutes of Evidence in respect of 3 October 2002 (Appendix 2) have not been examined by Members or witnesses.)

32. On 9 October 2002 the Minister copied to the Committee a letter he had sent that day to the Secretary of State to seek consent for the introduction of a new offence of commencing development without planning permission and to increase the maximum fine of £20,000 to £30,000. (Appendix 3, Annex 22.)

33. On 10 October 2002 the Minister wrote to the Committee Chairperson to advise that he now accepted the Committee's contention that, subject to health and safety considerations, Stop Notices should take effect immediately and that he agreed to amend the Bill to give Councils a statutory consultative role both when an Article 40 Agreement is being drawn up and when subsequently processing an application for the Agreement to be varied, modified or discharged. (Appendix 3, Annex 23.)

34. On 10 October 2002 the Committee also received a letter from the Belfast Metropolitan Residents' Group (BMRG) with comments on the proposed Bill. (Appendix 3, Annex 24.)

35. On 10 October 2002 Department Officials attended the Committee meeting and gave a short presentation on the Minister's letters of 9 October and 10 October 2002. The Officials also addressed some more of the Committee's concerns from the meeting of 19 September 2002. At the end of the presentation, the letter from BMRG was passed to the Officials for their consideration - it was agreed that they would speak on this at a future meeting.

36. On 10 October 2002 the Committee agreed to order to print an Interim report containing the factual evidence on the Bill received to date.

Appendix 1

MINUTES OF PROCEEDINGS
RELATING TO THE REPORT

THURSDAY, 14 JUNE 2001
ROOM 144, PARLIAMENT BUILDINGS

Present: Rev Dr Wm McCrea MP (Chairperson)
Ms C Hanna (Deputy Chairperson) 
Mrs J Carson
Mr A Doherty
Mr D Ford
Mr D McClarty
Mr M Murphy
Mr E Poots
Mr D Watson

Apologies: Mr M McLaughlin

In attendance: Mr J Simmons (Committee Clerk)
Mr J Beatty (Assistant Clerk)
Mr J Nulty (Executive Support)
Miss M Devine (Administrative Support)

The meeting commenced at 10.31am.

8 Planning (Amendment) Bill

Mr E Poots left the meeting at 1.10pm.

The Committee discussed the Department's request to give an initial presentation on its proposals.

Agreed: To receive a presentation from the Department on 28 June 2001.

REV DR WILLIAM McCREA
Chairperson

[Extract]

THURSDAY, 28 JUNE 2001 
ROOM 144, PARLIAMENT BUILDINGS

Present: Rev Dr Wm McCrea (Chairperson)
Ms C Hanna (Deputy Chairperson) 
Mrs J Carson
Mr D Ford
Mr J Leslie
Mr M McLaughlin
Mr M Murphy
Mr E Poots
Mr D Watson

Apologies: Mr A Doherty
Mr D McClarty

In attendance: Mr J Simmons (Committee Clerk)
Mr J Beatty (Assistant Clerk)
Mr J Nulty (Executive Support)
Miss M Devine (Administrative Support)

The meeting commenced at 10.18am.

4. Presentation on proposals for a draft Planning Amendment Bill

Mr D Small, Mr J Lambe and Mr N McKillen, Officials from the Department joined the meeting at 11.57.

They gave a presentation on the proposed draft Bill.

Mr E Poots joined the meeting at 12.01pm.

After their presentation, the Officials answered questions of concern from the Members.

Mr M McLaughlin left the meeting at 12.35pm.

The Chairperson thanked the Officials and they left the meeting at 12.47pm.

Mr D Watson left the meeting at 12.47pm.

Agreed: That the Officials would return in September to update the Committee on progress and how the Committee's concerns will be addressed.

REV DR WILLIAM McCREA
Chairperson

[Extract]

THURSDAY, 20 SEPTEMBER 2001 
ROOM 144, PARLIAMENT BUILDINGS

Present: Rev Dr Wm McCrea (Chairperson)
Ms C Hanna (Deputy Chairperson) 
Mrs J Carson 
Mr A Doherty
Mr D Ford
Mr D McClarty
Mr M Murphy
Mr E Poots
Mr D Watson

Apologies: Mr J Leslie
Mr M McLaughlin

In attendance: Mr J Simmons (Committee Clerk)
Mr J Beatty (Assistant Clerk)
Mr J Nulty (Executive Support)
Miss M Devine (Administrative Support)

The meeting commenced at 10.03am.

7. Proposals for the Planning Amendment Bill

Mr J McConnell, Mr J McClelland, Mr Ian Maye and Mr David Small, Officials from the Department, joined the meeting at 12.35am.

Mr D Ford rejoined the meeting at 12.40am.

The Officials gave a presentation on the current proposals for the forthcoming Planning Amendment Bill and responded to some of the queries raised at their previous attendance on 28 June 2001.

Mrs J Carson left the meeting at 1.02pm.

Mr E Poots left the meeting at 1.11pm.

The Chairperson thanked the Officials for their attendance and they left the meeting at 1.17pm.

Mr D Ford left the meeting at 1.17pm.

Agreed:To ask the Department for a copy of the QUB research.

REV DR WILLIAM McCREA
Chairperson

[Extract]

THURSDAY, 6 DECEMBER 2001 
ROOM 144, PARLIAMENT BUILDINGS

Present: Rev Dr Wm. McCrea (Chairperson)
Ms C Hanna (Deputy Chairperson)
Mrs J Carson
Mr D Ford
Mr D McClarty
Mr M McLaughlin
Mr M Murphy
Mr E Poots
Mr D Watson

Apologies: Mr A Doherty
Mr J Leslie

In Attendance: Mr J Simmons (Committee Clerk)
Miss J Adair (Assistant Clerk)
Mr J Beatty (Assistant Clerk) 
Mr J Nulty (Executive Support)
Mr M McCourt (Administrative Support)

The meeting commenced at 10.31 a.m.

7. Any other Business

(ii) The Committee briefly discussed the presentation by Departmental Officials at its 20 September 2001 meeting on the Planning (Amendment) Bill.

Agreed: To clarify any outstanding questions the Committee might have on this issue.

REV DR WILLIAM McCREA
Chairperson

[Extract]

THURSDAY, 10 JANUARY 2002 
ROOM 144, PARLIAMENT BUILDINGS

Present: Rev Dr Wm. McCrea (Chairperson)
Mr A Doherty
Mr D Ford
Mr J Leslie
Mr D McClarty
Mr M McLaughlin
Mr M Murphy

Apologies: Ms C Hanna 
Mrs J Carson
Mr E Poots
Mr D Watson

In Attendance: Mr J Simmons (Committee Clerk)
Miss J Adair (Assistant Clerk)
Mr J Beatty (Assistant Clerk)
Mr J Nulty (Executive Support)
Ms C Angelone (Administrative Support)

The meeting commenced at 10.34 a.m.

7. Planning (Amendment) Bill

The Committee considered a letter from the Minister of the Environment on the above Bill including the Department's decision not to proceed with the Committee's proposals for this Bill to deal with third Party Appeals or to create a new offence where development has taken place without planning permission. The letter advised the Committee that a Policy Memorandum on the draft Bill is being presented to the Executive Committee.

Agreed: To write to the Department seeking a copy of the agreed Policy Memorandum and highlighting that it is likely that the Committee will invite the Minister and Officials to discuss the Memorandum.

REV DR WILLIAM McCREA
Chairperson

[Extract]

THURSDAY, 7 FEBRUARY 2002 
ROOM 144, PARLIAMENT BUILDINGS

Present: Rev Dr Wm. McCrea (Chairperson)
Ms P Lewsley (Deputy Chairperson)
Mr D Ford
Mr D McClarty
Mr F Molloy
Mr M Murphy
Mr D Watson

Apologies: Mrs J Carson
Mr A Doherty
Mr J Leslie
Mr E Poots

In Attendance: Mr J Simmons (Committee Clerk)
Miss J Adair (Assistant Clerk)
Mr J Beatty (Assistant Clerk)
Mr J Nulty (Executive Support)
Ms C Angelone (Administrative Support)

The meeting commenced at 11.37 a.m.

2. Matters Arising

(ii) The Committee considered a letter from the Department of the Environment in which the Department agreed to provide a summary of the Planning (Amendment) Bill Policy Memorandum when it has been agreed by the Executive Committee.

Agreed: To write to the Department of the Environment requesting an immediate copy of the Policy Memorandum.

To invite Departmental Officials to give a presentation on the progress of the Planning (Amendment) Bill at next week's meeting.

REV DR WILLIAM McCREA
Chairperson

[Extract]

THURSDAY, 21 FEBRUARY 2002 
ROOM 144, PARLIAMENT BUILDINGS

Present: Rev Dr Wm. McCrea (Chairperson)
Ms P Lewsley (Deputy Chairperson)
Mr A Doherty
Mr D Ford
Mr D McClarty
Mr M Murphy
Mr E Poots
Mr D Watson

Apologies: Mrs J Carson

In Attendance: Mr J Simmons (Committee Clerk)
Mr J Beatty (Assistant Clerk)
Mr J Nulty (Executive Support)
Ms C Angelone (Administrative Support)

The meeting commenced at 10.32 a.m.

4. Planning Issues

Ms Cynthia Smith, Mr Ian Maye, Mr David Small and Mr John McClelland, Officials of the Department, joined the meeting at 10.38am.

Mr D McClarty joined the meeting at 10.49am.

After a presentation on proposals within the forthcoming Planning (Amendment) Bill, the Officials answered questions from the Members.

Mr D McClarty left the meeting at 11.38 a.m.

The Officials then gave a presentation on Modernising Planning Processes, a Consultation Document from the Department. After this, they answered questions from the Members.

The Officials left the meeting at 12.07pm.

Agreed: To forward some further questions on the Planning (Amendment) Bill to the Department.

REV DR WILLIAM McCREA
Chairperson

[Extract]

THURSDAY, 2 MAY 2002 
ROOM 144, PARLIAMENT BUILDINGS

Present: Dr Wm. McCrea (Chairperson)
Mr A Doherty
Mr D Watson
Mr B Armstrong 
Mr D Ford
Mr D McClarty 
Mr F Molloy
Mr E Poots

Apologies: Ms P Lewsley (Deputy Chairperson)
Mr M Murphy 
Mrs J Carson

In Attendance: Mr J Simmons (Committee Clerk)
Miss J Adair (Assistant Clerk)
Ms Clairita Flynn (Clerical Supervisor)
Ms Colette Angelone (Clerical Officer)

The meeting commenced at 10.31 a.m.

6. Planning (Amendment) Bill

Ms Cynthia Smith, Mr Ian Maye, Mr David Small and Mr Jackie Lamb, Departmental Officials, joined the meeting at 10.44am to discuss the Bill.

Key issues discussed included the Department's response to the Committee concerns regarding unauthorised development before planning permission, Third Party Appeals, enforcement measures and level of fines.

Departmental Officials agreed to copy the draft Bill to the Committee as soon as possible, together with the Department's proposals to the NIO for new offences and higher fines.

The Chairman thanked the Officials for the presentation and Mr Lamb left the meeting at 11.46am.

The remaining the Officials were then joined by Mr John Linden for the next item.

Mr McClarty left the meeting at 11.46am

Mr Ford left the meeting at 11.46am

REV DR WILLIAM McCREA
Chairperson

[Extract]

THURSDAY, 30 MAY 2002 
ROOM 144, PARLIAMENT BUILDINGS

Present: Dr Wm. McCrea (Chairperson)
Ms P Lewsley (Deputy Chairperson)
Mr B Armstrong
Mr A Doherty
Mr D Ford
Mr D McClarty 
Mr M Murphy 
Mr E Poots
Mr D Watson

Apologies: Mrs J Carson 
Mr F Molloy

In Attendance: Mr J Simmons (Committee Clerk)
Mr J Beatty (Assistant Clerk)
Ms C Angelone (Clerical Officer)
Mr J Nulty (Clerical Officer)
Ms C Flynn (Clerical Supervisor)

The meeting commenced at 10.30 a.m.

5. Planning (Amendment) Bill

Mr David Small and Mr Ian Maye, Departmental Officials, joined the meeting at 11.34am.

Officials answered Members' questions on the proposed Bill.

Key issues discussed included the timescale for the introduction of the proposed Bill, the case for higher levels of fines and new offences in the proposed legislation and the need for a proper analysis of the consultation exercise on the proposed Bill.

Ms Lewsley left the meeting at 12.05pm

The Chair thanked the Officials and they left the meeting at 12.19pm.

Agreed: The Department to provide further information to the Committee, including a draft of the case for higher fines or new offences and an analysis of responses to the Department's consultation.

REV DR WILLIAM McCREA
Chairperson

[Extract]

THURSDAY, 13 JUNE 2002 
ROOM 144, PARLIAMENT BUILDINGS

Present: Dr Wm McCrea (Chairperson)
Ms P Lewsley (Deputy Chairperson)
Mr A Doherty
Mr D Ford
Mr D McClarty
Mr F Molloy
Mr E Poots
Mr D Watson

Apologies: Mr B Armstrong
Mrs J Carson
Mr M Murphy

In Attendance: Mr J Simmons (Committee Clerk)
Mr J Beatty (Assistant Clerk)
Ms C Angelone (Clerical Officer)
Mr J Nulty (Clerical Officer)
Ms C Flynn (Clerical Supervisor)

The meeting commenced at 10.30 am.

6. Planning (Amendment) 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 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
Chairperson

[Extract]

THURSDAY, 27 JUNE 2002
ROOM 144, PARLIAMENT BUILDINGS

Present: Dr Wm. McCrea (Chairperson)
Ms P Lewsley (Deputy Chairperson)
Mr B Armstrong
Mr D Ford
Mr D McClarty
Mr F Molloy
Mr M Murphy
Mr E Poots
Mr D Watson

Apologies: Mrs J Carson 
Mr A Doherty

In Attendance: Mr J Simmons (Committee Clerk)
Mr J Beatty (Assistant Clerk)
Ms C Angelone (Clerical Officer)
Mr J Nulty (Clerical Officer)
Ms C Flynn (Clerical Supervisor)

The meeting commenced at 10.31 a.m.

4. Planning (Amendment) Bill

Mr David Small and Mr Hugh McKay, Departmental Officials, joined the meeting at 11.42am.

They gave a presentation and answered Members' questions on the three policy papers prepared by the Department in light of recent research commissioned from Queens University Belfast.

Mr Watson left the meeting at 11.54am

Key issues discussed included Third Party Appeals, Unauthorised Development and Levels of Fines.

The Chair thanked the Officials and they left the meeting at 12.31pm.

Agreed: The Committee to await the draft cases being prepared by the Department for the creation of a new offence re unauthorised development and for a further increase the level of fines.

REV DR WILLIAM McCREA
Chairperson

[Extract]

THURSDAY, 4 JULY 2002
ROOM 144, PARLIAMENT BUILDINGS

Present: Dr Wm. McCrea (Chairperson)
Ms P Lewsley (Deputy Chairperson)
Mr B Armstrong
Mr A Doherty 
Mr D Ford
Mr F Molloy
Mrs M Nelis
Mr E Poots
Mr D Watson

Apologies: Mrs J Carson 
Mr D McClarty

In Attendance: Mr J Simmons (Committee Clerk)
Mr J Beatty (Assistant Clerk)
Ms C Angelone (Clerical Officer)
Mr J Nulty (Clerical Officer)
Ms C Flynn (Clerical Supervisor)

The meeting commenced at 10.30 a.m.

4. Planning (Amendment) Bill

Ms Marlene Hempton, Mr Jackie Lambe and Mr Hugh McKay, Departmental Officials, joined the meeting at 11.25am.

They gave a structured clause-by-clause presentation on the Bill and answered Members' questions.

Mr Molloy left the meeting at 11.32am

Mr Poots left the meeting at 11.46am

Mr Poots rejoined the meeting at 11.50am

Ms Lewsley left the meeting at 11.55am

Key issues discussed included Stop Notices, Enforcement of the legislation, Unauthorised Development, Tree Preservation Orders and Third Party Appeals.

The Chair thanked the Officials and they left the meeting at 12.15pm.

Agreed: The Committee to await papers on draft cases being prepared by the Department for the creation of a new offence re Unauthorised Development and for further increases to the level of fines. A paper on Third Party Appeals is also awaited.

REV DR WILLIAM McCREA
Chairperson

[Extract]

THURSDAY, 5 SEPTEMBER 2002
ROOM 144, PARLIAMENT BUILDINGS

Present: Dr Wm. McCrea (Chairperson)
Ms P Lewsley (Deputy Chairperson)
Mr B Armstrong
Mrs J Carson
Mr D Ford
Mr D McClarty
Mrs M Nelis
Mr E Poots

Apologies: Mr F Molloy
Mr D Watson

In Attendance: Mr J Simmons (Committee Clerk)
Mr J Beatty (Assistant Clerk)
Ms Hilary Bogle (Assistant Clerk)
Mr J Nulty (Clerical Officer)
Ms C Flynn (Executive Officer)

The meeting commenced at 10.31 am.

5. Planning (Amendment) Bill

Mr David Small and Mr Jackie Lambe, Departmental Officials, joined the meeting at 11.42am. They gave a presentation on the Department's analysis of the sixteen responses received to the Committee's consultation on the Bill and how these have been addressed (or not) in the Bill. They also answered Members' questions on the Bill.

Mr Armstrong left the meeting at 11.50am.

Mr McClarty left the meeting at 12.26pm.

Mrs Carson left the meeting at 12.32pm.

Key issues discussed included Planning Contravention Notices, Enforcement of Conditions, and Time Limits on Enforcement Action, Enforcement Notices and Appeals against these, Offence where Enforcement Notice is not complied with, Execution of works required by Enforcement Notice and Stop Notices.

The Chair thanked the Officials and they left the meeting at 12.34pm.

Agreed: Officials to return to the Committee next week to respond to points raised and to continue their presentation and discussion with the Committee.

REV DR WILLIAM McCREA
Chairperson

[Extract]

THURSDAY, 12 SEPTEMBER 2002
ROOM 144, PARLIAMENT BUILDINGS

Present: Dr Wm. McCrea (Chairperson)
Mr B Armstrong
Mrs J Carson
Mr D Ford
Mr F Molloy
Mrs M Nelis
Mr E Poots

Apologies: Ms P Lewsley (Deputy Chairperson)
Mr D McClarty
Mr D Watson

In Attendance: Mr J Simmons (Committee Clerk)
Mr J Beatty (Assistant Clerk)
Mr J Nulty (Clerical Officer)
Ms C Flynn (Executive Officer)

The meeting commenced at 10.01 am.

2. Planning (Amendment) Bill

The Minister of the Environment, together with Mr Ian Maye, Mr Jackie Lambe and Mrs Marlene Hempton: Departmental Officials, joined the meeting at 10.02 am. The Minister spoke to and discussed with Members two papers submitted to the Committee on major policy issues and then answered Members' questions.

Key issues discussed included Third Party Appeals, increasing the level of fines within the Bill and the introduction of a new offence to commence development without planning permission.

The Minister agreed that his Department would issue a full public consultation on the issue of the introduction of Third Party Appeals into the planning system in Northern Ireland and the consultation would commence before Christmas 2002.

The Chair thanked the Minister and Officials and the discussion ended at 10.25 am.

REV DR WILLIAM McCREA
Chairperson

[Extract]

THURSDAY, 3 OCTOBER 2002
ROOM 144, PARLIAMENT BUILDINGS

Present: Dr Wm. McCrea (Chairperson)
Ms P Lewsley (Deputy Chairperson)
Mr B Armstrong
Mrs J Carson
Mr M Coyle
Mr D Ford
Mr D McClarty
Mr Molloy
Mrs M Nelis
Mr E Poots
Mr D Watson

In Attendance: Mr J Simmons (Committee Clerk)
Mr J Beatty (Assistant Clerk)
Ms H Bogle (Assistant Clerk)
Mr J Nulty (Clerical Officer)
Ms C Flynn (Executive Officer)

The meeting commenced at 10.30am.

3. Planning (Amendment) Bill

Mr Ian Maye, Mr David Small and Mr Jackie Lambe, Departmental Officials joined the meeting at 10.35am.

They spoke to and answered Members' questions on a letter from the Minister of the Environment and on concerns with specific Clauses of the Bill, that Members had raised during the Committee meeting of 19 September 2002.

Mr Ford joined the meeting at 10.37am.

Key issues discussed included levels of fines for breaches of planning law, custodial sentences, Stop Notices and protection of trees. Officials also addressed Members' concerns over the power to dismiss appeals in the case of undue delay, the statutory definition of 'curtilage', Building Preservation Notices and compensation.

Mr McClarty left the meeting at 11.23am.

The Chair thanked the Officials and they left the meeting at 11.24am

Agreed: To invite Officials back to next week's meeting to address Members' outstanding concerns.

REV DR WILLIAM McCREA
Chairperson

[Extract]

THURSDAY, 10 OCTOBER 2002
ROOM 144, PARLIAMENT BUILDINGS

Present: Dr Wm. McCrea (Chairperson)
Ms P Lewsley (Deputy Chairperson)
Mr B Armstrong
Mrs J Carson
Mr M Coyle
Mr D Ford
Mr D McClarty
Mrs M Nelis
Mr E Poots
Mr D Watson

Apologies: Mr F Molloy

In Attendance: Mr J Simmons (Committee Clerk)
Mr J Beatty (Assistant Clerk)
Ms H Bogle (Assistant Clerk)
Mr J Nulty (Clerical Officer)
Ms C Flynn (Executive Officer)

The meeting commenced at 10.30am.

3. Planning (Amendment) Bill

Mr Ian Maye, Mr Wilfred Reavie and Mr Jackie Lambe, Departmental Officials joined the meeting at 10.37am.

They gave a presentation and answered Members' questions on a letter from the Minister of the Environment to the Secretary of State proposing to increase the maximum level of fine in a Magistrate's Court for breaches of planning control to £30,000 and to make it an offence to commence development without planning permission. Members also considered a letter from the Minister of the Environment to the Committee regarding Stop Notices and Article 40 agreements.

Mr Armstrong joined the meeting at 10.39am

Mr McClarty left the meeting at 10.46am

The Committee also considered a written submission on the Bill from the Belfast Metropolitan Residents' Group. Officials agreed to urgently return to the Committee on this and a number of other issues raised by the Committee.

The Chair thanked the Officials and they left the meeting at 10.52am.

Members considered a draft Interim Report on the Bill containing an account of the factual evidence received up to and including today by the Committee.

Agreed: To invite Officials back to next week's meeting to address the Committee's outstanding concerns. That the Interim Report on the Bill is ordered to be printed.

REV DR WILLIAM McCREA
Chairperson

[Extract]

Appendix 2

MINUTES OF EVIDENCE

Thursday 30 May 2002

Members present:

Rev Dr William McCrea (Chairperson)
Ms Lewsley (Deputy Chairperson)
Mr Armstrong
Mr A Doherty
Mr Ford
Mr McClarty
Mr M Murphy
Mr Poots
Mr Watson

Witnesses:

Mr D Small ) The Department of the Environment
Mr I Maye

1.

The Chairperson: I welcome Mr David Small and Mr Ian Maye from the Department of the Environment. They will give a presentation, after which Members can ask questions.

2.

Mr Maye: I thank the Committee for inviting us here. It is a pleasure to reach the stage of presenting a Bill to the Assembly, because it seems to be a long time since we first discussed this issue last June. We have achieved our set target, which was to bring the Bill to the Assembly before the summer recess. We are now on target to have the Bill introduced on 10 June, subject to the Speaker's clearance. He received a letter this morning, and we do not foresee any difficulty.

3.

The Chairperson: It is of course also subject to clearance of the Committee.

4.

Mr Maye: Absolutely.

5.

The Chairperson: Do not take anything for granted.

6.

Mr Maye: I will now bring you up to speed on how we reached this juncture, and what we intend doing now. I will then pass over to Mr Small, who will talk in more detail about the timetable for the rest of the Bill.

7.

We received Executive Committee clearance to introduce the Bill yesterday, which is why we were able to go to the Speaker overnight, and also the Secretary of State's clearance for the current provisions. As you saw from the letter, the Minister has entered into discussions with the Secretary of State on issues that this Committee has raised regarding higher fines in Magistrate's Courts, creating a new offence of commencing development without lawful permission, and third-party appeals. Although we do not require the Secretary of State's consent, there is a wider UK interest, since what we do will inevitably influence the other jurisdictions.

8.

The Minister has briefly discussed the principle with the Secretary of State, who now wants concrete evidence and details. That is the process in which the Minister and the Department are now engaged. Over the next few weeks the Minister would like to engage further with the Committee, particularly on higher fines, but also the creation of a new criminal offence. As you know, we are committed to bringing a paper on creating the new criminal offence to the Committee before the summer recess, and we are actively working on it. We want to have the final version of the Queen's University research so that we can polish up the Bill for the Committee. However, we are certainly on target to deliver it before the summer recess - hopefully, as soon as possible.

9.

We want to engage with the Committee on the correct level of fines. At present we are aiming for £20,000, but the Committee has expressed its concern that the figure is too low. Indeed, the original level of £20,000 was set back in 1991, and we will need to take such matters as inflation into account. The Department will soon put a short paper to the Committee on how we might assess the appropriate level of fines in the Magistrate's Court, bearing in mind our commitment to take cases to the Crown Court where appropriate, an arena in which there will be no limit on what fines may be imposed. We wish to strike a balance and are aware of the Committee's concerns, as is the Minister. He is sympathetic to those concerns, and has informed the Secretary of State as such.

10.

At present we are on target to introduce the Bill on 10 June 2002. If we do so, the Second Stage debate may take place on 24 June. Procedures recently agreed by the Assembly would mean that the Bill goes straight to the Committee after the debate on 24 June, so you will receive it before the summer recess. We forwarded a draft of the Bill last week, since we were keen for you to see it before its introduction. We also thought that it would be useful for you to see the letter to the Secretary of State; indeed, we agreed that when we last met.

11.

I have talked about the higher fines and the proposed new offence. The Minister is sympathetic to the Committee's wishes, but wants to discuss the detail, which is why we are bringing forward a paper. The Department is also committed to bringing forward a detailed policy paper on third-party appeals before the summer recess, and we are engaged in discussions with the Minister on what that paper will cover. We await the final report from Queen's University to refine the paper, but once we have done so we aim to present it to the Committee as soon as possible - certainly before the summer recess. When we provide the papers on the new offence and third party appeals, we also will provide the Committee with copies of the Queen's University research so that you have all the information to hand when considering the issues. When we have done so, we will be at the Committee's disposal to discuss the issues. The Minister has also made it clear that he wants to work with the Committee on these matters.

12.

Mr Small: I have nothing particular to add on the wider issues that Mr Maye has covered, except to explain the anticipated timetable for the Bill. Mr Maye has indicated that the Bill may be introduced on 10 June, and the Second Stage would then be anticipated for 24 June, but that has to be confirmed. It would then pass to Committee Stage and, depending on the duration of that stage, we would then hope to reach Consideration Stage around October. It is difficult to judge how long that process will take, but we would aim to reach Final Stage of the Bill by December or early January 2003, in time to allow Royal Assent to be secured before Assembly is dissolved in advance of next spring's elections.

13.

The Chairperson: This is heavy stuff, and we must ensure that we are getting this right. With the greatest respect, there seems to be great haste, which can sometimes lead to bad examination. You may have your timetable set, but we must get this right because we have a very important duty to fulfil.

14.

Mr M Murphy: I have great difficulty with the £20,000 fine, considering that an entire block of terraced houses was demolished in Portadown. Under the present legislation, how many enforcement actions have been taken, and what way were they dealt with through the courts?

15.

Mr Maye: I will write to you with the precise figures. With regard to enforcement action, Planning Service deals with about 1,500 cases a year. Most are resolved through negotiation, and the developer puts right what has been done beyond the terms of his planning permission, or does things that he should not have done. Around 50 formal cases are taken each year, and a proportion of those end up in court. The aim of taking enforcement action is to put right what has been done, and, in the majority of cases, we can achieve that without taking people to court. In some cases, however, it is necessary to do so. I will write to the Committee with the precise figures.

16.

Mr M Murphy: If a developer demolishes a row of terraced houses, he is fined £4,000 or £5,000, but there is no way that the houses can be replaced.

17.

Mr Maye: It is absolutely clear that the fine levels being imposed and the maximum fine available to the Magistrate's Court do not match the gravity of the offence or the value of the property that has been destroyed. One of our key aims is to give magistrates more leeway to issue higher fines.

18.

We want to take cases to the Crown Court, as some cases must be treated very seriously. The Planning Service was reluctant to take cases to the Crown Court in the past, but the Department is determined to address that. It is important that the Department sends out the strongest possible message to developers and others - if they mess with the system they will get their fingers burnt.

19.

Mr Murphy: Your recommended figure is over £20,000, but this has not been stated clearly.

20.

Mr Maye: The Department does not yet feel that it is a position to state it clearly, which is why we want to engage further with the Committee to identify what level of fine we should aim for. You have made it clear that £20,000 is not high enough, so what level of fine should we aim for - £30,000, £40,000 or higher? We must bear in mind that the Department intends to take cases to the Crown Court, where there will be no limit to the fine. The Crown Court will be able to set a fine at whatever level it sees fit. In doing that, it will have to consider the profit that has accrued to the developer by his committing the offence. That is important, because in some cases - the case that you cited is a good example - developers can make several hundred thousand pounds or, in some cases, several million, and a fine of £20, 000, £30,000, or £40,000 will not make a dent in their profit.

21.

Mr Small: As well as higher levels of fines, the Bill also proposes the introduction of custodial sentences in cases where listed buildings are demolished. It is hoped that the risk of a custodial sentence will carry more weight, and be a greater deterrent than the higher fines.

22.

Mr Maye: Another issue is the attitude of magistrates and the judiciary to the cases, and recent evidence suggests that the attitude is beginning to change. In the dark days of the troubles, magistrates believed that this type of offence was not that important in the grand scheme of things, but that is changing. In a recent case in Rostrevor, a magistrate imposed the maximum fine of £5,000. He said that he would have imposed a higher fine had he had the authority in statute to do so. Magistrates are taking cases more seriously than they would have done before.

23.

The Chairperson: For clarification, the letter that we received from the Minister contained no evidence that he had asked the Secretary of State to consider fines higher than £20,000. Can you show the Committee the relevant paragraph? The letter states the opposite as it says "up to". There is no mention of fines above £20,000.

24.

Mr Maye: The letter had two purposes. One was to secure clearance for the provisions that are already in the Bill, which was necessary for the Department to bring the Bill before the Assembly. The Minister decided to take it in two bite-sized chunks. His first aim was to get clearance for the current provisions in the Bill, which he has agreed. Secondly, in the final paragraph, he wanted to raise the broader issues that the Committee is concerned about, and on which he has views, such as fine levels, the new offence, and third-party appeals.

25.

He decided to divide it tactically into two stages. First, he would discuss the principles with the Secretary of State and bring to his notice the Committee's concerns and the views of other Members of the Assembly, which had been raised with him in general correspondence. He also wanted to sound out the Secretary of State on the principle of going beyond parity with England and Wales - a point that we have discussed with the Committee previously. Having done that, and judged whether the Secretary of State was warm to the idea, the Minister will now consider concrete proposals. Those proposals are not, and cannot be, on the table at present, because the Department has not decided what they should be. The Department and the Committee must agree the level of fines we are aiming for, and why, so that we can put the case to the Secretary for State.

26.

If a new criminal offence is created, there should be agreement on what that offence should be, what it should cover, what the fines and penalties should be, and in what circumstances it should be applied. That is essentially the Minister's tactic in approaching the Secretary of State about these issues, and I re-emphasise that he wants to work with the Committee on these issues. When he goes to the Secretary of State he wants to put a good case - one that commands the Committee's agreement and support.

27.

The Chairperson: Is the Minister making the case on your acknowledgement that the situation in Northern Ireland is radically different?

28.

Mr Maye: He has made the case that there is strong feeling on these issues across Northern Ireland that will not go away. The public, the Assembly and the Committee for the Environment feel strongly that we should be doing these things.

29.

The Chairperson: You want the Committee to set a figure. From the example that you got this morning, you should know that the Committee could not set a figure for that. Surely a court must be - not may be - made to take regard of the financial benefit. It would be useless for the Committee to set a figure of £35,000 if someone earned £1 million. Rather than tying a court to a maximum, the judgement must consider the financial benefit.

30.

Mr Maye: We are proposing that for the Crown Court.

31.

The Chairperson: I am not talking about the Crown Court; I am talking about the Magistrates' Court. Why can it not be included in the legislation?

32.

Mr Maye: The cases that go to the Crown Court will be included in the legislation. We must take those cases in which the developer stands to make a profit of £1 million out of the Magistrates' Court and into the Crown Court, so that the Crown Court can look at it seriously and set the appropriate fine.

33.

In the UK justice system, magistrates are given a fine level to work with, and, until now Magistrates' Courts have traditionally had limited powers. That reflects the nature of the cases that should be brought before the Magistrates' Court. If they are sufficiently serious to attract a very heavy fine - [Interruption].

34.

TheChairperson: The number of cases that the Department has taken to any court does not give us confidence that any other cases will reach the Crown Court. Frankly, if a case gets to the Magistrates' Court, the Committee would like to know that the person will not get a mere rap over the knuckles, but something that they will fear. It is hard enough getting the Department to bring a case to the Magistrates' Court, but it is another matter to promise the Committee that all will be well when it gets to the Crown Court. I am not confident about that.

35.

Mr Armstrong: It should be calculated on a percentage basis of the value of the property.

36.

Mr Murphy: In Rostrevor, the contractor was fined £5,000. The same contractor paid £80,000 to the resident to knock down her garage. This issue must be tackled seriously.

37.

Mr Doherty: You mentioned three policy papers setting out your position on enforcement liabilities and third party appeals. When do you expect those to be available, and to whom will you make them available?

38.

Mr Maye: We will give them to the Committee. We are committed to doing that before the summer recess, but I want to have those papers with the Committee within the next couple of weeks, to give you an opportunity to consider them before the summer recess.

39.

Mr Doherty: I asked because the Committee must also examine the consultation on 'Modernising Planning Processes', and the deadline for that is 14 June. Could you meet that date?

40.

Mr Maye: I cannot commit to that, because we are still waiting for the final report from Queen's University. We want to see their final report so that we can build any of that evidence into the papers that come to the Committee. We will present you with the best possible case.

41.

The Chairperson: Being honest, you are not going to introduce it in this Bill.

42.

Mr Maye: I would not necessarily rule that out.

43.

The Chairperson: This Committee forcefully holds this view. It may be just starting to percolate into the Department, but make no mistake; it is not going to go away. The Department can resist it, but the will of the elected representatives will have to be tested and proved if the Department is not willing to deal with that head-on.

44.

Mr Maye: The Minister is under no illusion that that is the case. At present he is not persuaded of the case for the introduction of third party appeals, but he wants to enter into more detailed discussion on the matter with the Committee. With regard to higher fine levels in the Magistrate's Court, and a new criminal offence, I would not rule those out. We can bring forward amendments, if necessary, during the passage of the Bill, as can the Committee, so I would not rule those out at all.

45.

Mr Ford: I do not want to go over the issue of the fines again. However, I note in paragraph 12 of the explanatory memorandum that there are likely to be some marginal financial implications for the Department with the introduction of the main provisions. What is the point in having enforcement powers, or talking about taking matters to the Crown Court if you are only talking about marginal financial implications? It sounds to me like the Department is not going to take the matter seriously, even with these powers. Surely the point of having these powers is to make use of them. We have had enough instances highlighted in every part of Northern Ireland of the need for much more action on enforcement powers. You have just been talking about the issue of the Crown Court, so is that not a misleading statement?

46.

Mr Maye: We are looking at the whole structure of the Planning Service - how it delivers its work and its Programme for Government commitments. We will not necessarily need much more resources to do a better job on enforcement. We are looking at the balance of how our work is done, and whether we have sufficient resources within the Planning Service already devoted to enforcement work. The Minister is keenly aware that up until now we have not devoted a substantial proportion of our resources to enforcement. This legislation should simplify the whole process, so that with current resources we should be able to do a great deal more because the process will be simpler and more streamlined. It will be much easier to progress, and get to court if we need to get to court. There is an issue about the balance of resources in the existing Planning Service that we devote to enforcement work, and we are working quite actively on that.

47.

In addition, we are currently engaged in a review of planning fees, and propose to bring forward a consultation paper later in the year. We will look at whether enforcement work, or at least a proportion of that work, should or can be funded from the fees paid by applicants. At the moment it is not. The fees cover development control work, but do not cover enforcement, the development of planning policy, or many other things that the Planning Service does. It may well be that we can generate more income through planning fees to devote to enforcement. There would be no greater drain on the public purse if more of the burden were placed on applicants and others. We are looking at a range of issues here.

48.

Mr Ford: In taking that approach, you place more of a burden on those who are going through the planning process properly to deal with those who are making a mockery of the law. That seems to me to be the reverse of what you should be doing.

49.

Mr Maye: We have not reached any decision on the matter, which is why we want to engage in public consultation. However, we are looking at whether we should go along that line, or, indeed, whether we should introduce punitive fees for those who go ahead and commence development without permission. They should pay a higher fee than someone who follows the process

50.

Mr Ford: That is the exact reverse of what you outlined earlier.

51.

Mr Maye: No. It is one of the options - and they are nothing more than that. Some may be mutually contradictory, but they must all be expounded, discussed and debated with the Committee and the public. We are examining the issue, and you will see what we have in mind when we bring forward the consultation paper. We look forward to the debate.

52.

Mr Ford: Should the concept of punitive fees not be included in the Bill?

53.

Mr Maye: If the policy had been developed, we would have done that. The issue is only now beginning to come to the fore, and it is being explored in Northern Ireland and in England. In England it is part of their review of planning fees. The idea had not been generated before, and would not have arrived in time to build into this Bill, but I should not rule out its being in the next Bill.

54.

Mr Ford: What provisions are there currently for the Department to obtain costs for taking enforcement action through the courts?

55.

Mr Maye: We can ask for costs, and it will be up to the magistrate or judge to decide what costs are awarded against the offender. In some cases they have been awarded, and in others they have not. The judgement is one for the court to make, but we can and do apply for costs.

56.

Mr Ford: It would be interesting to see the current statistics on how successful that has been.

57.

Mr Maye: We do not do very well, since courts and magistrates do not see the Government as needing costs. We press for them in every case.

58.

Mr Ford: Your being so unsuccessful because of magistrates' failure to impose costs proves the case for punitive fees as an additional statutory measure.

59.

Mr Maye: We need many tools in our armoury to deal with enforcement issues and unauthorised development. That is one of the options that I want to explore with the Committee and the public. The issue is being explored across the UK, and in some other jurisdictions. We should be ready to present proposals for discussion on that and a range of other issues after the summer.

60.

Mr Poots: Mr Ford has taken us well down the road that I wished to take. Where does the money from court fines go?

61.

Mr Maye: It goes back to the UK Government - not the Department of the Environment.

62.

Mr Poots: It goes back to the Treasury?

63.

Mr Maye: Yes. It goes back to the consolidated fund, which is managed by Treasury. We cannot currently get our hands on that money.

64.

Mr Poots: I agree with Mr Ford that it would be wholly inappropriate to increase fees for those making legitimate planning applications to pay for those breaking the law. We should seek some self-sustaining mechanism, whereby the fines imposed on those breaking the law flow back into your own coffers to run the enforcement section properly.

65.

Mr Maye: We shall explore that.

66.

Mr Poots: I look forward to seeing you go down that route.

67.

Mr McClarty: I agree with the provision of third-party appeals in principle, but what do you perceive as the effect of such a procedure on the planning application process? Would it slow it down, and could that be resolved by an increase in fees to enable more personnel to be employed for planning applications?

68.

Mr Maye: We could speed up the initial process to some degree, and that is part of the aim of 'Modernising Planning Processes'. We also intend to recruit new staff so that we can process more applications, more quickly than at present.

69.

The Chairperson: Cut through some of the bureaucracy.

70.

Mr Maye: You are quite right. There is no doubt that, with the best will in the world, third-party appeals will introduce substantial delays for those cases that are appealed, though not necessarily for the others. The evidence so far from our research in the Republic is that it introduces an average delay of around 11·4 months on top of the time it takes to reach the initial decision. The Committee and the Assembly will need to consider this issue, since it could have a substantial impact, not only on the planning system, but also on the wider economy. By their very nature, applications likely to be appealed by third parties are those that are contentious, and attract objections at the outset. We quite often find that applications that invite objections, and which are considered contentious, are those that will help develop the economy if delivered. However, there is a balance to be struck; natural justice speaks for third-party appeals, which allow everyone a "fair crack of the whip".

71.

On the other hand, we must look quite seriously, not only at the impact of such factors as delayed applications and additional costs on the planning system, but also at the potential impact on the Northern Ireland economy as a whole. Other jurisdictions have designed their whole system around third-party appeals. They have examined the initial process to make it as streamlined as possible. The initial decision is made very quickly, after which the applicant - or the third party - has the right of appeal. In those jurisdictions, the majority of applications are determined very quickly. Those that go to the appeals system take longer, but a balance is struck between the two.

72.

In Northern Ireland we are starting from a slightly different position, since we already have a system in place. That system will be examined as part of the review of public administration, and I have no doubt that the review team will consider this issue, which will generate a great deal of debate. The issue has regularly arisen during my visits to councils in recent weeks. Where should power for development control decisions lie? You can imagine that there are various views on the issue, but it is likely to be considered in the review of public administration. There is an opportunity to examine the fundamentals of the whole system and get things right, moving away from the system introduced in 1973, which moved planning from locally accountable representatives on councils to central government. The issue must be seriously examined as part of the review.

73.

The Chairperson: Of course, if you were the offended person, you would like to have natural justice. By all means speed everyone else's cases, but be sure that you get justice for yourself. The issue is justice and human rights for all.

74.

Mr Armstrong: Everything in this world has a lifespan. We expect historical buildings to last - to be renovated and remain for ever. Trees too have a lifespan, and some have orders placed on them so that they cannot be removed. However, a tree might only have a two or three year lifespan left, so what do you propose to fine someone if you can determine the life left in a tree? How will you manage that?

75.

Mr Maye: In taking a case to court, we would have to convince the court that the tree was not dead, dying or dangerous, which really depends on the assessment made by a professional arboriculturalist, on whose advice we would rely. If the tree has or is reaching the end of its natural lifespan, that will have an impact on whether we take action against the person who might have cut it down - provided they can demonstrate that. That is part of the equation that the court, and the Department - as a prosecuting authority - would consider in making a decision. That happens at present.

76.

The Department's suggestion in the Bill is that it is too easy for a person who cuts down a tree to argue that the tree was dead, dying or dangerous, and we want to tighten that up. However, there will be cases where the tree is just about to fall over or has reached the end of its life, and it is perfectly fine to cut it down. The Department wants the landowner to seek permission before he or she cuts it down, because the Department can then consider the evidence presented by the professional arboriculturalist, and make a judgement about whether or not the tree should be cut down.

77.

Tree preservation orders are not necessarily about eternal preservation. They are about the management of trees and woodland. Management takes account of the fact that woodland, by its very nature, changes with time. Trees grow, mature, eventually die and need to be replaced. The orders are the Department's tools with which to manage that process. There will be occasions when a tree is close to, or has reached the end of its natural life, and may become a danger. In that case, if the landowner seeks permission from the Department to cut down the tree, the Department may grant that permission. However, it may also insist on replanting a tree.

78.

Mr Armstrong: In other words, you are saying that it is not the tree that matters, but the area where the tree should be.

79.

Mr Maye: Absolutely. The character and overall "feel" of the area, and the amenity that it provides to the public are important and must be protected. Trees are a limited natural resource. Northern Ireland does not have many trees, so we should protect the ones we have.

80.

Mr Armstrong: Regardless of a tree's condition, is it possible that if it comes down another tree may go up in its place?

81.

Mr Small: That is one of the provisions in the Bill. It is designed for that kind of situation, so that the Department can insist on replacement.

82.

Mr Armstrong: On the point I raised earlier, I believe that the fine should not be £20,000, but a percentage of the value.

83.

Mr Maye: The Department will consider that suggestion.

84.

Mr A Doherty: I hesitate to revisit the third party appeals issue. However, if the planning policies and procedures were clearer and stronger, and less prone to misinterpretation or to a variety of interpretations, would there be less need for third party appeals? Having a measure for third party appeals, but also making them less likely to happen through having clearer policies might resolve the problem.

85.

Mr Maye: I think so, because if planning policy was clearer, and if it commanded widespread support - not only among the political community but also the wider community - and if area plans were correct and up to date, there would be much less opportunity for people to disagree with a decision. The Department hopes that, in those circumstances, it would get the decision right first time, and that it would be defensible. I agree that that would make the case against a decision slightly weaker, though not altogether remove it. However, it would be a step in the right direction.

86.

The Chairperson: You mentioned higher fines, and you talked about drawing up a case. Is it possible for the Committee to obtain a draft copy? To date, the Committee has no knowledge of the case being drawn up, and there was no indication of it in the Minister's letter.

87.

Mr Maye: The Department's next stage is to bring the case to the Committee for discussion.

88.

The Chairperson: Is it possible for the Committee to obtain a draft soon, so that there can be meaningful discussion? We want to feed in our proposals now rather than at the end of the process.

89.

Mr Maye: Much work needs to be done on higher fine levels, particularly given the points raised today. The Department hopes to present it to the Committee soon. However, in its current state it would not be of much help to the Committee.

90.

The Chairperson: The Committee would like to see the draft as early as possible. We will decide whether it is helpful or not.

91.

Mr Maye: It is hoped that you will have all the papers in the next few weeks.

92.

The Chairperson: I would also like to receive the Queen's University research as soon as possible.

93.

I want to mention one other thing before we finish. Even though this is an important issue, I am concerned that you have only sent the Committee responses that date from April 1999. There are no up-to-date papers. The Committee has the proposed amendments to planning legislation, and an analysis of responses to the discussion document. There are a lot of them, but what do they mean? In some instances there is a "yes" or "no" with a general comment, but the Committee has no details of what the concerns were or if they were met. It is doubtful whether or not the responses from 1999 are meaningful because they may be out of date. To make a judgement, the Committee requires more detailed comments and documentation with more than a "yes" or a "no". Relevant analysis is required and the Committee must know what concerns were expressed and how they were addressed.

94.

Mr Maye: The Department will work with your officials to provide that. Would it be helpful in the meantime to give you copies of the responses? Some respondents asked for their responses not to be released, but I can give you details on other responses, and then we may work on the broader analysis.

95.

The Chairperson: In these days of open government and freedom of information, I am not sure if such requests for anonymity are allowed. What is good enough for your eyes is good enough for ours.

96.

Mr Maye: As the responses were made in 1999, the people who made responses were entitled to say that they did not want them to be released. The Department must respect that until the Freedom of Information Act becomes fully effective in January 2005. The Department can, if you wish, write to the respondents informing them of the Committee's request for sight of their response.

97.

The Chairperson: Yes, that would be helpful. The Committee wishes to be sensitive, but we do want the papers.

98.

Thank you for your contribution to this morning's Committee session.

MINUTES OF EVIDENCE

Thursday 27 June 2002

Members present:

Rev Dr William McCrea (Chairperson)

Mr Armstrong

Mr Ford

Mr Molloy

Mr M Murphy

Mr Watson

Witnesses:

Mr H McKay ) Department of

Mr D Small ) the Environment

99.

The Chairperson: Gentlemen, it is a pleasure to have Mr McKay and Mr Small from the Department of the Environment with us. Perhaps you will make your presentation on the Planning (Amendment) Bill, Mr McKay. I apologise for the delay - we were dealing with another important matter.

100.

Mr McKay: Mr Chairman, thank you for your welcome. I apologise for Cynthia Smyth and Ian Maye, who cannot be with us today.

101.

The Planning (Amendment) Bill completed its Second Stage on 24 June and is now at the Committee Stage. Next week, officials will be meeting again with the Committee to discuss the details. Our presentation deals with three important aspects of the Bill that the Committee has raised: third-party appeals; dealing with unauthorised development; and the levels of fines. The Committee has received detailed policy papers from the Minister on each subject, which analyse the issues involved and set out the Department's conclusions and proposals. The Committee has also received copies of research papers commissioned by the Department from Queen's on third-party appeals and unauthorised development. These are weighty, and the Department has provided a short summary of the key research findings to assist members. Mr Small will take the Committee through the policy papers and explain the Department's analysis and conclusions. After that, we will be happy to take questions that members may have.

102.

The Chairperson: Before our meeting this morning, Mr McKay, the importance of having a Bill with teeth was highlighted when a delegation from Holywood Conservation Group brought to the Committee's attention yesterday's demolition of Victorian buildings. The group is very angry that present legislation does not allow the Department to take effective action to stop inappropriate demolition and does not allow it to make representations. The demolition was carried out three weeks before the appeals commission could have a hearing. The message must go out that this Committee and the Department are treating that matter seriously and that all efforts will be made to ensure that developers do not go ahead with demolition or gain financially from them.

103.

I have a great deal of sympathy for a point that was made to us this morning: to prevent developers rushing ahead of legislation, the Department should demand that planning applications be sympathetic to what is already on a site, and it should not facilitate financial gain by developers. I am not making a particular judgement: we cannot do that in this case, because the buildings have been demolished. However, the Department had representations made to it on this and must bear that in mind when development commences on that site. This shows the urgency of the matter, and I hope that the Department will treat the Bill in the same way.

104.

Mr McKay: We appreciate those remarks.

105.

Mr Small: I am conscious of the limited time for the discussion, which has to deal with three heavy papers that the Minister presented to the Committee on 24 June. In his speech on the Second Stage of the Planning (Amendment) Bill, the Minister set out his thoughts and proposals on the issues of third-party appeals, levels of fines and unauthorised development. We shall discuss the papers that the Minister presented in the context of the commitments and proposals that he made. The papers are detailed; I shall go through them as quickly as I can, so that there is sufficient time for questions.

106.

The Chairperson: Even if we cannot ask detailed questions today, it is important to know the Department's position.

107.

Mr Small: The Minister's first paper, annex A, was on third-party appeals. It began with some background information on previous considerations of the merits of third-party appeals and referred to the considerations of the 1983 Assembly and the resolution that supported the introduction of third-party appeals. It also referred to the House of Commons Northern Ireland Affairs Committee's examination in 1996 and the report that recommended the introduction of third-party appeals. On both occasions, the Government of the day decided, because of increased delay, uncertainty in the planning process and resource implications, not to introduce third-party appeals.

108.

In 1999, the Department established a working group to re-examine the matter and decide whether there was a case for third-party appeals. That involved discussions with the appeal bodies in Northern Ireland and the South, the planning wing of the Department of the Environment and Local Government in Dublin and professional colleagues in the North. The group concluded strongly, because of delay and uncertainty, that third-party appeals should not be introduced.

109.

The Department then commissioned further research from Queen's University. It was asked to examine in more detail how third-party appeals operate in the Republic of Ireland; how successful the system is there; and what the downsides are. Its report contained several conclusions and was presented to the Committee some time ago. It said that third-party appeals are well accepted in the South and part of the system there. However, planning decisions take about 11 months longer because of them, and that is a disadvantage.

110.

Another comment in the report, which we think fundamental, is the suggestion to retune the system here rather than just add third-party appeals, the point being that our planning system is entirely different from that in the South. The South has a plan-led system: applications received are determined against the plan. If they accord with it, they are approved; if not, they are rejected. Any safeguards lost at the early stage through lack of consultation or participation are captured through the appeal system. The report concludes that the system in the South almost demands third-party appeals. It also says that because we have a more consultative and participative process at the early stage, we need to think carefully about attaching another process at the end.

111.

We have discussed that with the Committee and are conscious of members' views on how effective the early consultation stage is. We are looking at all these matters in the context of modernising planning. Research shows that we need to be careful about how we introduce third-party appeals. If we simply tag them on, we will damage the process. Rather than do that, we need to review the planning process and retune it to accommodate third-party appeals.

112.

We asked for further research from Queen's University this year and received a report earlier this month. It focused more on how third-party appeal systems operate in other European jurisdictions, and there was a wide range of findings. There are third-party appeal systems in some form in almost all European jurisdictions - however, the way in which they operate varies widely. In Denmark only environmental decisions are subject to third-party appeals and only environmental bodies have the right to a third-party appeal. On the other hand, the Republic's system permits almost anyone to make such an appeal. The report concluded that individual third-party appeals provisions are based around the policy objectives of such a facility. In Denmark, the clear objective is environmental protection, so the focus is on environmental decisions and watchdog bodies. The Southern system seems to be based on natural justice and equity. So, research suggests that we must be clear about why we want to introduce third-party appeals before thinking about how a scheme might operate, and there is a wide range of models and options.

113.

That is the background, and those are, very briefly, the kinds of considerations which have been made on the subject in past years. The Minister's paper detailed the benefits of third-party appeals and was informed by the Northern Ireland Affairs Committee's report, by Queen's University's research, by further work we did in the Department and by views given to it on the subject. It was thought that the proposal would be warmly welcomed by the Assembly, other elected representatives and the general public. Essentially, the benefit is that it provides objectors with an alternative means of challenging planning decisions, adds to what is currently available and remedies the perceived inequity in the system whereby applicants can appeal but those who oppose a development cannot. The research from Queen's also suggested possible wider benefits for the environment, since the third-party appeal process itself might take better account of some of the environmental downsides, resulting in more balanced development.

114.

Giving factual information, the paper also set out the potential disadvantage of third-party appeals: the possible three- or fourfold increase in appeals which such a process would encourage. The estimate suggests 600 to 700 additional appeals per year, which would have resource implications. The Department anticipates possible difficulties recruiting staff to run the system, since we are not at all convinced of the market supply of qualified planners.

115.

Queen's University's research suggested a delay in the system of 11 months for an average planning application going through the process of third-party appeal. There is also the fact that any planning approval would be subject to at least some delay, since a period is set aside for third parties to come forward. Developers and house-owners might get planning permission but be unable to proceed until the period during which third parties could bring forward an appeal had expired. That could vary, and some of the work we have examined suggests a period of six to eight weeks, so there could be a two-month period during which house-owners who had planning permission to carry out work on their propertis could do nothing. If the decision was appealed, that period could extend to 10 months. The French system allows three months, and research shows that a third-party appeal can take two or three years extra before a final decision is reached.

116.

Those are the kinds of problems that would cause delay and uncertainty in the system for house-owners, applicants, developers and those wishing to invest in Northern Ireland. The Minister's paper refers to other issues such as additional costs to third parties and applicants - the cost to applicants of having a land bank while they wait an extra year for a decision, the business costs entailed and the possible disincentive for developers or investors. It examines the possibility of third parties abusing the system to delay development. There is evidence in the South that serial appellants challenge everything from a particular developer, perhaps someone in Monaghan, appealing regularly against developments in Cork. Do we want that here?

117.

Finally, there are the implications for current efforts to improve the planning process. Through modernising planning, we are working hard to improve efficiency in decision making. That is one of the Programme for Government objectives, and we predict tensions if third-party appeals are introduced which will create delay. The paper examines the existing procedures to try to accommodate third-party appeals and our recent efforts to improve those processes through more open filing. Objectors can look at the file and see how their objection was dealt with. They can also object through neighbour notification, public advertisement and the other ways that you are aware of.

118.

The paper also looks at the position in England, Wales and Scotland, and those systems are completely opposed to third-party appeals. The recent Green Paper in England stated that the Government were not convinced of the arguments for third-party appeals and believed that the way to deal with the interests of third parties was to make the system more open. In the South the Government had concerns about serial appellants and delays. Over the past few months, they have sought to restrict their system and have concluded that the very open nature of their third-party appeal system was, and is, causing problems. There are allegations of builders being held to ransom by third parties who indicated, at a late stage in the process, that they were going to appeal, but that if money was paid to them, they would not. There is no hard evidence of that, but it is a real concern. It has prompted the Government in the South to introduce further restrictions.

119.

The paper refers to the latest research from Queen's and the various models that must be considered before putting a system of third-party appeals in place. It asks why third-party appeals are desirable; what is the objective; and what type of decision will be subject to them. Will they apply only to planning application decisions; or will they extend to demolition consents, tree preservation order consents, reserved matters applications or Article 31 major applications? Are they only for major applications or for circumstances that have a direct impact on an individual? Are they only for environmental applications, as in Denmark, or should they be universal? Should they be completely open, as in the South, or, given the concerns there, should they be restricted, and how do you do that? Do you restrict them to neighbours with an adjoining land -

120.

The Chairperson: This is a rehearsal of everything the Department has already said, yet the Department has not taken on board the fact that the Committee wants third-party appeals. The Assembly has said that it wants third-party appeals. When will the Department act on the will of the Assembly rather than object to it? When will it bring the operation plans for third-party appeals to the Committee?

121.

Mr Small: That is what we are trying to do. We are trying to air the issues that must be considered.

122.

The Chairperson: With respect, that has been done. We should be beyond this - far beyond this. The House of Commons suggested third-party appeals in 1996, and nothing has been done. Research began in 1999 - three years ago - and you are still telling us the problems. We should be being told how the Department is going to carry out the will of elected representatives in the Committee and the Assembly, and the purpose of the Assembly is to carry out the will of the people.

123.

This Committee feels that third-party appeals are essential. You talked about speeding up the planning process. In reality you are talking about speeding up planning decisions that many people feel are perverse but have no power to do anything about. With third-party appeals, people would be able to overturn such decisions. The evidence in the South and elsewhere shows that third-party appeals are generally well accepted and have a high rate of success.

124.

Mr Small: They have an exceptionally high rate of success.

125.

The Chairperson: If that is so, we are not talking about notional objections but about successful appeals. If there was no provision for third-party appeals, those decisions would have gone through.

126.

Mr Small: I accept your point.

127.

The Chairperson: Why would there be a high success rate if the original decisions were not wrong? You are saying that we should be speeding up the process of making wrong decisions.

128.

Mr Small: I know the Committee will not accept this, but the system in the North is different from that in the South. There is very little pre-decision consultation in the South.

129.

The Chairperson: What do you say to people who feel strongly that certain planning decisions are perverse yet they have no power to change them? All they get is consultation. What would happen if a council, with all shades of opinion, was united in its rejection of a planning decision that the Department approved? The community has no power in this: its representatives and the Assembly have no power in this, and that is not acceptable. You say that the system here is better than the one in the South, but that is not acceptable. I know that officials do not accept this and not just for the sake of blocking. However, they have to change, and the Department has to change, because it must implement the will of elected representatives speaking on behalf of the people.

130.

Mr Small: Your comments are well made, and the Minister recognises the concerns that were expressed during the debate on Monday. He is now fully committed to public consultation on this.

131.

The Chairperson: This subject has been running since 1996, and we are still in consultation.

132.

Mr Small: The situation in 1996 was that the then Government were not persuaded.

133.

The Chairperson: Let us forget 1996 then. Let us turn to 1999 and what has happened since then. We are supposed to be in a different dispensation, but we are hearing the same old words now that we heard then.

134.

Mr Small: No.

135.

The Chairperson: Now we are being told that we are going into a review of the situation.

136.

Mr Small: It is not a review.

137.

The Chairperson: What has been happening since 1999?

138.

Mr Small: It will be a full public consultation, and it will take views on the matters that I am discussing with the Committee. There are many ways in which we can proceed. The Minister's concern is to ensure that third-party appeals, if we introduce them, are introduced in a way that does not damage the planning process. We must take account of how the current system operates and how best to accommodate third-party appeals. The Minister made a commitment on Monday -

139.

The Chairperson: Neither the Minister nor the Department is convinced that third-party appeals are needed.

140.

Mr McKay: The Department has not made a decision on this. A long time may have been taken, but, as you have said, over 20,000 planning applications a year are processed, the vast majority of which go through without any difficulty. However, there is a strong view - and you are expressing it on behalf of the Committee - that there are people who feel that they do not have an adequate say. Those people are not applicants, but they are opposed to an application and its implications.

141.

It would be helpful to the Minister if the Committee could say who it considers should be third parties in such circumstances and the types of appeal that are envisaged. We understand what the Committee is saying about the principle of third-party appeals, but, as Mr Small has said, there are many variations across the different Administrations in Europe, so we would appreciate the Committee's views on who the third parties should be. I do not know if the Committee has thought about that.

142.

The Chairperson: No. Our remit is to scrutinise what the Department presents to us, not to formulate policy.

143.

Mr McKay: It is clearly the Minister's job to formulate policy, and -

144.

The Chairperson: The Minister must realise that this issue is not going away, and it is about time that we had some detailed proposals from him or his officials on how this is going to be put into effect. When information comes to the Committee we consult about it and consider it in detail, but it must be presented to us first. You say that you are going to consult, but what are you going to consult on?

145.

Mr McKay: The Minister would say that you are expressing the views of those who have spoken to you, but that does not mean that everyone in the community wants third-party appeals. We do not know the answer to that because there has been no consultation yet. That is the difficulty that the Minister faces.

146.

Mr Armstrong: Who does the Minister suggest these third parties should be then?

147.

Mr Small: The purpose of consultation is to get a clear understanding of where the demand for third-party appeals is coming from. Is the right of appeal for neighbours who have an adjoining boundary and are directly affected? Is it for wider concerned groups such as the Royal Society for the Protection of Birds and environmental groups? Consultation would help inform decisions on how wide a right of appeal should be and the types of decisions it should apply to. We would like to have the public's views on how the system should be shaped. That would enable us to develop the detailed proposals that the Chairperson is talking about and discuss them with the Committee.

148.

Mr Armstrong: Why not do that now? Why take such a long route? It is taking a long time to get a decision.

149.

Mr Small: We both acknowledge that it has taken a long time to reach the present point where the Minister and the Department have determined that more needs to be done. We realise that we need to make progress, and the Minister has given a commitment to go to public consultation. We have progressed beyond the 1996 position, when the view was simply that third-party appeals would be bad and we would not be having them. Matters have moved on, but it has taken time.

150.

The Chairperson: We can respond to that by quoting from the notes that we received this morning:

"At this time, the Minister is not persuaded of the merit of introducing third party rights to appeal".

151.

That is the reason; that is the heart of the matter. Where did he and the last Minister get that from? Where did we get it from at every meeting on this? We got it from officials - from the permanent secretary down. The Minister is getting this from his officials. The Department has not faced the reality that the elected representatives on this Committee want third-party appeals.

152.

As officials, you are responsible for deciding how to put into effect the wish of the people, expressed through their elected representatives. That should have been done a long time ago. The matter was raised previously, in 1996, and in 1999 reviews were carried out. Now in 2002, we are having consultation, and I do not know when it is to end. It would be helpful to be told that date. Other consultation arrangements end after three months. Perhaps we have made progress from the elastic situation of no consultation from 1999 to 2002.

153.

Mr McKay: There is no perfect model on which to base third-party appeals. We have our own planning system, and if there were a model to work to, that would assist. There are many variations. If the Committee has views on the best way forward that would help. We acknowledge that the procedure has taken a long time and that, by nature, planning is a difficult subject.

154.

Mr Armstrong: Are you suggesting that the Committee should say how to resolve this?

155.

Mr Small: If the Committee has a firm view that third-party appeals should be available to a particular group, such as a university, we will tell the Minister of that view. However, the Minister wants full consultation on this, so that all the issues can be debated and we can see where the demand for third-party appeals is coming from; what type of appeals are involved; and what decisions they should apply to. Until we have that information, it is difficult to devise a scheme and envisage how it will operate, and how we do that will determine the impact of delay on the system.

156.

The Chairperson: The Committee will fulfil its role when that consultation process concludes.

157.

Mr Ford: I have some sympathy for the officials - their Department is the smallest in the UK.

158.

The Chairperson: Are you getting soft, David?

159.

Mr Ford: It bothers me that the differences in legislation here have not been taken into account. The cited examples relate to other jurisdictions where, unlike here, councils are the planning authorities.

160.

My Colleague, Mr McCarthy, said in the House that "We must achieve a balance" and not

"allow a neighbour with a grudge. to delay the granting of planning permission". [Official Report, Vol 17, p82]

161.

You talk about someone living in Monaghan and writing in green ink to complain about developments in County Cork. My difficulty is that you are not considering that a way of dealing with legitimate concerns is by compromise. I do not wish to give everyone in Fermanagh the opportunity to complain about what happens in South Antrim. No one here wants that, but your examples are of that sort.

162.

We need to discuss the practical realities of giving councils powers to institute third-party appeals or have recognised organisations with a specific remit. We need to look at the legitimate concerns of many people who live near a development and oppose it, but essential economic development must not be held up by petty grudges. We must ensure that non-governmental organisations (NGOs) with genuine concerns about the environment or councils with concerns about the pattern of development in a district or even a serious group of neighbours can all appeal against the granting or refusal of an appeal will potentially affect them adversely. Where that might apply is what you must discuss with the Committee rather than say that the Minister is not persuaded - that is a dialogue of the deaf, and clearly you do not want it - nor do we.

163.

Mr McKay: We understand: if the amendment is to be introduced, it must be correct. You have your views on what the relevant elements should be. This comes back to the range that we are working within and our desire is to get it right first time around.

164.

Mr Ford: The figure of 600 to 700 appeals a year is from previous research by Queen's, which I do not have with me. Is that figure an extrapolation of the figures in the Republic? Is that the maximum number of appeals in the loosest possible third-party appeal system? If planning permission were given by a substantial majority vote of a council, there might be only 30 or 40 appeals a year.

165.

Mr McKay: It is hard to know how many there would be, but with qualifications, the figure can be reduced.

166.

Mr Ford: So the figure of 600 to700 represents the worst possible scenario. You are being very agreeable, but that is another example of a previous, unhelpful response from the Department that has been changed by discussion this morning.

167.

Mr Small: The figure was based on the research that was conducted. Many pointed out that third-party appeals were available in the South and asked why they could not be available in the North. The Department was simply considering the way in which the system operated in the South.

168.

Mr Ford: If we consider the different contexts, we are dealing with very different numbers.

169.

Mr Small: Exactly: there are different ways of doing this. We could adopt a universal system, such as in the South, or we could try to define and restrict the system in a variety of ways, which is important.

170.

Mr Ford: Would it be appropriate for you to prepare a paper outlining the potential range of acceptable appellants, and the implications of that, rather than considering the worst-case scenario?

171.

Mr McKay: Yes. We can speak to the Minister about qualifying the system in that way.

172.

Mr Ford: That would be very helpful.

173.

The Chairperson: I will take one last question, and then Mr Small wants to speak about two other matters. The Committee will have to consider and discuss them on another occasion.

174.

Mr M Murphy: Your argument against third-party appeals is that it would hold up the planning process. That is not a reason to allow bad planning practice. You mentioned Monaghan, but you did not mention some of the decisions that were overturned in the Republic, such as the proposed use of flood plains for two business parks. That was overturned because the location was not accessible by public transport and would have been contrary to the practice of sustainable development. The best known case, which should have been cited, was Mary McAleese's application to build a lakeside home in Roscommon. But for third-party appeals, that would have been approved.

175.

Mr Small: The success rate of third-party appeals in the South is very high.

176.

Mr M Murphy: That shows that there is a good reason for them. You should consider what happens with planning applications that are contrary to the provisions of adopted development plans; with applications in which local authorities have an interest, as they tend to get rushed through; and applications, accompanied by environmental impact statements, that planners have recommended should be refused permission. They should be subject to third-party appeals. Those are your starting points.

177.

The Chairperson: The Department knows how the Committee feels about third-party appeals. We will hear from you again on the matter. Witnesses from the Northern Ireland Office are waiting outside the room so can you explain quickly the two matters that you want to address, Mr Small?

178.

Mr Small: Annexe B deals with how to address a development that starts without planning permission. The Committee previously expressed concern about some developers pushing ahead with development before getting the appropriate permission. The paper sets out our enforcement powers under the Planning Order and addresses difficulties in the system: fines are too small, we cannot get necessary information; and we lack flexibility in the enforcement process.

179.

The paper then goes on to outline the provisions in the Planning (Amendment) Bill, which the Department feels will help. It refers to the new contravention notices and increased penalties that the Department will introduce. The current proposal in the Bill is that a penalty in the Magistrate's Court will increase to £20,000. For the first time here the new provision will allow us to take cases of non-compliance with an enforcement notice to the Crown Court. We could do that with listed buildings but not with general enforcement offences, so that is a major move forward.

180.

Unlimited fines will be available in the Crown Court, another important change. The Minister and the Department are committed to pursuing enforcement with much more vigour than in the past. The Department will take cases through the Crown Court with those new powers to take maximum advantage of the new unlimited fines that will be available.

181.

The paper then briefly mentions the Green Paper that was introduced in England. It is seeking comments on creating a new offence. The paper says that it is an offence in the South to begin development without permission, but the Department has had discussions with officials in Dublin that suggest that the power is there but difficult to use partly because the courts prefer to see the Department pursuing other means of enforcement before resorting to court action. Nevertheless, it uses the power and occasionally prosecutes directly, but the success rate seems disappointing.

182.

The paper mentions Queen's University's research findings from that project, which suggest that there is merit in introducing that new offence here. That is likely to make a positive contribution to the effectiveness of enforcement. It qualifies that with other matters such as the will to enforce, the resources necessary for it and the training of enforcement officers. However, the basic principal outcome of the research seems to support introducing the new offence. The paper briefly summarises experiences in Europe where that provision exists. It also talks about other issues that are relevant in France, Spain and Germany.

183.

The Minister has taken account of the Committee's concern on this and Queen's University research that supports creating the new offence. Having considered it further, the Minister is now minded to make the kind of amendment that the Committee proposes, subject to any further comments from the Committee and subject to agreement with the Executive and the Secretary of State. The Minister will prepare a detailed case to put to the Secretary of State. That is the Minister's position now, and that reflects his speech on Monday. He is keen to make that firm case to the Secretary of State subject to the Committee's comments.

184.

The Chairperson: In your submission you state that, subject to the views of the Committee, the Department intends to prepare a detailed case for submission to the Executive and the Secretary of State. The Committee would like to see a draft of that submission.

185.

Mr Small: The other paper deals with the levels of fines. The role of the Magistrate's Court and the fines and penalties imposed by it suggest that it would be inappropriate to have unlimited fines from the Magistrate's Court or higher fines than what is being proposed. The Department has reached that conclusion from discussions and consultations with the Court Service.

186.

The paper recognises the fine of £20,000 that was proposed in 1991 in Great Britain, and it acknowledges that inflation should be taken into account when considering what the fine should be now. The paper proposes that, subject to the Committee's comments, a case be put to the Secretary of State suggesting a higher fine to take account of inflation. The sum of £30,000 is suggested. The paper also draws the Committee's attention to the new ability to go to the Crown Court. The Minister and the Department intend to do that where unlimited fines will be available.

187.

Mr Ford: If the Minister is giving a commitment to using the Crown Court when appropriate, the court will deal with that. The Committee should recommend that the Minister suggest a fine of £30,000 rather than £20,000 to the Executive.

188.

The Chairperson: Does the Committee agree to £30,000?

Members indicated assent.

189.

Mr Small: We must secure the necessary agreements to that, and we will share the draft with the Committee.

190.

The Chairperson: Thank you for attending this morning's meeting.

MINUTES OF EVIDENCE

Thursday 4 July 2002

Members present:

Rev Dr William McCrea (Chairperson)

Ms Lewsley (Deputy Chairperson)

Mr Armstrong

Mr A Doherty

Mr Ford

Mr Molloy

Mrs Nelis

Mr Poots

Mr Watson

Witnesses:

Mr H McKay

Mrs M Hempton ) Department of the Environment

Mr J Lambe

191.

The Chairperson: Good morning.

192.

Mr McKay: Good morning. I am pleased to be here for the second week in succession after a long absence. My colleagues are Jackie Lambe, whom some of you will recognise from previous presentations, and Marlene Hempton, who joined the team on promotion. David Small is on annual leave.

193.

The Bill is the first major piece of planning legislation here since 1991. Its origins lie with the former Department of the Environment Northern Ireland and with what the then Ministers considered should be done in response to the Northern Ireland Affairs Committee's report on the planning system here. They made it clear that such matters should be put on hold until devolution. Today, we wish to deal with the provisions of the Bill and answer any queries that Members may have.

194.

Mr Lambe: The Bill has 32 clauses and two schedules that cover three main areas. Clauses 1 to 14 propose a substantial strengthening of the Department's enforcement powers. Clauses 1 to 3 propose the introduction of a new system for planning contravention notices; breach of condition notices; and the use of injunctions, whereby the Department can go to court to seek to prevent any actual or threatened breach of planning control. Those are new provisions.

195.

As part of the package, we propose to increase the level of fines for non-compliance with enforcement notices; for stop notices; and for hazardous substance contravention notices. Clause 7 proposes increasing the current maximum fine that can be imposed in a magistrate's court from £5,000 to £20,000. Last week, we proposed an amendment whereby the £20,000 fine could be increased to £30,000. For the first time in Northern Ireland, people will be able to be tried in a Crown Court for breaching an enforcement notice, a stop notice or a hazardous substance contravention notice. Fines will be unlimited, and the court can take into account the potential benefit that would accrue from the breach of control when setting the fine.

196.

In addition to the proposed level of fine for breaches of enforcement notices, there will be a new provision to introduce a custodial sentence for a person found guilty of contravening a listed buildings enforcement notice. Other changes provided by clauses 1 to 14 will allow for a more streamlined and flexible enforcement regime. For example, clause 11 provides specific new powers of entry directly related to investigating alleged breaches of planning control. We have general powers of entry now, so the new ones will be much more focused.

197.

As part of the more streamlined flexible enforcement regime, the Department can withdraw or vary enforcement notices to take account of changing circumstances; for example, when there has been a delay due to an appeal, or a delay with the Planning Appeals Commission (PAC), or a delay between an enforcement notice's first being served and the hearing by the PAC.

198.

Clauses 15 to 23 contain new controls over development. Clause 15 deals with new controls over the demolition of buildings. The Minister proposes to apply that control initially to buildings attached to areas of townscape character. We will be able to decline to determine repeat planning applications submitted by developers trying to wear down opposition to a development proposal.

199.

Clause 22 is an important provision that introduces the building preservation notice - more commonly referred to as a "spot-listing" notice. It will allow the Department to move quickly when buildings are at risk of demolition and give us breathing space to consider whether or not a building is worthy of being listed and carry out the necessary surveys.

200.

Clause 23, together with clause 14, introduces a new regime aimed at protecting trees. The Bill will introduce higher fines across the board, which will afford greater protection for trees. There will also be new measures, such as imposing a duty on owners to replace trees or be subject to a tree preservation order. There is also a provision to enable the Department to protect trees in a conservation area and a provision to deal with compensation payable when consent is refused. Present legislation about the development potential of land is unclear. There were several test cases in the Lands Tribunal, and we are taking the opportunity to clarify the law.

201.

Clauses 24 to 32 introduce a range of miscellaneous provisions. Clause 24 introduces a new measure to give primacy to development plans with regard to planning applications. New provisions in clause 25 will give the PAC power to dismiss appeals in certain circumstances and greater operational flexibility in how it determines appeals and reports to the Department. Clauses 26 and 27 extend the Department's grant-aiding powers with respect to the built environment.

202.

The two schedules make minor and consequential amendments to both the Planning (Northern Ireland) Order 1972 and the Planning (Northern Ireland) Order 1991, which are required by the main provisions of the Bill. To conclude, the Department believes that the Bill will significantly improve the legislative framework under which our planning system operates. Importantly, the Bill will enhance the Department's enforcement powers and will enable enforcement action to be taken much more quickly and effectively than at present.

203.

The Chairperson: Thank you. I appreciate your overview of the general provisions of the Bill.

204.

It was suggested in consultations that stop notices should take immediate effect in all cases and should be used in respect of unlawful developments. Can you clarify the current situation?

205.

Mr Lambe: A stop notice cannot come into effect within three days of its being served. The Bill proposes that where the Department feels it appropriate, perhaps because of the nature of the activity being carried out, be it a danger to life and limb, stop notices can have immediate effect. Stop notices have been served on unlawful developments or on developments without planning permission. We are examining whether, in the context of the proposal to make an amendment, to make such development unlawful.

206.

The Chairperson: Developers who want to do that do so at a weekend. Does an immediate stop notice apply then?

207.

Mr Lambe: There are difficulties if we are unaware of a need or are not in the office. If we know in advance, we can apply to a court to prevent any threatened breach of planning control.

208.

The Chairperson: It often starts at the weekend at about 3.00 am or 4.00 am. It is important that we tackle that. Those breaches are happening in most constituencies, and there are many serious problems.

209.

Mr Lambe: That scenario will be addressed through the amendments that the Department proposes to introduce to make it an offence to carry out development without planning permission. As part of those proposals, I expect that we will be able to take speedy enforcement action and that there will be sufficient cover to ensure that the submission of an application, for example, can rectify the matter, something that would not be considered while we were taking enforcement action.

210.

The Chairperson: I would like to be sure that the Bill has this right, because that causes a lot of constituents' complaints. They are concerned about developers gaining financial reward from those practices. We must meet this head on, and it is vital to do that now.

211.

Mr McKay: We fully understand that. Although it is easier for officials to be engaged between Monday and Friday, it does not mean that things cannot be done on Saturday and Sunday if necessary. If something happens in the middle of the night, action can be expected quickly the next day, but it is more difficult over weekends or during holiday periods than during the week.

212.

The Chairperson: Has the £20,000 to £30,000 level of fine been clarified, or is that still being considered?

213.

Mr Lambe: Subject to the formal approval of the Secretary of State, the Department and the Minister propose to introduce an amendment at the appropriate stage to increase the level of fine.

214.

Clause 4 allows us to issue enforcement notices where development goes ahead without planning permission, and the clause defines what constitutes a breach of planning control. The Bill will not make it an offence to begin development; that will be done by way of an amendment.

215.

Mr Poots: Should that not be considered in view of past practices where, for example, large developments have been built without planning permission? A long-drawn-out process has ensued between the planners and the developers with legal advisers involved, and retrospective planning permission has been granted that would probably not have been given if the developers had gone down the proper route at the start. Are we not leaving a loophole for people who still intend to do that?

216.

Mr Lambe: We are committed to introducing provisions at Consideration Stage that will make it an offence to commence development without planning permission. There is no such provision at the moment.

217.

Mr Poots: The Bill is strengthening planning laws significantly, so this exclusion is not necessary.

218.

The Chairperson: The Committee needs to see those amendments as soon as possible. We have talked about them but need to consider whether the wording is as forceful as we anticipate or hope it to be.

219.

Mrs Nelis: I am reading this on the hoof, so my questions may already have been covered.

220.

Can notice only be served on a developer or landowner under clause 5? Developers and landowners can absent themselves. For example, planners once tried unsuccessfully to serve notice on one developer 58 times. Does the legislation cover that aspect of enforcement?

221.

What about land surplus to development which a developer is not required by law to maintain?

222.

Thirdly, what happens if planning permission is granted and then a change of use application is received a year later for something that originally was opposed? The Bill may not cover that.

223.

Mr Lambe: First, an enforcement notice can be served on the owner and the occupier of land to which the notice relates. In addition, we can serve a notice on anyone who has an interest in that land, be he a developer or someone who is using the land, with the owner's agreement, to dump waste material, to ensure that the activity stops and the land is restored to its original condition.

224.

Mrs Nelis: Are you sure the legislation is strong enough to address the problem? Landowners and developers have a track record of escaping their responsibilities and the penalties.

225.

Mr Lambe: The Bill makes it clear that the current owner of the land has prime responsibility for ensuring compliance with the terms of an enforcement notice. In the past, difficulty arose when ownership changed while an enforcement notice was being served and there was ambiguity about whether the original owner was responsible for ensuring compliance or the new owner had inherited that liability. This legislation places the onus on the current owner to comply with the enforcement notice, even if he was not responsible for the unauthorised activity in the first place.

226.

I think that we published a draft planning policy statement on open space provision some time ago. Since then other policy statements, such as the one on telecommunications, have taken priority. We intend to publish the policy statement on open space later this year.

227.

Mr McKay: With pressure of work priority was given to other policy statements, and the one on open space was held back. It has been through the draft stage and will be dealt with as quickly as we can.

228.

The Chairperson: Can we clarify who is responsible for open spaces that developers leave - usually wee areas too small for a house? Developers walk away once they have made their money and do not care tuppence about the environment of the estates left behind. Pressure then goes on the councils to take over those bits of ground that no one wants.

229.

Mr McKay: Your point is valid, Mr Chairman. We are referring to the policy that should be put in place for such land, and nothing in the Bill relates to an amendment for that. In a development it is always better to ensure that any land leftover is included in an adjoining development, for example, used to enlarge a garden or put to public use. Pieces of land that are left can become a dumping area or an area for undesirable activities. However, that has to be dealt with under policy.

230.

The third point relates to a change of use, perhaps a year after planning permission has been given. Full planning permission is required for change of land use. Within permitted development some changes of use do not have to have planning permission. People may apply for change of use a year after the original permission is granted, and that is processed as another application.

231.

Mrs Nelis: Is it a weakness in the planning legislation?

232.

Mr McKay: It is there to enable another land use to be considered, but that does not necessarily mean that the application for the new land use will be granted.

233.

Ms Lewsley: This legislation is long overdue, and we are glad to see enforcement being addressed. I welcome the Bill but wait with bated breath to see if it is more efficiently implemented than the last enforcement legislation. What do you mean by

"The provisions will provide the Department with flexibility to require only partial remedy of a breach of planning control"?

234.

Mr McKay: It gives the Department flexibility to take into consideration the precise circumstances at the time the enforcement notice is due to have effect. The enforcement process involves an appeal process through the PAC. If the case goes to the courts, it can be drawn out over a long period of time. The proposal allows for partial enforcement, or under-enforcement, when circumstances have changed since the enforcement notice was originally served and some of the unauthorised activities originally specified in the notice have been rectified by the developer or when other factors in the vicinity come into play and render the activities of the developer less serious.

235.

If, for example, a lengthy appeal was taking place and a developer had not complied with a landscaping condition - perhaps he had put up a solid fence instead of a hedge - we could over time consider whether the surrounding properties were such that the fence was now permissible.

236.

Ms Lewsley: Do you place the enforcement notice on a whole site or only on part of it?

237.

Mr McKay: An enforcement notice has to apply to a piece of land. In other words, a limit is put on the portion of land that you are seeking enforcement action against.

238.

Ms Lewsley: Does that represent a change in the legislation?

239.

Mr McKay: There is no change. It would still apply to a specific portion of land, or a building or whatever.

240.

Ms Lewsley: I had to deal with a case in which two houses at the top end of a cul-de-sac had been raised by 13 feet. The enforcement notice only applied to the two corner houses, and the builder decided to build the rest of the houses up, assuming that the enforcement notice would accept that, as they had been built up, the two corner houses could not be knocked down. They were taken down by eight feet, but if an enforcement notice had been put on the whole cul-de-sac, the builder would have had to take houses down to the level for which he had applied for planning permission. It is important to ensure that enforcement does not have consequences for the whole site.

241.

Mr Lambe: An enforcement notice can only be served when there has been a breach of planning control, which is why the notice was served on the two houses that were not built in accordance with planning permission. I do not know the details of the case, but I take it that the remaining houses in the cul-de-sac were built in accordance with planning permission?

242.

Ms Lewsley: They were not. There were three phases of cul-de-sacs, all supposed to be built to the same level. There were no objections from the people living behind them, because they were glad to see the land being used, but when the builders got to the third phase, rather than take the water main down the back, they decided to bring it down the middle of the cul-de-sac. They raised the development 13 feet, and enforcement was made on the two semi-detached houses, one of which was built to roof level and the other to the founds. They built the cul-de-sac up the gradient.

243.

Mr McKay: I do not know the details, but I believe that a second enforcement notice would have been required.

244.

Ms Lewsley: It was hard to get the first one, never mind a second. It was one of the few enforcement notices in Northern Ireland that was seen through to the end. That is why I welcome this legislation.

245.

Mr Watson: I am not convinced that the penalties proposed are adequate, particularly given the demolition of listed buildings in conservation areas. A single property in Botanic Avenue incurred a fine of £250 and an entire terrace in the Armagh area one of £4,500. Given that the loss of historic buildings is not accorded separate recognition in the Bill, being covered by existing measures, have you considered the legislation introduced in the Republic in 1999? They really seemed to mean business with a fine of up to IR£10 million at the time and an optional or additional two-year jail sentence. Have you given serious consideration to the adequacy of the fines?

246.

Mr Lambe: Rather than impose a maximum fine as in the Republic, an existing provision could be used - though I believe it never has - to bring such a case to the Crown Court, where there is absolutely no limit on the forfeit which can be imposed on a convicted person. In assessing the appropriate level of fine, the Crown Court can take into account the likely benefit that has accrued or is likely to accrue to the person responsible for the offence. That is a matter entirely for the Court.

247.

The Chairperson: Yes, but you can do that at present. Is that correct?

248.

Mr Lambe: I am not aware that we have taken -

249.

The Chairperson: But that is the vital point of concern. When will the Department show its teeth? Part of the legislation is mothballed and has never seen the light of day.

250.

Mr Lambe: We are committed to giving enforcement greater priority. We are recruiting additional enforcement staff specifically to deal with the new provisions and powers in the Bill.

251.

The Chairperson: The two papers prepared on that cover the enhanced offence of unauthorised development and the increased fines. We should appreciate having them as soon as possible.

252.

Mr McKay: I know the two cases that Mr Watson mentioned. I was involved in them and was disappointed that higher fines were not imposed. That is clearly a matter for the magistrate. You are aware that we intend to raise the maximum fine. Much stronger will exists among Ministers and officials to act, and the thought that jail is a possibility may lead to a little more understanding. I fully accept that this remains to be proved, but the climate is much more inclined to punish wrongdoers.

253.

Mr Ford: I should like to make three points, two of which probably require no answer. It would be useful to know what "schedule of repeals and amendments" means.

254.

Secondly, I should like to repeat the points which Ms Lewsley and Mr Watson have made on enforcement. I am concerned that the explanatory and financial memorandum refers to "marginal financial implications" - something raised at Second Reading by my Colleague, Mr McCarthy, and the Minister. If you start taking serious action on enforcement, there will surely be rather more than "marginal financial implications". Recognition of that would have been helpful.

255.

My main point concerns trees. There are clearly times when a tree preservation order should apply to a mature tree - or two or three mature trees. However, there are also small woods and copses whose wildflowers are just as important to the landscape and environmental aspects of an area. Current thinking seems to be that, since a tree preservation order only applies to existing mature trees across the UK, you should not widen it. I ask you whether it should be widened to include the whole nature of a wood rather than two or three specimen trees in it.

256.

The law on unauthorised development should not be made solely on the basis of the Shane Park case, but there is the problem of unauthorised development, which often involves clearing a site of trees and then submitting a planning application. There is no way in which that will be dealt with unless specific provision is made to protect trees on a site before plans are submitted.

257.

The Chairperson: We have raised that on several occasions. There are infamous cases of sites being raped of trees before applications were submitted. If the applications had been received when the trees were still there, there is no way in which permission would have been given for their removal. It is very serious that someone can accrue the benefits of clearing an area of its trees when we have fewer trees than anywhere else in Europe. It is time that serious notice is taken of that.

258.

Mr McKay: We understand that, and we must keep in mind, when deciding to make a tree preservation order, that there are compensation implications with regard to scale. As you said, an order can deal with a single tree or a wood, which, while not in itself significant, has a significant impact on the area.

259.

Mr Poots: The last Minister did not seem keen on third-party appeals, though the current Minister seems to be more open minded on that, and it has been raised in discussions on this Bill. Has any more thought been given to including the right of third-party appeal in the Bill?

260.

Mr McKay: There was considerable debate on that last week. That was reported back to the Minister in detail, and he is considering the points that were made last week as well as those already raised.

261.

The Chairperson: A paper on third-party appeals was promised in due course.

262.

Mr McKay: Yes, in due course, but perhaps not as quickly as you would like.

263.

Mr Armstrong: Can you give us a broad picture of what you class as advertisements?

264.

Mr Lambe: Article 2 of the Planning (Northern Ireland) Order 1991 gives a comprehensive definition of what constitutes an advertisement. It is extensive, defining any individual word that purports to give directions as coming within the definition of an advertisement. We propose a minor extension to that statutory definition to include some of the newer forms of advertising, such as electronic rotating panels. However, there will be no major change to the current controls on advertising.

265.

Mr Armstrong: On advertisement hoardings, everyone advertises from his point of view. What will you do about that type of advertisement?

266.

Mr McKay: There is a difference between what constitutes an advertisement in planning terms and what is included in an advertisement. The Planning Order deals with the structure but not the content - we cannot get involved in that.

267.

Mr Armstrong: Many different structures have been put up throughout the countryside. They are mobile and can be put anywhere. Will you look into that?

268.

Mr McKay: That is a fair point. You cannot drive too far without seeing a great deal of advertising material. I have to believe that some of it does not have planning permission and is unauthorised.

269.

Mr Armstrong: Does it have to be taken down after a three-week period?

270.

Mr McKay: I think you are referring to election posters.

271.

Mr Armstrong: Does that not cover any sort of material?

272.

Mr Lambe: Do you mean the type of structures that are on mobile trailers and parked at the side of a road?

273.

Mr Armstrong: We are just teasing out what is there. You know as well as I do what is there.

274.

Mr Lambe: There are difficulties with enforcing advertising controls. For example, many advertisements, flags and emblems are placed on lamp standards, which are owned by the Department for Regional Development. They are immune from enforcement action by virtue of Crown immunity, so it is extremely difficult to take enforcement action against them. We rely primarily on Departments and agencies to keep their equipment and land free from such advertisements.

275.

Mr Armstrong: As you are in planning, should you not be giving direction?

276.

Mr Lambe: Periodically, we blitz an area. Together with the Roads Service, Northern Ireland Electricity and the Post Office, we move into an area and arrange for illegal signs to be removed and placed in the local Roads Service depot. People are then told that they can come along and collect them. It is done in a reactive way in small areas rather than as a general approach.

277.

Mr Armstrong: If we are going to protect historic buildings, we should be taking action across the whole country.

278.

Mrs Nelis: I wish to ask about change of use, for example, when old single-occupancy buildings are given planning permission to become multiple-occupancy buildings for which, the planners tell us, advance permission is not required. People only become aware that this is happening when a developer moves in and it is too late. I am sure everyone here could give examples of permission being given for a building to be converted to five flats and the developer's building ten. Will this legislation deter developers from taking such liberties with the planning legislation, and will the penalties ensure that such a situation, which is so prevalent, will not happen again?

279.

Mr Lambe: The legislation will deter those who effect a change of use that requires planning permission without that permission's having been granted. New levels of fine will be available to the courts. At a more fundamental level, under the current Planning (Use Classes) Order (Northern Ireland) 1989, planning permission is not required for the change of use of a dwelling house for use by up to six persons living together as a household and sharing facilities such as a kitchen.

280.

That rule, if I recall correctly, was used in the 1980s essentially to give a mechanism for the Government's proposal for care in the community - moving people out of residential institutions and into communal facilities and individual houses. It had its origins then, and to return to it would have a broad impact on a range of issues. However, it could be looked at during the next proposed changes to the Planning (Use Classes) Order (Northern Ireland) 1989. We plan to review a range of subordinate legislation following on from the primary legislation.

281.

Mrs Nelis: It is a major weakness that must be looked at. Legislation from the 1980s is outdated for now.

282.

Mr McKay: We know the problems that houses in multiple occupancy can create for people living in normal family homes. The developer who increased five apartments to ten should have made another planning application.

283.

Mrs Nelis: There are no enforcements.

284.

Mr McKay: You are right: more breaches have to be enforced.

285.

The Chairperson: Enforcement is at the heart of the matter. This legislation will rely on enforcement to be effective. If it is not to be enforced, there is no use in our sitting around this table trying to get the law right.

286.

A plethora of signs are going up in the countryside. One would think that we lived in the United States. As you enter towns, there are all sorts of advertising boards - and I am not talking about official signs. I know people who were refused a direction sign on a main road - a legal requirement to their business, because it was on a back road off the Glenshane Pass. Yet we see advertisements everywhere. Planners know that such signs are illegal, and they see them as they go to and from council meetings. Small signs are refused while these glaring breaches remain.

287.

You need to tell your officers who see blatant breaches to deal with such infringements because they take away from the beauty of the countryside. I am not talking about election periods, which are limited to three weeks; I am talking about something that is offensive for twelve months of the year. It is a clear breach of legislation, and it is destroying our environment. We do not need more legislation to deal with it, but we do need to have active personnel.

288.

We are waiting for you to do a lot of work on this. Many papers must come to the Committee, and we cannot move quickly without the information we require. Seventeen consultees responded to the Committee, and to assist you during recess, any documents we receive will be forwarded immediately to you. Please remember that we do this without prejudice, for we do not rubber-stamp everything before us. We are letting you know what we have, however, so that the next time we meet we will be able to deal with matters rather than wait. Thank you very much.

289.

Mr McKay: I appreciate that, and I am glad that you recognise the amount of work to be done.

MINUTES OF EVIDENCE

Thursday 5 September 2002

Members present:

Rev Dr William McCrea (Chairperson)

Ms Lewsley (Deputy Chairperson)

Mr Armstrong

Mrs Carson

Mr Ford

Mr McClarty

Mrs Nelis

Mr Poots

Witnesses:

Mr D Small ) Department of the Environment

Mr J Lambe )

290.

Mr Small: I apologise for the absence of Hugh McKay, the Chief Executive of the Planning Service, who was to lead the presentation today. He is unwell and, at short notice, we must proceed without him. If you are content, Mr Lambe and I shall lead the presentation.

291.

The Chairperson: Please send Mr McKay our good wishes.

292.

Mr Small: The presentation involves a clause-by-clause consideration of the Bill, dealing specifically with issues raised by consultees. Before it, however, I should like to update you on three issues, which were the subject of earlier discussion: third-party appeals, increasing the level of fines in the Bill and provisions to make it unlawful to begin development without planning permission.

293.

The Committee will be pleased that the Minister hopes to put a paper before the Executive on 19 September, seeking their agreement to introduce amendments on two issues: the proposal to increase the level of fines and the creation of a new offence to make it unlawful to start development without planning permission. The paper to the Executive will be copied to you. Following further consultation with the Committee, the Minister intends to seek the agreement of the Secretary of State to the two amendments, because they concern reserved matters.

294.

On the subject of third-party planning appeals, the Department has prepared a model for discussion with the Committee, as agreed at an earlier meeting. The model and a detailed discussion paper are with the Minister, and the intention is to present them to the Committee in the next week or so. The Minister is keen to have this meeting, and dates are being considered.

295.

Given that the Minister will appear before the Committee on those points, I do not propose to spend further time today addressing them, as they have been raised by individual consultees. If you are content, Mr Lambe and I will deal with other issues raised by consultees. Those issues cover considerable ground and detail. The amount of consultation makes that difficult to avoid. We shall pause after every two or three clauses, or sooner if wished, to take questions.

Clause 1 (Planning contravention notices)

296.

Mr Small: Clause 1 deals with planning contravention notices to seek information on alleged breaches of planning. Several comments were made on this. The Royal Society for the Protection of Birds (RSPB) has reservations about Article 67 (c), relating to planning contravention notices, which provides for a person to agree to a particular remedial action, or to bring forward a planning application, or to amend slightly what was being done to resolve a problem.

297.

It sees that as an opportunity that individuals may use as a delaying tactic rather than a proper effort to resolve a situation. We do not share that concern. The use of a contravention notice is only one action available to us. If a satisfactory outcome is not achieved, we will use our other powers in the legislation and, for instance, pursue an enforcement notice. The RSPB is concerned that the provision in article 67C might be used as a delaying tactic. It may be right about that, but we intend to try to resolve matters as far as possible before using the more serious powers. However, those powers are available, and we will use them when necessary.

298.

The Woodland Trust is concerned about article 67C and the problem of developers clearing trees from sites before applying for planning permission. That is a wider issue than the purpose of planning contravention notices: should removing trees require planning permission? We do not think it should. To introduce that sort of provision would have major operational implications for the planning process, the Planning Service and private house owners who might want to cut down a tree on their property. Blanket control over the removal of trees should not be introduced, and this was discussed at some of the Committee's previous meetings.

Clause 2 (Enforcement of conditions)

299.

Mr Small: Clause 2 deals with the enforcement of conditions and breaches of conditions attached to planning permission. A number of concerns were raised about that. The Planning Appeals Commission was concerned that there is no provision in the Bill for an appeal against a breach of condition notice, and it suggested that there might be human rights issues there. The Department "human rights-proofed" the Bill before introducing it to the Assembly, as is required, and it is satisfied that the Bill is human rights-compliant. When conditions are being attached to planning permission an applicant can appeal those conditions at that time or subsequently. There are provisions already in the legislation that allow an individual to apply to the Department to have any condition removed, so we are satisfied that the Bill is human rights compliant.

300.

The Planning Appeals Commission also raised concerns about article 76A, and suggested that the wording be reviewed. It said that the wording should be more flexible to give the Department more discretion. We are content with the current wording, which is designed to deal with specific and clear breaches of planning conditions. Where the Department feels that a different approach should be adopted, it will use enforcement powers that are available in the legislation.

301.

The RSPB also raised a concern about clause 2. It said that the Department must closely monitor compliance with conditions when they are attached to planning permission because that would allow a more rapid response. We accept that we should be more proactive on enforcement, and we have made commitments to be so at previous Committee meetings. There are limits on how effective we can be in that, but we do accept the point.

302.

Another concern raised by the RSPB relates to article 76A and a breach of conditions. The RSPB asked if the suggested fine was a sufficient enough deterrent. We are satisfied that the proposed fine of £1,000 is adequate and consistent and proportionate with other fines in the Bill. The breach of condition notice process is designed to deal with clear, specific and, usually, minor breaches of planning control. Where we feel that something is more serious, we will use the other powers available by way of an enforcement notice when higher fines will be available.

Clause 3 (Injunctions)

303.

Mr Small: Clause 3 deals with injunctions, and no specific comments were made about the new powers.

304.

The Chairperson: Does any member want to raise anything about Clause 1 and Clause 2?

305.

Mrs Nelis: I understand the difficulties of protecting trees given prior planning permission, but how do you propose to do it? We all have experience of developers clearing sites and cutting down trees, resulting in disruption to and protests from people. How can we protect the environment?

306.

Mr Small: We have concerns about blanket protection to prevent the removal of any tree without prior approval from the Department. That would have serious operational difficulties, as well as implications for house owners who simply wanted to trim or cut trees in their gardens. Our intention is to be more proactive in the use of tree preservation orders and in how we use the powers given to us by them. We are conscious of the recent occasions on which developers have gone into sites, cleared them and created development sites. The Minister is aware of the problem and is concerned about it. We propose to move more quickly with tree preservation orders and to work more proactively to identify where they might offer better protection.

307.

The Chairperson: Many trees have been destroyed, and there is much dissatisfaction about developers clearing away good mature trees for financial gain and nothing else. No consideration is shown for the environment. Unfortunately, trees are destroyed and taken away before the Department arrives. That happens often, and usually at around 4 o'clock in the morning. That is the "sneaky beaky" way in which these boys do it, and it must be stopped. People must have planning permission before they begin a development, and not only for building. Cognisance must be taken of the environment and the need to preserve it. Every one of us deals with constituency issues that prove that members of the public are very dissatisfied. They feel that the Department is weak in this, and it will take some real action by the Department to convince them that enforcement means anything.

308.

Effective measures must be taken to satisfy the community. We have few enough trees; Northern Ireland is one of the weakest areas in Europe for tree planting. We should demand more of that rather than allow the destruction of beautiful trees that add to the environment and the enjoyment of it by people. We must act firmly to stop what has been happening recently, and the Committee would like the Department to re-examine clause 1, which needs more teeth.

309.

With regard to clause 2, many feel that £1,000 is not a sufficient fine. Many representations have been made on the matter, but the Department seems to be happy with the amount.

310.

Mr Small: The Department's view is that the breach of condition notice will be used in specific circumstances for very clear-cut, minor breaches of planning control. In more serious cases and where we feel that a different approach is needed, action will be taken through the enforcement notice process. In a Magistrates' Court people can be fined £30,000, and in the High Court fines are unlimited. As we intend to use the breach of condition notice in a targeted way, we are satisfied that £1,000 is sufficient. We will use a different process if a tougher approach is needed.

311.

Mr Ford: This should be a simple procedure for dealing with issues that are not being dealt with by the existing procedure. Introducing a fine as low as £1,000 might affect someone's decision to add a porch to a house but not the decision to add anything bigger than that. This does not represent real remedial action, and you will have to carry out full enforcement action. This does not add anything to your powers, and I cannot understand why you are not prepared to act above level 3 on the standard scale and introduce a meaningful fine. Without that, you have the choice of a completely nugatory process or full enforcement action, which you already have enough difficulty finding the staff, time and resources to deal with.

312.

Mr Small: As I said, the intention is to target the use of this new power, which is designed for use in the case of clear-cut and usually minor breaches of planning conditions. Rather than use the full enforcement process, the Department has chosen to introduce this more straightforward measure.

313.

Mr Ford: Do you not accept that a development would have to be minor for £1,000 to be a significant sum?

314.

Mr Small: Yes, and the fine is likely to be used in cases of minor breaches.

315.

Mr Ford: How minor would the development have to be for that fine to seem significant?

316.

Mr Small: We have in mind cases where landscaping has not been done in accordance with planning conditions. The provision would be used to ensure that the landscaping was corrected, and where it was not, we would impose the fine. However, we do not anticipate this measure being used in cases where, for example, a three-storey building was built when there was permission for only a two-storey building. In such situations, we would use much stronger powers.

317.

Mr Ford: The Department will not impose the fine, but it will take a prosecution and hope that the magistrate will impose a fine of £1,000 at most. In such a situation, the developer would say that he forgot to plant the additional trees and would agree to complete the landscaping. The magistrate would then fine him £50. It is pointless to have a maximum fine of £1,000.

318.

The Chairperson: Given that the maximum fine in a Magistrates' Court is £30,000, why does this measure not have a maximum level of £5,000? What is wrong with that? Why are we so afraid to give the court that power? Nothing convinces me that there will a rash of cases going to the High Court. The majority of cases will go to the Magistrates' Court, despite the fact that many of them will not be minor. There seems to be consensus that there should be a maximum fine of £5,000 for minor cases. I can assure you that £1,000 means very little today, and to many it would be nothing.

319.

Mr Small: We will take those comments back to the Minister.

320.

The Chairperson: Tell the Minister that the Committee is resolute about the matter.

321.

Mr Small: We will probably have to reconsider the whole range of fines in the Bill, which we do not mind doing, to ensure that there remains some consistency in the fines and penalties.

322.

The Chairperson: It is difficult to persuade courts to impose the maximum fine. The tragedy is that if the maximum fine is £1,000, the fine imposed is likely to be £50. People will laugh because that means nothing.

323.

Mr Small: We must seek to get better results from the courts, which will be a long process.

324.

Mrs Carson: You have said that

"if the breach is serious an enforcement notice is the correct mechanism to use. £1,000 is considered consistent and proportionate with other levels of fines."

325.

If the fine is £1,000, it does not give much hope for fines for further breaches.

326.

Mr Small: If a breach is serious, an enforcement notice with higher levels of fines will be used. In those circumstances, the maximum fine will be £30,000 in a Magistrate's Court and unlimited in the Crown Court. The fine of £1,000 for the breach of condition notice, if we pursue that process, is considered consistent with other levels of fines and penalties in the Bill. However, we have taken on board the points made by the Committee and will re-examine those issues.

Clause 4 (Time limits on enforcement action)

327.

Mr Small: Clause 4 deals with new time limits on enforcement action and sets down when it can be taken. It introduces changes to the current arrangements whereby a breach of planning control can be immune from enforcement action if it falls within certain dates.

328.

Coleraine Borough Council said that subsection 3 should be amended to exclude immunity for significant breaches in planning control. The council broadly accepts the changes in time limits but feels that that circumstance should be excluded when a significant breach is involved. It is extremely unlikely that we will be able to take successful enforcement action against breaches that occurred more than 10 years ago. It would be difficult to acquire the necessary evidence. Rather than waste valuable resources on enforcement action that is unlikely to be successful, we prefer to target our resources on areas in which we might get a positive result. The changes are being made for that very reason. We believe that the shift in time limits is still appropriate.

329.

The Construction Employers Federation (CEF) and Lisburn Borough Council raised a second point about the words "substantially completed" in article 67. It was suggested that the wording is unclear. In fact, that wording was deliberately chosen to give effect to previous case law and court rulings in which courts expressed doubt about anything more firm than "substantially completed". The initial proposal was that "completed" should be included, but previous case law and court rulings suggested that we should instead use the more vague "substantially completed".

330.

Finally, the Woodland Trust raised issues concerning article 67A and suggested that planning permission should be required for the removal of trees. We have discussed that point and agreed to re-examine it and report back to the Minister.

Clause 5 (Enforcement notices)

331.

Mr Small : Clause 5 deals with enforcement notices and the process for enforcement. Lisburn Borough Council suggested that the provisions should be amended to ensure that district councils are consulted at appropriate stages throughout the process. We are concerned that doing so would considerably delay the enforcement notice process, when, in fact, the purpose of the enforcement provisions is to try to speed up the process. There is already concern that enforcement action takes far too long - given the various appeals, it can take a year or more. We would be concerned about any provisions to consult district councils that would further extend that period. There is no indication from the other consultation responses of any support for the suggestion from Lisburn, and at this stage we have no plans to amend the provisions.

332.

The RSPB had reservations about the term "under enforcement" and suggested that the criteria should be made clearer. The difficulty lies in the words in the provisions where "under enforcement" is mentioned, and a better choice of words would be "targeted enforcement". The provision is intended to give us more discretion, so rather than having to enforce against every single breach where we might be content to grant permission, we can be very selective in where we take enforcement action. It is not "under enforcement", but "targeted enforcement".

333.

Finally, the CEF and Lisburn Borough Council referred to article 68 and suggested amending the wording to clarify what a "replacement building" means: where the Department has powers to require a replacement building. Article 68A(7) already prescribes what constitutes a replacement building and sets out the circumstances of what is required. We are not aware of how that provision can be made more precise. If a dispute were to develop over what was required, the Planning Appeals Commission or the courts would have to resolve it.

334.

Mr Poots: You said that the RSPB only takes up the case of certain breaches and not others and that the breaches might be permissible. How can the breaches be permissible after they have been carried out, if that was not your opinion when approval was granted?

335.

Mr Lambe: Quite often the type of enforcement action we take is not as a result of a failure to comply with planning permission but to deal with unauthorised development, be that in the form of a structure for which somebody has not applied for planning permission or a small extension that a person thought was permitted development that subsequently slightly exceeded those boundaries. When we serve an enforcement notice on a site, we must specify every breach of planning control on that site, even those that, if permission had been applied for, we would have allowed. This targeted enforcement is a means of allowing us, when taking enforcement action, to home in on specific breaches that we think incapable of being approved by a subsequent planning application and so concentrating our resources on the more serious breaches of control on a particular site.

336.

Mr Small: Occasionally we simply miss what might be regarded as a breach of planning control when we are concentrating on specific points brought to our attention, and after the appeal process has begun, and the appellant refers to this other breach that we failed to recognise, the whole process is lost. We want to avoid that, and that is the primary purpose of creating the greater discretion. When an individual raises concern about a particular piece of development, we will take enforcement action against that. If we happen to miss some other minor discretion or breach, the whole process of purposeful enforcement is lost.

337.

The Chairperson: We must be careful because, although an officer might dismiss a breach of the rules as a minor matter, a person, who knew that he would not have got away with his plan when he first applied, might have done it deliberately. As far as you are concerned, he complied with the paperwork and did what he wanted afterwards. In your book that would be regarded as a minor breach, but it could have untold implications for the person's neighbours or others to have to live with it.

338.

Mr Small: The Department does not intend to ignore planning breaches. However, It wants to ensure that the whole process does not fall apart because it concentrates its efforts on one or two cases and innocently misses a minor breach. The Department intends to act on every identified breach.

339.

The Chairperson: How strongly did Lisburn Borough Council raise certain matters, such as replacement buildings?

340.

Mr Small: Lisburn council asked for clarification of what is meant by a replacement building. Article 68A(7) sets out what that means. It is not clear how we can make that more precise.

341.

Mr Poots: Does the rule apply only to dwellings, or does it apply to commercial and sporting premises as well? The policy is that if a dwelling is abandoned, for example if it is on a farm and used for storage of fodder or for housing cattle, it is no longer classed as a dwelling. Does the same apply to commercial activity, if, for example, an industrial shed is no longer in use? Can it be reclaimed for industrial use, despite the fact that it has been used for other purposes for several years?

342.

Mr Lambe: That is a detail of the way in which planning policy operates, rather than a provision of the Bill. The Department can look at the issue and try to respond to it. However, I am not sure how it relates to the provision in the Bill.

343.

Lisburn council said that the term "replacement building" must be clarified. It did not suggest how that could be done, and the Department is not sure how to do it.

344.

The Chairperson: What do members think about the suggestions for ensuring that district councils are consulted at appropriate stages when enforcement action is being taken?

345.

Mr Small: It is not current practice to consult the relevant district council at each stage of the process, and there is no provision for doing so.

346.

The Chairperson: I thought that consulting district councils failed to bring about enforcement action, because so little action has been taken.

347.

Mr Small: It would add further delay to the enforcement process, which is already slow.

348.

The Chairperson: Coleraine was mentioned in relation to breaches in planning control in the past 10 years.

349.

Mr McClarty: The council mentioned that because it felt strongly about it. However, I take Mr Small's point about concentrating the resources on recent cases rather than going back such a long time.

Clause 6 (Appeal against enforcement notice)

350.

Mr Small: Coleraine Borough Council raised an issue about strengthening the provisions of the clause. It suggested that there should be some form of penalty for retrospective applications. The Department is considering that in the context of the ongoing review of planning fees. This is not new and has been raised in the past. It is closely linked to the new provisions that we are proposing that will make it unlawful to start development without planning permission. The introduction of a penalty retrospective fee would be another way of dealing with that. We are looking at that in the context of our review of fees, which may well result in a change to the fees Regulations. It would mean subordinate rather than primary legislation.

351.

The Northern Ireland Environment Link asked how quickly stop notices can take effect and suggested that they should take effect immediately. The provisions already allow a stop notice to take effect immediately, but the form of wording allows us some discretion on when it should take effect. That is to ensure that any other requirements, such as health and safety legislation, can be accommodated. It might be that a stop notice will take effect within half a day or one day to allow certain other statutory requirements to be met. When a serious incident takes place and we think that it should stop, the provisions allow a stop notice to take immediate effect.

Clause 7 (Offence where enforcement notice not complied with)

352.

Mr Small: As well as a range of comments about higher levels of fines on an enforcement notice, which we are dealing with separately, Down District Council referred to the need to clarify the references to a continuing offence. It was concerned about the wording, which is complicated, but its effect is simply to allow daily fines to be imposed where a continuing offence is taking place, or for fines to be imposed weekly or monthly. It broadens the discretion available to impose a fine. We are not sure how that could be made clearer. It is a form of legislative wording that defines the scope for dealing with continuous offences and the range of penalties available.

Clause 8 (Execution of works required by enforcement notice)

353.

Mr Small: Down District Council referred to the need for an increase in the level of fines for wilful obstruction of unauthorised work in compliance with an enforcement notice. Our position is that the level of fine is consistent with others in planning legislation concerned with wilful obstruction. The fine imposed under clause 8 is limited to the execution of works by the Department, or by others on its behalf, to ensure that work required by an enforcement notice is carried out. We have other wider powers under our enforcement notice procedures, which would only be used in specific circumstances. Given that we have undertaken to look at the other levels of fines in the Bill, however, we shall do the same in this instance.

Clause 9 (Stop notices)

354.

Mr Small: The Hearth Revolving Fund and the Association of Preservation Trusts made the point that stop notices should have immediate effect, which we have already dealt with. The Historic Buildings Council makes the point that, in relation to the new article 73(7C) that is proposed in clause 9, there should be powers to order the reinstatement of buildings. In that respect, the Department already has power under article 77 to require the reconstruction of a listed building.

355.

The Chairperson: You have already said that you are looking at the Coleraine Borough Council's suggestion regarding penalty fees for those who go ahead with unauthorised development. The issue of stop notices has come up in relation to both clause 6 and clause 9. There is no doubt that a stop notice should mean "Stop". Surely it should be made clear in the legislation that the only work that can be done is that which is necessary for health and safety purposes. "Stop" should mean "stop", but at the moment it does not. It means "Carry on". People are driving a coach and horses through this. A stop notice means absolutely nothing to them. They carry on.

356.

I appreciate your saying that you need legislation to ensure that other legislation is not breached in relation to, for example, health and safety. It should be specific. An immediate stop notice should mean "Immediate stop", and the reasons for it should be a very clear. They are laughing at this whole situation, and the community is angry. When people are told that a stop notice has been put on, they expect that to mean "Stop". An elected representative can tell them that a stop notice has been put on a development, but the next day the work carries on. When are you going to ensure that we have stop notices that are really effective, with the one proviso for what is clearly identified as health and safety work? And then there must be immediate fines.

357.

Mr Small: The provision will allow us to impose a stop notice that will take effect immediately where we feel that it is necessary. Part of the problem is that the penalties available to the Department are low. Even when a stop notice is put in place and takes immediate effect, it may simply be ignored. Other provisions in the Bill relating to fines will increase the penalties available for stop notice action to £30,000 in a Magistrate's Court or to an unlimited amount in the Crown Court.

358.

We are already taking specific powers to increase the action that the Department can take in the event of a stop notice's not being complied with. We are satisfied that the provisions as worded will allow us to impose a stop notice that takes immediate effect.

359.

The Chairperson: I would not be very satisfied at all.

360.

Mr Small: Once a stop notice is in effect and is breached or not complied with, the developer has committed an offence. It is then that the Department must respond quickly in terms of prosecution.

361.

The Chairperson: The proposed new article 73(3B) says that

"a stop notice shall not take effect until such date as it may specify (and it cannot be contravened until that date), being a date not earlier than 3 days after the date when the notice is served, unless the Department considers that there are special reasons for specifying an earlier date and a statement of those reasons is served with the stop notice".

362.

Surely that is backside forward? A stop notice should be immediate, and the three days should be for a special reason such as health and safety. That is the very opposite of what it says here.

363.

Mr Lambe: The three-day period is a feature of current law.

364.

The Chairperson: We are talking about seeking to get the law amended to satisfy the needs of the community.

365.

Mr Small: Current law states that a stop notice cannot take effect until after three days. This provision will allow us to make it take effect within one day, or half a day, or immediately if we choose.

366.

Mr Ford: Could we not go the whole hog and say that it should apply immediately unless there are good reasons for its being delayed for a period of between three and 28 days?

367.

The Chairperson: We have to be specific. What does health and safety mean? If three days are given, not to carry on building, but for health and safety purposes identified by the Department, what actions should be taken on those days? We must address this because it is wrong.

368.

Mr Small: Health and safety was quoted to illustrate the point. There may be other reasons for it not being possible to stop immediately.

369.

The Chairperson: You must let the Committee know.

370.

Mr Small: My concern is that we cannot provide an exhaustive list in the legislation because we cannot foresee every circumstance.

371.

The Chairperson: We cannot foresee every circumstance but we can foresee that a stop notice will not mean stop - it will mean carry on. It would be more appropriate for the Department to put up a big "Carry on" notice because people are absolutely sickened by recent events. There is not one isolated case; it happens repeatedly. Developers are snubbing their noses at ordinary, law-abiding people, and there seems to be nothing that elected representatives can do. We are told that it will come down to the legislation. We must stop the gap while we can, because, as the Minister knows, once legislation is in place it is difficult to amend.

372.

Ms Lewsley: What impact will a stop notice have if it applies to only part of a site?

373.

Mr Small: A stop notice will target a particular type of activity, which could be unauthorised. It will, therefore, be specific. If a development or an operation is taking place that the Department feels should be stopped, the stop notice will clearly give its reasons.

374.

Ms Lewsley: I know of a case in which a stop notice applied to two houses only. The developer continued to work on the houses on either side because he assumed that the houses that were causing the problem would not be taken down. In the end, there was a compromise; the houses were lowered by 8ft when they had been raised by 13ft in the first place.

375.

Mr Small: That how the process operates. If the unauthorised development related to two houses, the immediate desire would have been to stop that. If the developer stopped his activities, that stop notice was successful. If, however, he moved on and repeated the offence elsewhere, further stop notices would be issued. A stop notice cannot be issued to stop something that has not started. In such circumstances, the Department uses the other enforcement powers available to it.

376.

Mrs Nelis: On whom is a stop notice served? It is unclear in the legislation. I know of enforcement officers who tried to serve a stop notice but have found that the developer or the owner of the site was absent. If the developer or owner is not present, and a building contractor is on operating the site, is the stop notice served on every person working there?

377.

Mr Lambe: Stop notice powers can only be exercised in conjunction with an enforcement notice, so a stop notice can be served on the same people on whom we serve an enforcement notice. Those people include the owner, the occupier or anyone with an interest in the development.

378.

Mrs Nelis: Does that include the site workers?

379.

Mr Lambe: No. Mrs Nelis is talking about circumstances in which it is difficult to serve statutory notices. Courts have legislation to deal with that type of situation. For example, there is a procedure whereby a stop notice can be left at the feet of a person on a site, which, in certain circumstances, satisfies the law. Such situations are dealt with in criminal law rather than civic or planning law.

380.

Mr Ford: I will respond briefly to the reference to the three days. We have been told that it would be difficult to specify the precise reason for the delay, but the Bill, as it stands, does not specify the reasons for an earlier date. You have given no logical reason for its not applying immediately, unless you determined that there were special reasons for its being delayed.

381.

In the proposed new article 73(7C)(b), why, if we are talking about conviction on indictment, are we discussing fines alone, if we are considering something that might be of sufficient importance to merit imprisonment? There must be other areas where the possible penalty is imprisonment for a major breach.

382.

Mr Small: Currently, the only penalty that can be imposed for non-compliance with an enforcement notice or many of the other breaches is a fine. The only exception to that, which is incorporated in the Bill, relates to the demolition of listed buildings, where a custodial sentence is a possibility.

383.

The Chairperson: Yes. That is in the proposed legislation. Let us forget about the current legislation: it has been totally abused and has proved ineffective. It is no use for the future. Let us talk about the legislation that will stop abuse. Mr Ford said that just because it was not in the previous legislation does not mean that it cannot be incorporated into it now. What is to stop the courts, if it were so permitted in the Bill, considering a custodial sentence?

384.

Mr Small: That is a valid point. We will consider it and respond to it later.

385.

Mrs Nelis: I am unhappy with the response about whom a stop notice is served on, which was unclear. A developer in Derry, where I live, received planning permission to build eight flats but built 14. The planners tried to serve a stop notice and an enforcement notice, but they could not. How does the proposed legislation address that weakness in the current planning legislation?

386.

The Chairperson: Will you think about that, and we will start with that question at the next meeting?

387.

Mr Small: Yes.

388.

The Chairperson: Instead of putting them on the long finger, we will start with the points that have been raised today at our meeting next week and carry on where we left off. It would also be helpful because members can read the responses in conjunction with other documents in the folder in preparation.

389.

Thank you for your presentation, and please send our good wishes to Mr McKay.

MINUTES OF EVIDENCE

Thursday 12 September 2002

Members present:

Rev Dr William McCrea (Chairperson)

Ms Lewsley (Deputy Chairperson)

Mr Armstrong

Mrs Carson

Mr Ford

Mr Molloy

Mrs Nelis

Mr Poots

Witnesses:

Mr Nesbitt ) Minister of the Environment

Ms M Hempton )

Mr J Lambe ) Departmental Officials

Mr I Maye )

390.

The Chairperson: I welcome the Minister, who is here to discuss two important issues, and I thank members for agreeing to bring forward the meeting.

391.

Mr Nesbitt: We have had many a disagreement, but I appreciate your bringing the meeting forward, because I have to catch a plane.

392.

The Committee raised the issue of the criminalisation of planning, and I empathise strongly with that. The Department of the Environment commissioned research from Queen's University, Belfast, and it supports criminalisation. The Department is drawing up a letter to send to the Executive seeking their endorsement, in principle, for the introduction of criminalisation of planning, which would mean that there could be no development without planning permission. I intend to propose an amendment, but I will consult the Committee on that. I publicly endorse that this is in response to the Committee. I am conscious of development without planning permission, which is unacceptable.

393.

The Chairperson: What is the opinion of your Executive Colleagues on the matter?

394.

Mr Nesbitt: Prior approval is almost like applying for planning permission. The request is sent to Executive Committee members, and if they have no objections, it is put formally to the Executive. The five Ministers who responded within the timescale support it. We are taking the silence of the other Ministers as acceptance; however, I cannot be sure. Nevertheless, I am going forward with a measure of support. I have also had initial discussions with the Secretary of State, and he understands why the Department wants to propose the amendment because the research shows that it has not been operating in England and Wales. However, research from Queen's University, Belfast shows that it has been operating as a deterrent in the South of Ireland, and it is causing a smaller financial increase. It works throughout Europe also.

395.

There is a strong precedent of having prior approval, and there is indicative support from the Secretary of State. There has also been no dissension in the Executive. It will go to the Executive next Thursday for approval. If they endorse it, we will draw up the amendment. Then the Committee will assist me in examining the amendment.

396.

The Chairperson: Will the wording of the amendment be open for discussion and scrutiny by the Committee?

397.

Mr Nesbitt: Yes.

398.

We have had much discussion about third party rights of appeal. At the last Committee meeting we discussed the increase of the unlimited fine to £30,000 if the matter is dealt with in a higher court. I have sympathy with the criminal aspect, and we have conducted some work on that. Consultation on the review of the planning process was divided. Some people said that we need third party appeals, but others were unsure. However, there was unanimity from both sides of the House that it was tricky and required further consultation and thought. We want to go down that line, but that does not mean that we are putting it on the back burner. We need a commitment to the consultation, and we need to embark on that before Christmas.

399.

If, or when, we embark on consultation, I want the Committee to see how we are consulting and to give us its views on the consultation. However, across the board it is viewed as a difficult issue. Mr Maye can outline the model that we have suggested. Further thought is required; the consultation will prepare the ground for serious consideration.

400.

The Chairperson: You said that the matter would not be put on the back burner: is that a direct commitment to consultation?

401.

Mr Nesbitt: I give my commitment now - readily.

402.

The Chairperson: Is there, therefore, a timescale as to when the consultation will commence and finish?

403.

Mr Nesbitt: I anticipate that it will be completed by Christmas.

404.

Mr Maye: It will commence before Christmas, and we will publish a consultation paper, having agreed the detail with the Committee. Then it will take the normal three to four months for consultation.

405.

Mr Nesbitt: I read my very brief brief. I should have made it clear that the process would be completed and a paper issued before Christmas. The Committee will be involved in discussion on the consultation document.

406.

The Chairperson: It has been suggested that a detailed regulatory impact assessment is needed. What does that process involve, and how long would it take?

407.

Mr Maye: That assessment would be done within the same timescale; it would be published with the consultation paper. We have already tasked consultants to help us to carry out an analysis and to draw out the potential implications for the public sector and society.

408.

The Chairperson: Are the resources available for drafting the consultation paper?

409.

Mr Nesbitt: I will ensure that that is the case. It could be seen as going up an alley; it is not. It is showing that there are concerns on all sides, and more time is needed.

410.

Mr Poots: In the light of human rights legislation, how safe is it to decide not to introduce third-party appeals?

411.

Mr Nesbitt: We have been assured that that would not be in breach of human rights legislation, and that proposition was tested in the Alconbury case. In deciding whether it should be introduced, we must be mindful of the review of public administration and other aspects.

412.

Mr Poots: Is that the Edinburgh case?

413.

Mr Maye: The Foster case, which is before the Northern Ireland courts, bears on the issue. A hearing was held about six months ago, and we have not yet received a judgement. The judge who heard the case will not be reporting publicly for at least another six months. He wants to hear further oral evidence on more recent cases in England and Wales and in other jurisdictions before making his judgement. Our view, which is backed by senior counsel, is that we can regard the current system as compliant on human rights grounds. However, we will not be sure until we receive the judgement on the Foster case.

414.

Mr Poots: The situation will not be clear-cut if it will take the judge a year to make his decision.

415.

Mr Maye: I agree, it is a very fast-moving area, and recently there have been many cases on the issue in England and Wales. The cases have all been moving in a similar direction. The judge wants to take stock of the general feel of the other cases, and to hear further evidence before he decides what to say in his judgement.

416.

Mrs Nelis: I agree that the consultation is important, but it is happening at the same time as the review of public administration. Will the Committee get only one bite of the cherry or will there be a further opportunity to become involved in the issue?

417.

Mr Nesbitt: You will view the consultation document before it goes out, and your view will probably be sought when it comes in after Christmas. We will have a new Assembly from 21 March 2003, and I am not sure how much can be done between January and March. However, the Committee will be involved at all stages.

418.

Mrs Nelis: Are you confident that you will be able to meet the deadline and that the Committee will fulfil its duties?

419.

Mr Nesbitt: I give a commitment here, and I would readily give it in the Assembly: this process with the Committee will be up and running by Christmas, and it will take place three months after that.

420.

Mrs Carson: How would a change in the law on third-party appeals affect the review of public administration?

421.

Mr Nesbitt: That is a big question. De jure, I make all of the 24,000 planning decisions. De facto, planning officials make many of those, but they all consult with councils. The review of public administration may, therefore, make a key recommendation that an elected representative take every decision. That would mean that councils, through the consultation process, could become the deciding body - if their numbers remain the same. That being the case, it could be argued - and this happens in the South - that accountability is introduced to the planning process, in that elected representatives reflect their constituents' views to the planning officials. A third-party appeal might take the planning decision out of the hands of elected representatives, giving a Planning Appeals Commission the right to decide.

422.

Planning is included in the review of public administration, regardless of whether a third-party right of appeal is introduced. Elected representatives in district councils must address that.

423.

The Chairperson: Is there not a basic equality issue? For example, an unsuccessful planning applicant has the right to an appeal. However, if the rest of the community is aggrieved by a planning approval, it has no right to appeal. Does the community not have a basic human right to receive equal treatment? In several cases, despite the fact that a whole community has been aggrieved by a planning decision, the approval could not be appealed. The concept of "beauty is in the eye of the beholder" is applied, and community members do not understand why a planning decision was forced on it.

424.

I fully support the right to appeal of applicants; however, a community has rights, and they are being regarded as inferior to the applicants'.

425.

Mr Nesbitt: I empathise with the intuitive logic of that. The community should not be merely consulted in an advisory capacity. It is correct that a development may proceed even if the whole community or council opposes it. If the community, through its elected representatives, opposes a proposal, the planning decision should reflect those community's views. Elected representatives could, therefore, have an important function to perform in upholding, or at least subscribing to, the rights of everyone.

426.

Mr Molloy: There are two sides to the problem. First, we are working under the assumption that those powers will be returned to local government. Many councils are reluctant to take on that role, because it is easier to blame the planners.

427.

Mr Nesbitt: Nothing crystallises the mind more than responsibility.

428.

Mr Molloy: That is a growing problem in the rural community. Poultry houses, for example, might never be built if the planning decision were left to the rural community It is a matter of trying to balance conflicting rights. I agree that there must be some mechanism by which the community can appeal against a decision, especially if there is strong objection to a plan. However, I am not certain that giving the responsibility to local government will be the best way of dealing with the matter.

429.

Mr Nesbitt: I am not saying that it is the best way of dealing with it. As Mr Molloy said, local government may not wish to make such decisions. When I was a councillor, Planning Service officials and Roads Service officials said that they wished that the council had authority. They wanted the council to tell them what to do, so that they could do it. However, I take the point.

430.

The Chairperson: I am informed that the Planning Appeals Commission is examining the human rights aspect of the issue, but it has not yet reached a decision.

431.

Mr Nesbitt: I look to Mr Maye for the details of that.

432.

Mr Maye: Like the Department, the Planning Appeals Commission awaits the outcome of the Foster case. They were a notice party in that case and gave evidence. We all await the judgement on the Foster case with bated breath, because we hope that it will clarify the legal issues. It will not, however, clarify whether people think that the introduction of a third-party right of appeal is a good idea from a policy perspective or a natural justice perspective - which is not necessarily the same as justice that is dispensed by a judge.

433.

The two arguments are slightly separate. However, for its own reasons, the Planning Appeals Commission firmly believes that there should be a third party right of appeal. I do not want to say on its behalf what those reasons might be.

434.

The Chairperson: If the consultation shows that third party appeals should be introduced, can we speed their implementation by including enabling provisions, which would allow the right to be introduced through secondary legislation, in the Planning (Amendment) Bill? If the Committee thinks that that is the correct route to take, the legislation could be introduced before dissolution.

435.

Mr Nesbitt: It would be possible to introduce enabling powers. However, that would involve making further legislative changes to the Planning (Northern Ireland) Order 1991. Any decisions on the proposed scope of that legislation must be drafted and made subject to a public consultation process. I am not sure that the timescale will allow for that.

436.

Mr Maye: The advice from legislative counsel is that the Department must decide on a precise model for third party appeals. A broad enabling power, which puts all the responsibility for changing the primary legislation onto the subordinate legislation, is not legally possible. Therefore, we would have to make the primary legislative changes in the Planning (Northern Ireland) Order 1991 now. That can be done only if a precise model is decided upon now. The power to make subordinate legislation will just add flesh to the bones.

437.

Legislative counsel firmly believes that it could be done in the time available, but the third party right would be extremely limited.

438.

The Chairperson: The Committee will seek further legal advice.

439.

Mr Nesbitt: I will mention the moratorium briefly. The Committee is seeking an extension to the Committee Stage of the Planning (Amendment) Bill in the Assembly, and the Department does not want to lose the Bill, given the enforcement powers, greater fines, spot listing, et cetera, that it will introduce. However, I would like the Committee Stage to be concluded by early or mid November at the latest.

440.

If the Committee applies for an extension until late November, it will have some flexibility. It can apply only once for an extension. The last time the Committee applied for a long extension, it tried to complete the work well within that time. It should aim to complete the Committee Stage by early to mid-November if we want to be reasonably confident that the Bill will receive Royal Assent before 21 March 2003. If the Committee does not complete its Stage by then, the Bill could be lost.

441.

The word "moratorium" was mentioned. I must be clear that there is no moratorium. Sewerage problems in Downpatrick and the Derry City Council area were becoming apparent, and an EU Directive was issued in March 2002 that raised the bar. Two hundred new sewerage works were required by the Regulation. We found that only 57% of Northern Ireland was compliant, whereas Britain was 95% compliant. With regard to the EU Directive, Northern Ireland was only 35% compliant. So, the Department issued a statement to planning officials in each division stating that refusals on the grounds of sewerage treatment works should not be issued. The Department said that we should hold back and look at the dynamics of the problem.

442.

I had another meeting with Peter Robinson yesterday. Officials are working on the problem, and I am committed to making a statement in mid-September. Put simply, the Department is considering the capital works programme for sewerage, when it will be introduced, and when the works will be up to standard. If, for example, I allow development on a particular site, I must consider whether it will be two years before the works are up to standard, and whether, therefore, we are exposing people to pollution. My judgement must be balanced. I want to be open with the community and let people know that, if I am to approve development, I have to consider the level of pollution. I must achieve a balance, and I want people to understand the dynamics of the situation when I make a recommendation.

443.

I may make the decision myself, and I may seek the Executive's opinion. I wish to support the Department for Regional Development, because it has often said that it needs additional resources. I also want the Executive to be seen to support what the Department for Regional Development is doing because their actions are measured by the colour of their money, as the old saying goes.

444.

We are trying to address the magnitude of the problem, and to help the Department for Regional Development, which, in turn, helps me to deal with environmental issues. The Executive support both Departments. That is the situation in a nutshell.

445.

The Chairperson: The Deputy Chairperson and I met with the Minister last week, and we reported back immediately to the Committee. We understand that the window of opportunity that the Committee is looking for must be sensible and rational in the circumstances, and we are now waiting for the Minister's statement.

446.

Mr Nesbitt: I said that I would make the statement in mid-September. I want to make it on Monday 16, but if I am to consult the Executive first, I could not make the statement until Thursday 19. I have given an undertaking. Clarity and certainty are needed on the direction that we are taking.

447.

The Chairperson: Minister, thank you for your time. I trust that the Committee will be able to make progress with these matters. We will consider what you said about the timetable for the Committee Stage of the Bill.

448.

Mr Nesbitt: Completion of the Committee Stage by early to mid-November would help to ensure that the Bill receives Royal Assent in time, and that it contains the parts that we want it to include.

449.

The Chairperson: I cannot make any promises on that. The Committee will decide whether that is fact.

450.

Mr Nesbitt: The Committee always does.

451.

The Chairperson: We are determined to do what we can to assist the community with planning.

MINUTES OF EVIDENCE

Thursday 19 September 2002

Members present:

Rev Dr William McCrea (Chairperson)

Ms Lewsley (Deputy Chairperson)

Mr Coyle

Mr Ford

Ms Nelis

Mr Poots

Mr Watson

Witnesses:

Mr I Maye )

Mr J Lambe ) Department of the Environment

Mr D Small )

452.

The Chairperson: I welcome Mr Ian Maye, Mr Jackie Lambe and Mr David Small from the Department of the Environment. Thank you very much indeed for coming. We will continue our consultation process. I would ask you to make your opening remarks, and Members can then ask questions.

453.

Mr Maye: Before I pass over to the experts on these issues, the Committee raised several issues when we appeared here about two weeks ago. We are just about to put a submission to the Minister with our recommendations on them, and, once agreed, we will put a paper to the Executive Committe. Some issues, for example increased fines and penalties, have to go to the Executive Committee for approval and, in turn, to the Secretary of State as they are reserved matters. However, we will share those papers with the Committee as soon as we send them to the Executive Committee. We had hoped to be in a position to let you know today, but we should know the Minister's view before the end of the weekend, and we should be in a position to tell you then.

454.

The Chairperson: That is about the level of fines and the stop notices.

455.

Mr Small: Before we continue with the clause-by-clause consideration, a point was raised last week about on whom a stop notice can be served quite apart from the question of how quickly it takes effect. Article 73(5) of the Planning (Northern Ireland) Order 1991 allows us to serve a stop notice on any person who appears to us to have an estate in the land or to be engaged in any activity prohibited by the notice. The powers are wide ranging and give us broad scope with whom we wish to serve the notice on. You expressed concerns about a particular case, and we fail to see why there was such difficulty in serving the stop or enforcement notice in that case. However, we can look at it in more detail, if you give us more information about it.

456.

Mrs Nelis: I would be happy to do that, and I am glad to hear that you have such widespread powers. However, the problem is using those powers. It is not just that case - I could cite several cases of developers putting a horse and cart through planning permission with conditions, and no attempt was even made to enforce them. When there was enforcement, notice was served on the developers, for whatever reason. That is what planners have been telling councils, and every member of the Committee has had similar experiences.

457.

Mr Small: We accept that enforcement has probably not been as robust as we would like. However, we have made a commitment to changing that. I see no reason for any difficulty in serving a stop or enforcement notice. If we have to be more robust, we will be.

458.

Mrs Nelis: This may come up during consideration of the clauses: you cannot enforce anything after someone chops down a dozen trees. How do you cross that Rubicon?

459.

Mr Small: In certain circumstances we can take enforcement action, and the Bill will give us new powers. Our powers are significantly strengthened when trees are protected by a tree preservation order. There is the level of fine that we can impose and the new powers that the Bill gives us to require the trees to be replaced. That has the effect of removing the development opportunity.

Clause 10 (Certificate of lawful use or development)

460.

Mr Small: In response to the consultation exercise, Down District Council suggested that the maximum fine that could be imposed by a court in cases where false or misleading statements were made must be made clearer. The Bill states that the level of fine to be imposed will be the statutory maximum. That refers to the standard scale and, although the amount is not stated, the statutory maximum is £5,000, so the level of fine is clear.

461.

With regard to Article 83(f) of the Order, the Planning Appeals Commission suggested that the wording should be amended to make it clear that only a Planning Appeals Commissioner can hear an appeal. The difficulty is that the wording used in one or two parts of the Bill suggests that the Planning Appeals Commission may appoint a person to hear an appeal. That is incorrect, and we will make the necessary amendment to make it clear that the Planning Appeals Commission will hear the appeal. We will share that amendment with the Committee when it is drafted.

Clause 11 (Rights of entry for enforcement purposes)

462.

Mr Small: Coleraine Borough Council suggested that the fine for wilful obstruction is inadequate, one of the issues raised by the Committee that we are considering. We hope to respond next week.

463.

The Chairperson: We hope that the levels are consistent.

Clause 12 (Listed buildings)

464.

Mr Small: Many comments were made about clause 12. Down District Council welcomed the changes but suggested that powers were needed for reinstating a building, or other construction, when unauthorised demolition had taken place. We already have that power under article 77 of the Planning (Northern Ireland) Order1991.

465.

The Hearth Revolving Fund referred to the need for higher fines to reflect the financial benefit to the developer. As you know, such increased maximum levels are now proposed in the Bill. The Hearth Revolving Fund also suggested that fines should be imposed per property rather than per case. We can do that already. That concern goes back to a case where a judgement was made on legal advice to pursue a case for demolition as a whole rather than per property.

466.

The Historic Buildings Council also suggested that the maximum level of fine in a Magistrates Court should be £1 million. We have already had a lengthy discussion with you about the maximum level of fine in the Magistrates Court and the unlimited fines in the Crown Court.

467.

The Ulster Architectural Heritage Society said that the loss of historic buildings in conservation areas was not addressed separately. The listed building provisions in the principal Order and the Planning (Amendment) Bill are applied to buildings in conservation areas. The Bill deals with that but in a less explicit way than the Ulster Architectural Heritage Society would like. Its other point concerned the maximum level of fine, and that has been dealt with.

468.

The Chairperson: There is a deep concern about losing historic buildings. The situation is becoming quite horrible. In clause 12, which replaces article 44(6) of the Planning (Northern Ireland) Order 1991, the proposed new paragraph 6(b) says that a person guilty of an offence shall be liable

"on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine or both".

469.

Can you describe a situation in which that would be imposed?

470.

Mr Small: The penalties have been increased for a developer who fails to comply with a listed building enforcement notice. Fines have been increased to a maximum of £30,000 in the Magistrates Court and to an unlimited amount in the Crown Court. Furthermore, custodial sentences have been introduced. The courts will determine the penalty, but the new legislation offers a better range.

Clause 13 (Hazardous substances)

471.

Mr Small: The effect of this clause is to introduce higher levels of fines and penalties for contravention of hazardous substances notices. Coleraine Borough Council said that the maximum level of fines should be higher. That matter has been addressed separately.

Clause 14 (Replacment of trees)

472.

Mr Small: Coleraine Borough Council was concerned about the grounds for appeal, as set out in the proposed new Article 82(a) of the Bill. It suggests that they may be misused. We do not accept the council's concerns. The grounds for appeal are standard and reasonable and, as with all appeals, the Planning Appeals Commission will determine whether the grounds for an appeal are valid.

473.

The Royal Society for the Protection of Birds was concerned that not enough tree preservation orders were being imposed. We acknowledge those concerns and are committed to using tree preservation orders more robustly and proactively than in the past.

Clause 15 (Demolition)

474.

Mr Small: Many comments were made about our use of the new powers and how far they will be extended. We intend to extend the new control over the demolition of buildings in areas of townscape character (ATCs) that are identified in a development plan. The number of ATCs in place now is expected to grow considerably, so that a significant number will be in place offering that new control over demolition. Should the need arise, we will have discretion under the provisions of the Bill to extend that control of demolition to other classes of buildings.

Clause 16 (Reversion to previous lawful use)

475.

Mr Small: No specific comments were made about clause 16.

476.

The Chairperson: We will stop there to allow members to raise questions.

477.

Mr Ford: I am perturbed by your response to suggestions on clause 14 to the effect that it is not the Department's function to protect trees. I know what you mean, but the phraseology is unfortunate. There is a suggestion that you only have discretion to allow tree preservation orders (TPOs) for trees on land considered to be under threat of development. What does "under threat of development mean"? Trees are under threat in every suburb of Belfast and on the fringes of every small town in Northern Ireland, so they all appear to met your criteria for TPOs.

478.

Mr Small: In those circumstances you are right. I refer back to our intention to be more proactive in how and where we serve TPOs. In the past there was a tendency to apply a TPO where development was proposed and the threat was very real. We could look at extending that approach.

479.

Mr Ford: Do you not think that the first sentence at that bullet point - that it is not the Department's function to protect trees - is perhaps more than unfortunate?

480.

Mr Small: Yes. The intention was to acknowledge our function to protect trees in specified circumstances.

481.

Mrs Nelis: What does specified criteria mean in relation to clause 14?

482.

Mr Small: That was a point made by the Royal Society for the Protection of Birds. It felt that the circumstances in which we would contemplate imposing a TPO needed more specific criteria. I am not clear what is intended by that, but the danger is that it might limit our discretion when making a tree preservation order, and we must maintain as much discretion as we can.

483.

The Chairperson: If the removal of a building is part of a development, could it not be that the removal of trees is part of a development and that the purpose of removing trees is development? Coleraine Borough Council raised that point in the discussion about demolition.

484.

Mr Lambe: The answer is yes. Where there is a current development proposal, it could be argued that the removal of trees is part of that proposal. It is more difficult to see that argument when someone decides to remove trees because he does want them there but has not yet decided what to do with the site, to use it for development or for some other purpose.

485.

Linking the removal of trees to some future development proposal might be difficult to justify and argue in all circumstances. It would depend on exactly when the trees were removed and on whether a development proposal was with the Department or being contemplated by the landowner or developer. People often remove trees simply to reserve their options for the future should they wish to develop a site. Linking the two might be difficult to prove at some future enforcement or court case. I do not know how a court would view that.

486.

There is a strong argument for linking the removal of trees when a firm development proposal is before the Department. A developer might get round that by persuading a landowner to remove trees in anticipation of his disposing of the site, so the developer could not be held responsible for their removal. The Department cannot penalise the developer, who is now the landowner, for removing trees at a time when he had no responsibility for the land.

487.

Mr Small: There would have been no firm development proposals.

488.

The Chairperson: Can any protection be given in law to deal with that problem?

489.

Mr Small: We have debated that with you before, and it was considered that the kind of protection desired would probably require blanket protection against all removing or cutting down of trees. The implications of that for private house owners who simply wanted to remove a tree from their private garden would be considerable. The resource implications for the Department and the costs for individuals would be significant if every individual were required to seek planning permission to do that. We have looked at that and have serious concerns about how it would operate.

490.

Mrs Nelis: The Bill must address the current situation. Developers move in on a Saturday morning and cut down the trees, and nothing can be done then. They then apply for planning permission and give an assurance that they will replace the trees. However, history has shown that they do not replace them. Mr Ford has said that the fauna and flora of the countryside are being eroded by development, and I am concerned that there is a weakness in legislation on this.

491.

Mr Maye: The weakness is more a practical than a legislative one. We should really survey the whole of Northern Ireland, identify trees which should be protected and impose a TPO. That is happening.

492.

The Chairperson: Most of the developers will have the trees cut down by the time that is completed.

493.

Ms Lewsley: Particularly if they hear what the Department is doing.

494.

Mr Maye: If we impose blanket protection on all trees, every householder and farmer in Northern Ireland will have to apply to the Department before he or she can touch any tree anywhere.

495.

The Chairperson: The Committee is asking the Department to see if there is a way to deal with this. It is not going into the situation referred to: that is not the purpose of the Bill. The Committee wants people in councils who can draw up legislation to see whether it is possible. It has been suggested that a new paragraph (e) could be added to the list in clause 15(1). Perhaps that could be looked at.

Clause 17 (Power of Department to decline to determine applications)

496.

Mr Small: This clause gives the Department power to decline to determine a repeat application, which is one that is similar to an earlier application that the Department refused. That provision was proposed in the Department's recent consultation paper 'Modernising Planning Processes'. In fact, the proposal was made during consultation on the Planning Bill in 1999, so its inclusion in that paper was unnecessary. We are content that the clause should remain part of the Bill.

Clause 18 (Assessment of environmental effects)

497.

Mr Small: This gives the Department primary legislative powers to introduce more environmental measures linked to environmental impact assessment requirements. The Regulations to implement the EC Directive on environmental assessment were implemented under the European Communities Act 1972, which meant that our legislative provision had to be in keeping with the basic requirements of the Directive. The provision in the clause simply gives us a little more discretion and scope.

Clause 19 (Dismissal of appeals in cases of undue delay)

498.

Mr Small: This clause gives the Planning Appeals Commission (PAC) the power to dismiss appeals in cases of undue delay. Since the Committee consulted with the PAC on the provisions of the Bill, the chief commissioner has told us that he does not have a problem with undue delays and sees no need for such provision. We considered the power to be permissive - the Commission would use it if, and when, it determined it was required. However, given the chief commissioner's views, we have reviewed this. It may be wrong to include that power when the chief commissioner has said that he does not need it, so we propose to withdraw that clause if the Committee is content.

499.

The Chairperson: Given that the PAC has said that, agreeing to the clause's removal should not be a problem.

500.

Mr Small: We will also listen to the views of OFMDFM, which sponsors the PAC.

501.

Mr Ford: Why did you introduce the clause if the PAC said that it has no problem with undue delays? The fact that there is no problem now is not necessarily a reason for not introducing it. There might be a problem in five years' time, and there will not be another Planning Bill for years.

502.

Mr Lambe: The Planning Inspectorate in England was granted the power to dismiss appeals in case of undue delay under the Planning and Compensation Act 1991. When the consultation paper was being produced, the Department gave a commitment to include a range of new enforcement measures in the Bill. One such measure was the power to dismiss appeals in cases of undue delay that was outlined in the 1991 Act. At the time, no one expressed any concern about the power. Thus, we drew up the draft instructions to have it included in the Bill. It is only now, at this late stage, that the Planning Appeals Commission has told us that it does not feel that it needs the power.

503.

Mr Ford: It would be interesting to know about the experiences of the other three jurisdictions, given that they have had the power for 10 years.

504.

Mr Maye: We can find out more about that.

505.

Mr Ford: When I first read clause 17, I did not study article 25(a)(1)(a)(i) very closely. Why does it specifically refer to article 31 alone? Should not repeat planning applications that might adversely affect small neighbourhoods be subject to dismissal as happens with repeat applications that affect large neighbourhoods that were refused under Article 31? Are the problems not the same?

506.

Mr Small: Article 31 cases are resource-intensive. The intention was to free the resources that are wasted on processing repeat applications so that other issues can be dealt with.

507.

Mr Maye: We canvassed views on that in the consultation on 'Modernising Planning Processes'. The majority of respondents said that we should extend the provision to all cases, so that, when repeat applications without material changes are made, the Department need simply not consider them.

508.

Mr Ford: I suspect that those consultees did not include the small group of residents in a particular street who happen to be affected by one issue. If you examine the public concern, as well as the Department's resource issues, you would find a wider case for extending the provision.

Clause 20 (Planning agreements)

509.

Mr Small: The Housing Executive asked why planning obligations, which would have a wider scope, were not introduced. The Bill's provisions do that but keep the local term "planning agreements", so what the Housing Executive suggested has already been incorporated in the Bill.

510.

We did not take on board the unilateral aspect of planning obligations. That provision dealt with a specific problem that occurred in England, when a local authority demanded too high a contribution from the developer. They failed to reach an agreement, and the case went to the Secretary of State on appeal. In those circumstances, the unilateral aspect of the provision, which was enacted in England, gave the Secretary of State a unilateral power to agree an appropriate contribution from the developer. In Northern Ireland that power would be given to the Planning Appeals Commission. Given the different legislative and planning arrangements here, where the Department of the Environment is the planning authority, it was felt that the sort of difficulties that led to that provision's being included in English legislation were unlikely to arise here and that the unilateral aspect was, therefore, unnecessary.

511.

Lisburn Borough Council referred to article 40(A) and suggested that it should be amended to reflect consultation with district councils. We have no plans to change the Bill to include consultation with district councils on a matter that deals with modification to a planning agreement where agreement has been reached between a developer and the Department. There was no widespread comment on, or support for, Lisburn's proposal. Consultation with district -

512.

The Chairperson: Would that be viewed as too democratic?

513.

Mr Small: No. That was not our thinking. This is part of the process through which a developer and the Department reaches agreement on contribution, and the extra step of consulting district councils would simply delay the process further. Agreeing the terms of a planning agreement can be a long, drawn-out process as it is. We viewed the proposal as another hurdle which would cause further delay. Given that it had no other support, we were content with the Bill's provisions.

514.

The Chairperson: Giving the impression that the proposal had no other support would be wrong. Perhaps no one else saw the flaw. It was not the case that a proposal to consult with district councils was put to consultees and received no support. That is a completely different view.

515.

Mr Small: I take your point, but not all consultees agreed.

516.

Mr Lambe: Lisburn Borough Council suggested that councils should be consulted when the Department proposes to amend article 40 agreements. It did not suggest that councils need to be consulted when article 40 agreements are originally drawn up. There does not seem to be logic in consulting councils on proposed amendments to agreements and not consulting them when those agreements are first drawn up.

517.

The Chairperson: Are you suggesting that to be consistent?

518.

Mr Lambe: We were not told that district councils should be consulted when planning agreements are first drawn up.

519.

Mr Small: We would need to consider that in a broader sense rather than just on modification purposes.

520.

Mr Ford: The Committee might suggest that.

521.

The Chairperson: It might. It is an important point worth considering. Consistency is also important.

522.

Mr Maye: It fits into the context of councils' earlier engagement with the Department when the principle elements to be included in planning applications are thrashed out. Article 40 agreements put flesh on the bones. Modifications happen at the detailed stage rather than at the principle stage.

523.

The Chairperson: Councils are usually consulted at two stages when a planning application is being considered: the principle stage and the full stage, so it is surely appropriate to suggest that, if they are consulted at the principle stage, they should also be consulted on detailed amendments.

524.

Mr Ford: I agree. Many site meetings end up haggling over details rather than discussing the principles of an application. It seems entirely consistent that councils should be involved at both stages.

525.

The Chairperson: Yes. Will you take the Committee's view on board?

526.

Mr Small: The Planning Appeals Commission also raised a point on clause 20, repeating its concern about the wording used when a case is referred to appeal, which we dealt with earlier. It should clearly be an appeal by the Planning Appeals Commission.

527.

The Royal Society for the Protection of Birds said that planning agreements should be secured within a clear strategic planning framework including development plans. Our view is that planning decisions are made in accordance with prevailing planning policies, including the development plan, and reflect that planning framework.

Clause 21 (Advertisements)

528.

Mr Small: The purpose of clause 21 is to broaden the scope of the definition of advertisements. Two consultees commented on the definition of advertising and specific types of advertising. We are reviewing the enforcement of advertising controls and considering a range of matters. There are no firm conclusions as yet, but there could be a change to the primary or subordinate legislation or to the enforcement procedure. We cannot make progress until that work is concluded.

529.

The Chairperson: I mind your leaving that to be dealt with by another Bill. When will that be? This will go on the long finger with a lack of control in the meantime. I am sure that members have views on that.

530.

Mr Small: We know that, which is partly why the work has been initiated. Any change is more likely to be a change to subordinate legislation on advertising regulations rather than to primary legislation. We are not clear about what form of legislative change will be appropriate, and that is why we are unable to develop proposals.

531.

The Chairperson: We will have to return to that point.

532.

Mr Small: However, we are considering that seriously.

533.

The Chairperson: I spoke to the authorities several times about a hole in a road in my constituency and was assured that men were looking into it. I went to the site and found four men looking into it. It would have been better if one of them had been looking into the hole and the other three were doing something about it. Just because you are looking at something does not mean that you will move on it. However, I am happy to be surprised.

Clause 22 (Building preservation notices)

534.

Mr Small: Clause 22 deals with building preservation notices and the Department's new power to impose such a notice to achieve immediate listing. Down District Council welcomed the new power and said that it should come into force as soon as possible. Such building preservation notices will become effective as soon as they are served. The arrangements for that are set out in clause 22 article 42(a). In urgent cases, the Department has the power to serve a building preservation notice simply by placing a notice on the building, so it can take immediate effect.

535.

The Hearth Revolving Fund asked if building preservation notices can be invoked as a precaution. They can, but there will be compensation provisions in the Bill for circumstances in which the Department imposes a notice but fails to confirm the listing within six months. In such circumstances, any loss suffered during that time may be subject to compensation payment.

Clause 23 (Trees)

536.

Mr Small: Many comments were made about clause 23. The Construction Employers' Federation referred to the need for consultation with builders and developers. Landowners and those with an interest in land will be consulted prior to the imposition of a tree preservation order.

537.

The RSPB had reservations, of which we are aware, that not enough tree preservation orders were being imposed and referred to the need for specific criterion.

538.

The Ulster Architectural Heritage Society suggested that trees within the curtilage of a listed building should automatically be protected by tree preservation orders in the same way as that power is applied in conservation areas. There is nothing to prevent us from serving a TPO on trees that are in the curtilage of a listed building, but we are concerned about giving automatic protection because of the legal difficulties involved in defining the curtilage of a listed building. Linking automatic protection to those legal difficulties makes the suggested provision difficult.

539.

The Chairperson: Will you ask your legal experts to explain the difficulties? Our legal department has helped us with such difficulties, some of which were not as complicated as they seemed.

540.

Mr Small: We will look at that.

541.

The Chairperson: How is the compensation that clause 22 deals with determined? Will the Department be liable for compensation if notice is not confirmed within six months.

542.

Mr Small: I may have to come back to you on that. I suspect that it will be based on a case in court.

543.

Mrs Nelis: If the owner of a building who is served with a preservation notice says that the building is structurally unsound and therefore unsafe, how will the Bill address the owner's responsibilities and those of the Department to preserve a building which is not structurally sound?

544.

Mr Small: The effect of the building preservation notice will be to give that building the same protection as that given by listing. The existing listing powers in the Planning (Northern Ireland) Order 1991 will apply immediately. That also addresses circumstances in which there is deemed to be a risk.

545.

Mrs Nelis: Is the developer responsible?

546.

Mr Maye: In such circumstances the builder can be served notice to ensure that any remedial work is carried out to return the building to a good condition. There are difficulties with that and with the burden of proof if the builder or the owner presents a report by his independent expert. Sometimes that must be challenged and there are difficulties in practice. We are satisfied that the legislative provisions give us the necessary powers, but it can be difficult to put them into practice.

547.

The Chairperson: Perhaps it might be best to check to be sure that the guidance is clear.

548.

Mr Small: We shall come back on that. The Planning (Northern Ireland) Order 1991 sets out clearly that the need to do that must be demonstrated.

549.

Mrs Nelis: We want to preserve our lovely buildings, but some are in such a state of disrepair that they constitute a risk.

550.

Mr Ford: With regard to clause 23, the Woodland Trust and compensation payments, what is the position regarding compensation payments for TPOs? How many are there, and what is their sum?

551.

Mr Maye: There are several types of compensation. In two particular cases we are in dispute with the landowner, who has applied for compensation for loss of development value. Those cases are with the Lands Tribunal, but no decisions have been made. There are several other types of compensation. In practice, the landowner requests a valuer to value the compensation payable. We cross-check that with the Valuation and Lands Agency and senior counsel and haggle until an agreed figure is reached. We can come back to you with details of particular types.

552.

Mr Small: The Bill makes provisions to enable the Department to state clearly the compensation allowed. For example, we will be able to make it clear that the development value associated with a site will not be included in any compensation payment. That is really where the difficulty arises.

553.

Mr Ford: That meets the Woodland Trust's point.

554.

The Chairperson: You will come back on that. That is fine. Let us move on to clause 24.

Clause 24 (Status of development plans)

555.

Mr Small: The explanatory and financial memorandum says that clause 24 means that development plans will have prime importance when planning applications are being decided. Several comments were made, and the general concern was that such provision should be introduced in the absence of up-to-date development plan coverage. We are considering when the new measure will take effect, and we are conscious of linking that to our current development plan programme, which is aiming for full, up-to-date coverage as quickly as possible.

556.

The Chairperson: There is genuine concern because many areas do not have up-to-date development plans.

Clause 25 (Planning Appeals Commission)

557.

Mr Small: This deals with a range of provisions relating to the Planning Appeals Commission (PAC). The key point raised by the PAC during consultation was that the chief commissioner should be allowed to allocate decision-making on individual appeals to individual commissioners to get greater flexibility in the operational handling of appeals. Our view is that in the Planning Service decisions are made by a minimum of three senior planners. The Department and the Minister are opposed to allowing individual commissioners to determine appeals partly to maintain confidence in the process and partly to protect individual commissioners. We still wish to resist that proposal.

Clause 26 (Grants for research and bursaries)

558.

Mr Small: Clause 26 sets out the circumstances in which grants will be payable. There were no specific comments on that.

Clause 27 (Grants to bodies providing assistance to certain development proposals)

559.

Mr Small: Coleraine Borough Council suggested that the provision in the Bill should contain examples of bodies and that it should be extended to include grants to Planning Aid and others. Our view is that it is a discretionary power and that each case will be determined on its merits. We would be reluctant to limit our discretion to offer grants by listing specifically the bodies to which we want the new grant-making power to apply.

Clause 28 (Planning register)

560.

Mr Small: Clause 28 deals with the circumstances and papers that must be placed on the planning register.

Clause 29 (Home loss payments following planning blight)

561.

Mr Small: Clause 29 is a provision to put right something that was missed in legislative change in 1992. It is a minor technical amendment, and no specific comments were made.

Clause 30 (Minor and consequential amendments and repeals)

562.

Mr Small: Clause 30 sets out the minor consequential amendments and repeals that will be necessary because of the main provisions. No comments were made on this.

Clause 31 (Commencement)

563.

Mr Small: Again, no comments were made.

Clause 32 (Short title)

564.

Mr Small: No specific comments were made about this clause either.

Schedule 1 (Minor and consequential amendments)

565.

Mr Small: In relation to schedule 1, paragraph 5, representatives of the PAC suggested that article 32(6) should be amended. They suggested that the reference in article 32(6) of the Planning (Northern Ireland) Order 1991 to applying earlier articles 23 and 24 should be removed. We accept that. Article 32(6) should not refer to the application of articles 23 and 24 because they are not relevant. We propose to make that amendment, which we will share with the Committee.

566.

The Chairperson: In response to Coleraine Borough Council, you said that you were not minded to include any list. Can you give examples of the bodies?

567.

Mr Maye: They would include Planning Aid, Community Technical Aid and several other bodies. Our main point is that we want to retain the discretion so that when new bodies come along, just as Planning Aid has only come along in the past 18 months, we can consider them seriously.

568.

Mr Small: We pay a grant to building preservation trusts on an extra-statutory basis because of what the current legislation says. This provision will allow us to give it statutory cover.

569.

Mrs Nelis: I support Coleraine Council's view that statutory cover should also be given to Planning Aid.

570.

Mr Maye: This will allow us to give that cover.

571.

Mr Ford: I am surprised that the wording of clause 27 includes Planning Aid and Community Technical Aid. It does not appear that they will be entirely covered, and slightly different wording might make it absolutely explicit that they were suitable. I am not suggesting the wording, but no doubt it will take the lawyers several weeks to think it up. The issue is about providing full cover for groups like Community Technical Aid that do not seem to have their principal objectives listed, groups which are there to assist those commenting on such matters.

572.

Mr Maye: We will double-check that.

573.

Mr Small: We will check that. However, it may be covered in some of our existing provisions.

574.

Mr Ford: Clause 25 refers to the PAC delegation. Is the Committee to take it that there was strong representation from the chief commissioner that this should be allowed but that at the moment the Minister does not agree? We had a suggested clause on a previous matter that the chief commissioner said was not needed, and the Minister followed his advice then.

575.

Mr Maye: Our Minister, and OFMDFM Ministers, are involved in that, and they also oppose the changes suggested by the PAC. They see value in continuing corporate decision-making in the PAC to ensure consistence and quality.

576.

Mr Small: The earlier provision relating to dismissal of appeals was a permissive power that we had contemplated giving to the PAC. However, it said that it did not need it.

577.

Mr Ford: I accept that the situation is not entirely analogous.

578.

Mr Small: In this situation it is suggesting a complete departure from the way things operate at present.

579.

The Chairperson: You will be coming back to us again on certain matters. Members will read through the suggestions and concerns in the last part of the Bill, and that will be dealt with next week. We have moved on substantially today.

580.

The Clerk has reminded me about the Minister's request. It will be dealt with as fast as the Minister's Department gets answers. Thank you.

581.

Mr Maye: Thank you.

MINUTES OF EVIDENCE

Thursday 3 October 2002

Members present:

Rev Dr William McCrea (Chairperson)

Ms Lewsley (Deputy Chairperson)

Mr Armstrong

Mrs Carson

Mr Coyle

Mr Ford

Mr McClarty

Mr Molloy

Mrs Nelis

Mr Poots

Mr Watson

Witnesses:

Mr J Lambe )

Mr I Maye ) Department of the Environment

Mr D Small )

582.

The Chairperson: I welcome Mr Ian Maye, Mr David Small and Mr Jackie Lambe from the Department of the Environment. Good morning, gentlemen. I understand that you are going to give a presentation on the issues and concerns raised by the Committee at previous meetings.

583.

Mr Maye: This is Mr Small's last appearance before this Committee. He is about to go to the Department of Agriculture and Rural Development, so he will be up before another Committee from now on. His place will be taken by Mr Wilfred Reavie, who is a long-standing member of the Planning Service with legislative experience. Mr Lambe will remain part of the team, so that we will not be bereft of all experience.

584.

The Chairperson: Mr Small, I wish you every success in your new appointment. I trust that you will find it rewarding.

585.

Mr Maye: We will run through the issues, set out in the Minister's letter of 2 October, which were originally raised by the Committee four weeks ago. We will stop whenever you see fit to ask questions or if you want clarification. We will then move on to the points, primarily of clarification, that were raised two weeks ago.

586.

Mr Small: The Minister's letter addressed four issues raised by the Committee on 5 September. On two of those issues, the Minister intends to put proposals forward to the Executive Committee and the Secretary of State. On the other two issues, he explains in the letter why he feels unable to accept the recommendations of the Committee.

587.

I will deal first with the issues on which the Minister accepts and empathises with the Committee's views.

588.

First, the Minister agrees that the proposed levels of fines under clauses 1, 2 and 8 of the Bill should be increased from level 3 on the standard scale (£1,000) to the maximum of the standard scale (£5,000). There is logic in that. The Minister will suggest that to the Executive Committee. His view is that the kind of increase proposed is consistent with the earlier proposal to increase the maximum level of fine available in the Magistrate's Court from £20,000 to £30,000. To ensure consistency with other provisions in the Planning Order (Northern Ireland) 1991, the opportunity will also be taken to increase the levels of fines available under articles 22 and 66 of that Order. There is a similar rationale for increasing those from level 3 on the standard scale to the maximum of the scale.

589.

Secondly, the Committee asked whether the proposed custodial sentences in the Bill for offences relating to listed building consent could be extended to other offences in the Bill. The Minister empathises with that proposal; such a change would send a clear message to those who seek to breach planning control. He intends to send papers on that to the Executive Committee and the Secretary of State. On both of those issues, the Minister agrees with the Committee's recommendations.

590.

Two further issues were raised. The first was to do with stop notices. The Committee will recall that the essential point was whether such notices ought to take immediate effect. The provisions, as drafted, allow stop notices to take immediate effect whenever the Department so determines. The Committee's view was that it should happen automatically. The Minister has considered the issues raised by the Committee but believes that the provisions as currently drafted are appropriate. There are a number of reasons for that.

591.

The first reason is that stop notices are only one of a number of powers available to the Department to stop activity. The Committee will be aware that clause 3 provides the Department with new express powers to seek court injunctions to stop unauthorised activity. The Department already has substantial powers through that process.

592.

The second point is that we are concerned about the possible implications of stop notices taking immediate effect in every situation. The main concern is that it may simply be impossible for developers to make safe unstable structures or buildings that are unsafe or unstable. There are serious potential dangers. The Committee suggested that we make provision for circumstances like that, under which we could specify that the stop notice would not take immediate effect. Our concern is that it would be virtually impossible for the Department to make those judgements with absolute confidence and certainty. Getting it wrong could have serious implications.

593.

The Minister's view is that clause 9 gives the Department the power to make a stop notice take immediate effect in cases where, for example, we think that an activity is causing serious environmental damage and should be stopped immediately, and where we can be absolutely confident that there are no dangers associated with doing that.

594.

Finally, the new powers to better enforce stop notices are worth mentioning. The Bill sets out a range of new powers, including higher fines, the proposed new offence of unauthorised activity, and the proposed custodial sentences. That is an important point. Part of the Committee's concern, I think, is that even where a stop notice or enforcement notice takes effect, the unauthorised activity often continues. The Chairperson made that point at the last meeting. Our view is that the new powers in the Bill will allow us to change that situation. Where a stop notice takes effect, whether it does so within a day or immediately, it will take effect in an appropriate manner. Where it does not, we will use the significant new powers in the Bill to enforce it.

595.

The other point raised was in relation to the protection of trees. Again, the Minister empathises with the Committee's view that there may be other circumstances in which we ought to be able to apply protection to trees, outside the very specific circumstances of tree preservation orders (TPOs). We discussed at the last meeting our concerns about blanket protection, and I think that the Committee accepted that there were reasons why that was not appropriate.

596.

Nevertheless, the Minister accepts the Committee's view and agrees with the Committee's proposal that we should look further at finding some other means of extending control. He has asked officials to liaise with departmental solicitors, and we are doing that at the moment. We have asked for their views on a possible model that would give the Minister some discretion through which he could extend TPO-type control to specified locations or specified circumstances. We are awaiting legal advice on that point. The Minister accepts the Committee's views, and we are taking the matter forward.

597.

The Chairperson: The first two issues, on which the Minister has accepted our views, we will take as read. I am sure that Members will want to comment on the other two issues.

598.

Mr Molloy: With regard to stop notices, I think that wording could be inserted that would mean that notices would have to be implemented, but with due care given to the protection of the building. I do not think that someone in the middle of taking down a building would be told to stop and would have to leave it in an unsafe condition. The legal people could put together a wording that would ensure that it had to be made safe, but also that the stop notice would have to take effect.

599.

Mrs Carson: I am concerned about the tree preservation orders. It is still a bit woolly. I am concerned that the maximum fine for an offence under the relevant clauses is only level 3, or £1,000. That is not very much. Only yesterday I received letters from people who were concerned about trees being taken down by the Roads Service. We need to tighten up, because once the tree is down, it is gone. We should have a higher level of fine.

600.

Mr Small: That is one of the fines that we intend to increase in the context of the suggestion put forward by the Committee. There are two levels of fines that can be applied in relation to trees. There is one level where damage is done to the tree that is not likely to kill the tree. The level of fine for that, we propose, will be increased to £5,000. In cases where a tree is removed or felled unlawfully, the level of fine in the Magistrate's Court will be increased to £30,000, subject to the agreement of the Executive. In the Crown Court, the level of fine that can be imposed will be unlimited.

601.

Mrs Carson: It sounds good, and I hope it works, because £30,000 is not much to a large developer. If one or two trees are putting a development at risk, £30,000 or £60,000 can be written off. I am still concerned.

602.

Mr Small: The other relevant provision in the Bill is that, where trees are removed unlawfully in breach of a tree preservation order, they must be replaced. That will be an automatic requirement. It will not free the site for development. The developer may still face the £30,000 fine - or higher, if we take it through the Crown Court - and he will have no development with which to recover that loss.

603.

Mrs Carson: How are we going to encourage more people to take out tree preservation orders?

604.

Mr Small: Tree preservation orders are a matter for the Department. It is for the Department to determine where it is appropriate to place TPOs and to establish some sort of programme for doing so.

605.

Mr Maye: One thing that we are doing, as we have reported to the Committee before, is to conduct a survey of all woodland in Belfast, under the Forest of Belfast initiative. That will lead to recommendations. We would like to replicate that in other parts of Northern Ireland. In the meantime, when an individual or a community group comes to us with a request for a TPO to be put on land, we look very seriously at that. When planning applications are submitted, if there are already trees on the land our own planning officers will often request the imposition of a TPO. We take that very seriously.

606.

The combination of those three approaches should help us to better protect trees as a whole, but the issue that the Minister has asked us to look at is whether we can put a mechanism into this Bill to allow him to protect classes of trees in certain circumstances, such as within the curtilage of a listed building or in an area of townscape character. That is what he wants us to explore, because it would give him great flexibility. We could protect particular classes of trees, rather than looking at individual stands of trees on an individual basis, which is essentially what we are doing at the moment and which is not satisfactory. It means that we have to look at each in a particular way, and that is labour intensive. If we can protect classes by a legislative mechanism, then that is much easier to administer and police.

607.

Mrs Carson: Thank you, I look forward to that.

608.

Mr Poots: In relation to the stop notices, you indicate that the three-day period is there; it could be made shorter. You also indicated the problems there could be if you had an immediate stop notice in relation to raw sewage, for example, spilling out. I think that it should be turned round so that the stop notice should take immediate effect unless there are particular reasons for it not being able to do so. It should continue for a period of up to three days in relation to, for example, raw sewage, or health and safety issues. The emphasis should be on illegal development, and in such circumstances the stop notice should be immediate. Then, if there are other considerations to be taken into account that would allow some development to take place for health and safety, or other, reasons, that should be included. The emphasis of the stop notice should be turned round in relation to the three days to sort things out, because there will be people who will use those additional three days to continue with further development.

609.

Mr Small: I think the Minister's response on that is that while we accept the reasons for the proposal the Committee makes, we would like to reserve the discretion relating to when the Department feels it is appropriate to make a stop notice take immediate effect - because there will be circumstances where an activity has to stop immediately, and we will specify through the planning policy statement the kind of circumstances where we feel that will be the case, and in those cases we will make it take immediate effect. Our concern still revolves around a situation where if a stop notice were to take effect in every single case unless the Department specified that it was not going to, the onus would then fall on the Department to determine in a very accurate way in every single circumstance where there was some potential danger, either for health and safety reasons or some other danger that we may not have foreseen. Where that happens, and where we fail to foresee that danger, and something awful does happen, the responsibility and liability for that will fall to the Department. However, that is not to say that where an activity is being carried out which we feel must stop immediately that we will not use a stop notice. We will make a judgement on a case-by-case basis depending on the individual circumstances, and that will probably involve inspecting the site in each case. We also will retain the clause 3 power of injunction where some major unauthorised piece of development is taking place and where we can, through a court injunction, have the activity stopped immediately. Our view is that the power is there to allow us to do it; we simply want to retain some discretion in how we do it, rather than have our hands tied through an automatic requirement.

610.

Mr Ford: First, on tree preservation orders, I do not see anything in the Minister's letter which refers to a point that I have made previously about the issue of the preservation of the habitat around the trees rather than merely single trees on their own - something that does not yet appear to be addressed in any part of the UK, but there is no reason why we should not be first. But on a more substantive point, the fourth page of the Minister's letter has a long paragraph which starts: "Clause 9, therefore". It forms the basis of what Mr Small has just said in relation to whether or not we go for immediate implementation or the three-day delay. It seems to me that the implications of the references in the Minister's letter to cost benefit and assessment on foreseeable costs and so on gives the impression that you will only consider in a minority of cases acting early if the stop notice takes effect from three days. Surely if the matter is being considered properly, that sort of assessment needs to be carried out in any case? Therefore, it seems to me that it can as easily be carried out to determine whether it does not need to come into operation, as to whether it does. The only alternative implication is that you are not actually going to be seriously considering whether a stop notice should take place immediately, because that is the only circumstance in which you would not be doing that assessment anyway.

611.

Mr Small: I think that those kinds of assessments - for example, the cost-benefit analysis that you mentioned - will have to be carried out in every single case, no matter whether it takes immediate effect or takes effect within a day or two days. The other factor that we are just uncertain about is the potential danger that we may not have foreseen, or the potential damage that may result which we had not foreseen, and where liability for getting that wrong will transfer to the Department. Although we can anticipate the kind of health and safety situations that might arise, such as an unstable piece of structure, where we can see easily that matters need to be put right before the stop notice takes effect, there might also be circumstances that we cannot anticipate or foresee, and where we will get it wrong. By requiring a stop notice to take effect immediately, or by requiring the developer to lift his machinery and take it off site, there may be some consequence that we had not anticipated. It is situations such as that that we simply do not want to tie our hands on.

612.

Mr Ford: Is that not dealt with by the point that Mr Molloy made at the beginning of this discussion - that it should be possible to phrase the requirements in such a way as to provide for matters which need to be completed for urgent health and safety considerations or whatever? I am not a lawyer, but I am sure that your lawyers could come up with wording to cover that.

613.

The Chairperson: Although it is true that there may be circumstances which you have not perceived, and, therefore, by having it before the three days you would be leaving the Department open to problems, it can also be turned the other way round. Say, for example, you give three days, and you do not perceive the situation to be dangerous. Is that not leaving yourselves open?

614.

Mr Small: Three days would be regarded as a reasonable period for a contractor or developer to make a site safe.

615.

The Chairperson: It could be three days in which a contractor could do an awful lot of further damage. Most of the people sitting round this table know fine well what happens, for example, when trees are being taken away. It starts about 4·00 am and by the afternoon it is nearly all over. Therefore, in those three days, all the damage can be done.

616.

Mr Maye: Issues have been raised this morning which we should take away and look at seriously. There is a germ of an idea in my head that we could reverse the presumption but build in a statutory defence which would enable a developer to do whatever was necessary to make the site safe, at the same time as complying with the notice. There is an issue there for us to look at, and we will do so.

617.

The Chairperson: That is exactly what we were saying at the previous meeting, and the Minister refers to that in his letter. He states:

"The Committee's view was that a Stop Notice should always have immediate effect unless there were specific reasons, i.e., health and safety, why it should not have immediate effect."

618.

That is really what we are talking about; but we need to get wording that reflects that position.

619.

Mrs Nelis: It has been mentioned that where very serious breaches of planning control occur, the Department has recourse to an injunction or restraining order from the courts. However, that is wide open to interpretation. What would constitute a serious breach of planning control? Why cannot that be dealt with under the stop notice rather than have to avail of the court's intervention? That point is not very clear. Secondly - and I understand the Department's protecting its back in respect of an appeal - it is possible that developers or landowners could simply remove the trees from the site before they even submit a planning application. Were that to be proven when their planning application is submitted, how would the Department propose that the planners should deal with that application? Would there be any sanctions on a developer where it is proven that he has cleared the site of the trees or whatever?

620.

Mr Maye: The reason we think it is necessary to have an express power to apply to the court for an injunction is that an injunction, by its very nature, brings very stiff penalties if it is not adhered to by the person against whom it is taken - much stiffer than the penalties that are available to the court or to the Department in relation to a stop notice.

621.

Last year, there was a case in which the Department was in the process of applying to the Attorney-General for an injunction against activity at Bishops Court racetrack. In that case, the bank intervened, took possession of the racetrack and sold it. The case illustrates that the Department is occasionally prepared to seek an injunction. In that case, the Department did not have to pursue it because the bank intervened and effectively took the decision out of its hands. An injunction brings stiff penalties, because if a person does not comply with its terms, he or she is in contempt of court. Therefore, the court can deal with that person in whatever way it likes. It brings with it the potential for a much stiffer penalty against developers and others.

622.

Mr Small: The Committee raised the point that the removal of trees on a development site should be made unlawful. The Department's view is that that would be most effective when an application has been made. The legislation could be framed so that when an application has been made and the development site is cleared, the removal of trees after that would be unlawful. That might be possible.

623.

However, the Department's point is that, potentially, there is an easy way around that for the developer. The trees could be removed before the site becomes the subject of an advocation, and becomes a development site. The only way to deal with that would be with some kind of blanket control, which the Department has discussed in the past. The Department is considering options that would allow the Minister to specify circumstances or categories of trees for which special protection would be possible. The Department is not yet sure whether that would address that kind of situation. However, it is seeking legal advice on how far it could apply such a power.

624.

Mrs Nelis: Unless the legislative framework indicates that the Department is prepared to deal strongly and seriously with developers who have cleared sites in advance of submitting planning applications, developers will continue to do so. I want to establish whether, if it were proven that a developer had been cute enough to clear a site and submit a planning application six months later, there is some mechanism that planners could use to deal with that.

625.

Mr Small: The Department's concern is how it could frame a provision that would have that effect. It has sought advice from its legal advisers on how that might be achieved, and on how it might operate.

626.

Mr Maye: The Department and the Minister are trying to find a compromise that does not necessarily affect all Northern Ireland but applies to those parts that have, for example, listed buildings or areas of townscape character. The Minister might want to add other categories, which will allow the Bill to provide the same protection for those areas as that which is provided for a conservation area. That would make life much easier for the Department and for the public, because it would mean that whole areas or the curtilage of listed buildings might be protected in the same way as conservation areas. The Department would be better able to decide which areas are worth protecting.

627.

At present that is a cumbersome process, because the Department must examine individual trees and stands of trees. It must ask arboriculturalists to prepare a report. It must also ask landscape architects to examine the amenity value of the stand of trees. If the Department can find a method that allows the Minister to protect trees by categorising areas, such as areas that surround listed buildings, and so on, I believe that that will go some way towards what the Committee wants to achieve.

628.

The Chairperson: You mentioned the curtilage of listed buildings. Can you explain what is meant by the Department's comments about clause 23, which deals with trees? There is

"currently nothing to prevent Department from putting a TPO on trees within the curtilage of a listed building. It is not possible to give automatic protection to trees within the curtilage of a listed building due to legal difficulties in defining what curtilage is."

629.

Mr Small: Legal advice has suggested that it would be difficult for the Department to define the curtilage of a listed building in statute. Although it is not impossible, the Department was advised against it.

630.

The Chairperson: The Department has said that there is nothing to prevent it from doing that. However, it goes on to say that it is not possible to give automatic protection.

631.

Mr Small: The Department can examine the grounds or curtilage of a listed building, and it can specify protection for individual trees. However, before universal, automatic protection to trees in the curtilage of a listed building can be provided, a statutory definition of curtilage must be developed, so that the blanket control can apply in every case. Legal advice suggests that that would be difficult.

632.

Mr Maye: The Department is trying to think of a way round that difficulty, so that it can provide protection within the curtilage of listed buildings by another means. It is exploring with its legal advisers possibilities that would avoid the need to define curtilage in law, which is the principal problem. If that can be achieved, the Department can develop proposals, which the Committee would welcome, and which would be relatively easy for the Department to implement.

633.

The Chairperson: Did you deal with Mr Ford's point?

634.

Mr Ford: No. Not yet.

635.

The Chairperson: When do you intend to do that?

636.

Mr Maye: We will come back for the next meeting.

637.

Mr Molloy: On some sites where there was a difficulty about removing trees, the contractors did not remove them, but they undermined them by cutting the roots, and the trees soon had to be removed. That sort of case demonstrates the need for legislation that requires individuals to seek permission before removing any trees. That should apply in the rural community or on any new development. A judgement can be made on each application, and, if the individual does not apply for permission, he or she will be acting illegally.

638.

Mr Maye: The Department does not want to make life hard for the farmers and individual householders who may be affected by that sort of blanket protection. The Department is trying to reach a compromise that allows it to protect trees that merit protection - for example, in areas of townscape character, such as a village of listed buildings - without applying blanket protection. Blanket protection brings with it regulation, and regulation brings with it a burden on individual householders and farmers, which the Department is keen to avoid.

639.

The administration of such a system would be a burden on the Department. It is keen to avoid creating difficulties for farmers, because that sort of blanket regulation would hit them hardest. However, householders would also be hit every time they wanted to crop or prune trees in their back gardens.

640.

The Chairperson: You said that the Department would consider its response to that point and to the previous point about stop notices, and it will try to find a solution.

641.

Mr Armstrong: The age of the tree must be considered, because if it were to die soon naturally, there is no onus on anyone to preserve it.

642.

The Chairperson: Is it not the case that a tree that is threatened with decay can be removed?

643.

Mr Small: Yes. There is a provision to deal with that.

644.

Mr Maye: It applies also to trees in conservation areas, or whatever areas the Department brings under control.

645.

The Chairperson: The Committee will move on to the next part of the presentation.

646.

Mr Lambe: I would like to go through the issues that were raised at our meeting two weeks ago. The first issue concerned the proposed power to allow the Planning Appeals Commission to dismiss appeals in cases of undue delay. The Committee asked whether the Department could obtain some figures on that from the other Administrations.

647.

I contacted colleagues in the Office of the Deputy Prime Minister and in the Scottish Office. They told me that the figures are not readily available. Their understanding from the Planning Inspectorate and the Scottish Reporters Unit is that the figures are so small that they are not recorded separately. It was a question of fractions of a percentage of the overall number of appeals.

648.

The cases are subsumed into the category of withdrawn appeals. Often the appellant withdraws the appeal, rather than have a dismissal of an appeal on his planning record. Often it is thought that having a dismissed appeal on the record will prejudice any future application or appeal. Is the Committee content with that information, or does it want further clarification from the other Administrations? I am happy to go back to them.

649.

Mr Small: The outcome of our discussions was that the power is very rarely used. Other Administrations do not consider it to be essential to business. That supports the views expressed by the chief commissioner of the Planning Appeals Commission. He said that he does not see the need for the provision, because he does not need that power. Discussions with colleagues in other jurisdictions seem to support that. Although the power exists in England, Wales and Scotland, it is not often used. Rather than make a provision in the Bill that may not be needed, the Department will take up the chief commissioner's suggestion and remove the clause, if the Committee is content.

650.

The Chairperson: The Committee will refer clause 19 for further consideration and take a look at the Department's response. If you have any further information on that, please let the Committee have it, because it is important.

651.

Mr Maye: The other side of the coin is that, although the power is rarely used, it is used in a small number of cases. The Committee might want to bear that in mind. The Bill would provide a discretionary power, which the Planning Appeals Commission could use if it sees fit. It is up to the Planning Appeals Commission to make that decision.

652.

The Chairperson: On the one hand, we can leave the provision in the Bill - just in case it is needed. On the other hand, the Planning Appeals Commission said that it was not necessary.

653.

Mr Maye: The Department is happy to do whatever the Committee thinks is most appropriate.

654.

The Chairperson: The Committee needs time to think about it before it makes a final decision. Members should examine the clause carefully and we would be grateful for further information.

655.

Mr Lambe: The second issue that was raised concerned the statutory definition of "curtilage". I obtained a copy of the legal advice that was given to the Department, which I can give to the Committee. Perhaps the Committee will want its own legal advisers to give a second opinion on it.

656.

The third issue concerned the building preservation notice that is known as "spot listing". The Department was asked who would determine cases of disputed claims for compensation. The matter would be dealt with in accordance with the way in which the Department deals with claims for compensation in relation to tree preservation orders, where it has refused consent to fell or remove a tree. Applicants would submit their claims for compensation, and the Department would assess them using the services of the Valuation and Lands Agency. If the Department cannot negotiate or arbitrate a dispute, the case would be referred to the Lands Tribunal, which would have a final say in the amount of compensation that would be payable.

657.

Another point was raised about tree preservation orders compensation. The query concerned the amount of money that had been submitted to the Department in relation to claims for compensation as a result of refusal of consent to fell trees. There are currently two cases, both of which are with the Lands Tribunal awaiting hearing. One involves a firm known as Russell Brothers and has a value of around £100,000 in relation to loss of development value of land. I do not have the name of the developer in the other case, but it involves Edenaclogh wood, and the claim is for £90,000, comprising £40,000 in relation to loss of timber value and £50,000 in relation to loss of development value of the site. Those are the only two claims with the Department in relation to compensation. In the past there have been large payments - in the Finnebrogue case it was £300,000. One of the proposals in the Bill is that we can specify in future tree preservation orders the limitations that there will be on compensation liability. For example, we can state that the development value of the land in question will not be open for negotiation in any compensation claims.

658.

Mr Molloy: It seems that if compensation can be paid to a developer who cannot develop a site because of a tree preservation order on it, a farmer or any individual who does not get planning permission for building a house on a farm should also be able to get compensation in that situation. Is that correct?

659.

Mr Maye: In certain circumstances compensation would be payable, but not in all circumstances.

660.

The Chairperson: What circumstances?

661.

Mr Maye: I can look into that and come back to you, but we have made some payments in those sorts of circumstances.

662.

The Chairperson: It is important for us to get those details.

663.

Mr Maye: To add a gloss to what Mr Lambe has said, I looked at one stand of trees recently in Belfast, which, in all respects, was worthy of protection, but the potential compensation value for loss of development was assessed by the Valuation and Lands Agency as being £17·5 million. If we can rule that out through the Bill, so that compensation is payable, we would have no hesitation in protecting such a stand of trees, but at the moment there is a difficult judgement to be made when sums of that nature have to be balanced as part of the equation.

664.

Mr Lambe: Another point was raised in relation to clause 27, which extends the Department's grant-aiding powers. The point was made that the clause as drafted would not appear to extend the power to provide grant aid for bodies such as Planning Aid. At the time we undertook to look at that further. Clause 27 extents an existing power to grant-aid certain bodies under article 120 of the Planning (Northern Ireland) Order 1991. The Department has existing powers under that article to grant-aid such bodies as Planning Aid, and that is the power that we are currently using. The purpose and intention of clause 27 was to regularise a position whereby the Department was making payments on an extra- statutory basis to bodies such as building preservation trusts. The opportunity was being taken to regularise the position by making those payments statutory. It would be a normal requirement from the Department of Finance and Personnel to regularise in statute the grant-aiding powers as soon as it is practicable to do so.

665.

The Chairperson: Under which article do grants, including grants to Planning Aid, come?

666.

Mr Lambe: They are currently covered under article 120 of the Planning (Northern Ireland) Order 1991, which is being amended by a provision in clause 27 of the Planning (Amendment) Bill, which is extending the grant-aiding powers of the Department.

667.

The Chairperson: But not removing the powers.

668.

Mr Lambe: No, it is simply adding to the grant- aiding powers.

669.

The final point was in relation to article 40 agreements. The Committee had some sympathy with Lisburn Borough Council, which, during the consultation return on the Bill, contended that it should have a greater role in drawing up article 40 agreements and, in particular, where an application for modification or discharge of part of the planning agreement had been submitted. Unfortunately, we are not yet in a position to get back to the Committee with a final answer. We will put papers to the Minister for a decision on that this week, and hope to return to the next Committee meeting with an answer.

670.

The Chairperson: Can you come back on clause 21 concerning advertisements?

671.

Mr Small: We have nothing specific. During our most recent presentation, we discussed the advertising provisions. The intention of the current provision in the Bill is to extend the definition of advertising. The Committee made comments about mobile advertisements on trailers, and how the Department dealt with that. We said that we were reviewing advertising, which is likely to result in either subordinate legislative change, or procedural change in the area of enforcement. It will not necessarily result in changes to primary legislation.

672.

The Chairperson: You say that it is "likely". That gives us no reassurance whatsoever. Is it coming in subordinate legislation?

673.

Mr Small: We cannot say, because we are in the middle of the work involved.

674.

The Chairperson: We were told that the Department was conducting a review of enforcing advertising control, which was possibly a matter for the next planning Bill.

675.

Mr Maye: If it would be helpful, I will bring the completed report to the Committee for consideration before decisions are taken on how to progress.

676.

The Chairperson: The Committee's question was: why not this Bill? We were told that this might be a matter for the next planning Bill, but only the Lord Himself knows when the next planning Bill will be. Surely now is the time to do something about this matter.

677.

Mr Maye: I will bring the report of the review to the Committee as soon as it is ready so that members can discuss it.

678.

The Chairperson: Have you anything further to add?

679.

Mr Small: I think we have covered all the issues that the Committee has raised.

680.

The Chairperson: We have a letter from Friends of the Earth on the subject of third-party appeals. We will let you have a copy of that. We wish Mr Small well in his new brief. Thank you.

Appendix 3

WRITTEN EVIDENCE AND CORRESPONDENCE
CONSIDERED BY THE COMMITTEE

WRITTEN EVIDENCE AND CORRESPONDENCE 
CONSIDERED BY THE COMMITTEE

Annex 1 - Letter dated 7 June 2001 from the Department of the Environment including - 
March 1999 Consultation Paper; and Summary Analysis of Consultation Responses.

Annex 2 - Letter dated 13 September 2001 from the Committee for the Environment.

Annex 3 - Letter dated 19 September 2001 from the Minister of the Environment.

Annex 4 - Letter dated 18 December 2001 from the Minister of the Environment including -
Planning (Amendment) Bill - Position Paper.

Annex 5 - Letter dated 12 February 2002 from the Department of the Environment including -
Memorandum to the Committee on Policy Proposals.

Annex 6 - Letter dated 22 February 2002 from the Committee for the Environment.

Annex 7 - Letter dated 17 April 2001 from the Minister of the Environment.

Annex 8 - Letter dated 26 April 2002 from the Committee for the Environment.

Annex 9 - Letter dated 30 April from the Department of the Environment including - Annex on Breach of Conditions Notice etc; and Copies of the responses to the Consultation Paper.

Annex 10 - Letter dated 23 May 2002 from the Department of the Environment including - Draft Planning (Amendment) Bill; Letter dated 21 May 2002 from the Department to the Secretary of State for Northern Ireland; and Draft Explanatory and Financial Memorandum.

Annex 11 - Letter dated 13 June 2002 from the Committee for the Environment to consultees.

Annex 12 - Hansard report of 24 June 2002: Second Stage Reading.

Annex 13 - Letter dated 24 June 2002 from the Minister of the Environment including - Three Policy Papers.

Annex 14 - Letter dated 24 June 2002 from the Department of the Environment including - Summary of QUB research findings on Third Party Appeals; and Summary of QUB research findings on the creation of a new offence for unauthorised development.

Annex 15 - Speaking Notes dated 4 July 2002 from Departmental Officials.

Annex 16 - Letter dated 9 July 2002 from the Committee for the Environment.

Annex 17 - Letter dated 24 July 2002 from the Department of the Environment including - Analysis of responses to Committee consultations; and The Department's consideration of the responses to its March 1999 consultation exercise.

Annex 18 - Presentation dated 5 September 2002 from Departmental Officials.

Annex 19 - Letter dated 11 September 2002 from the Department of the Environment.

Annex 20 - Letter dated 2 October 2002 from the Minister of the Environment.

Annex 21 - Letter dated 3 October 2002 from Friends of the Earth.

Annex 22 - Letter dated 9 October 2002 from the Minister of the Environment to the Secretary of State.

Annex 23 - Letter dated 10 October 2002 from the Minister of the Environment.

Annex 24 - Letter dated 10 October 2002 from Belfast Metropolitan Residents' Group.

ANNEX 1

LETTER FROM:
DEPARTMENT OF THE ENVIRONMENT

7 June 2001

You may remember that we discussed this at our meeting on 23 May and I indicated that the Department would like to deliver a presentation to the Environment Committee, before the summer recess, on the proposed Planning (Amendment) Bill, and the anticipated timetable for its introduction. At that stage we had provisionally considered the possibility of delivering a presentation at the Committee's meeting on 21 June. The purpose of the presentation, at this early stage, is to explain the background to, and provide a brief overview of, the proposals contained in the Bill.

In March 1999, the Department issued a consultation paper entitled "Proposals for Amendments to Planning Legislation in Northern Ireland" (copy attached). This followed the then Government's acceptance of recommendations by the Northern Ireland Affairs Committee, that Northern Ireland's planning legislation should be amended along the lines of the Planning and Compensation Act 1991 in the rest of the UK. A summary of the consultation responses is also attached for information.

The Bill contains a number of measures aimed at strengthening existing planning enforcement powers. These measures would also extend to Tree Preservation Orders, Listed Buildings and Buildings in a Conservation Area and to Hazardous Substances. Powers are also proposed to give primacy to Development Plans in the determination of planning applications, and to clarify the law in respect of demolition of buildings. Finally, it is proposed to introduce powers to provide the Planning Appeals Commission with greater flexibility in dealing with appeals, hearings and inquiries.

The proposed timetable for the Bill, which is still subject to Executive Committee approval, envisages the submission of a Policy Memorandum to the Executive in January 2002. Following the drafting of detailed instructions, the Bill would be introduced to the Assembly in early June, with the second stage debate being held in late June 2002. The Bill would then be passed to the Environment Committee for consideration in October 2002, with further consideration stage and final consideration stage taking place in January and February 2003 respectively. Finally, it is anticipated that Royal Assent could be obtained in April 2003, with the Bill coming into operation in July 2003.

While the proposed timetable is challenging, the Department is confident that it can be met. However, there is a risk if the provisions in the Bill are extended beyond the terms of the original consultation paper, it will necessitate a further round of public consultation, resulting in slippage of some 3 or 4 months in the proposed timetable. We would therefore be seeking the Committee's views on and support for the Bill's early introduction.

As our policy proposals develop, it is further intended that this presentation should be followed by more detailed presentations on the specific proposals contained in the Bill.

If anything should require clarification or if you should require any further information please do not hesitate to contact me.

LESLEY ROONEY
Assembly Liaison Officer

Proposals for Amendments to 
Planning Legislation in Northern Ireland

March 1999

Introduction

1.This paper invites comments on the government's proposals for amendments to planning legislation in Northern Ireland.

Background

2.In it's report on "The Planning System in Northern Ireland", the Northern Ireland Affairs Committee recommended that, as in GB, legislation should be introduced to strengthen existing enforcement powers and to give primacy to development plans in the determination of planning applications. The Government accepted these recommendations and is seeking to introduce this legislation at the earliest opportunity. An opportunity is also being taken to introduce some other provisions to strengthen and improve the planning system in Northern Ireland.

3. Annex A to this paper provides details of the proposals. Most of the proposals replicate provisions from existing statutes in England and Wales; these are contained in the following Acts:

• The Town and Country Planning Act 1990;
• The Planning (Listed Buildings and Conservation Areas) Act 1990;
• The Hazardous Substances Act 1990; and,
• The Planning and Compensation Act 1991.

4. The Government would welcome comments on the proposals set out in this paper.

These should be addressed to:

Mr D Small
Department of the Environment for Northern Ireland
Planning Service Headquarters
Clarence Court
10 - 18 Adelaide Street
Belfast
BT2 8GB
Tel: 028 9054 0832 Fax: 028 9054 0665

or, we can be contacted by email at: David.Small@doeni.gov.uk

to arrive no later than 30 November 2001.

Respondents should indicate if they wish their replies to be treated as "in confidence" to the Department of the Environment (the Department). If so they will not be published or made available to the media, but may be counted in any numerical summary of the views received, without specifically identifying the organisations or persons involved.

ANNEX A

Proposals in Detail

1. Enforcement

1.1 Contravention Notice

(a) The purpose of a contravention notice would be not only to strengthen the power to obtain information prior to taking enforcement action, but also to encourage dialogue with any persons thought to be in breach of planning control, and to secure their co-operation to take corrective action. A person on whom a notice is served may be provided with an opportunity to make representations about any suspected breach, make an offer to refrain from carrying out operations or activities, undertake remedial works or seek retrospective planning permission.

(b) It would be an offence, liable on summary conviction, to a fine not exceeding level 5 on the standard scale (currently £5,000) not to comply with a notice within 21 days of the time of its being served. Failure to comply with a notice could also affect any future entitlement to compensation payable in connection with stop notices (see paragraph 1.9). As information only is required, there would be no right of appeal.

1.2 Breach of Condition Notice

The purpose of a breach of condition notice would be to streamline the enforcement procedure for breaches of conditions attached to a planning permission. It may be served where there is clear evidence that a planning condition has not been observed and, if a notice is not complied with within a set time, it shall be an offence, liable on summary convection to a fine not exceeding level 3 on the standard scale (currently £1,000). As non-compliance with a condition is regarded as a straightforward matter, there would be no right of appeal.

1.3 Injunctions

It is proposed that the Department is given an express power to apply to the High Court for an injunction to prevent any actual or threatened breach of planning control. The Department can already seek an injunction, but it is granted only in exceptional circumstances, where other means have been exhausted and not normally for threatened breaches. This would integrate injunctions into the range of enforcement powers available to the Department and they may be used whether or not other enforcement powers have been used or are intended to be used. An injunction may be granted against "persons unknown" where the identity of a person cannot be ascertained.

1.4 Time Limits

(a) It is proposed to change the time limits for enforcement action in respect of a breach of planning control concerning a material change of use not involving a single dwelling house. Presently, enforcement action in such cases can only be taken where it can be shown that the breach occurred on or after 26 August 1974 - all such breaches before this date are immune from enforcement action.

(b) It is proposed that the cut-off date of 26 August 1974 should be abolished and replaced with a rolling 10-year qualifying period. This would mean that no enforcement action may be taken after the end of the period of 10 years beginning with the date of the breach.

(c) As a strengthening measure, it is also proposed that the period of 4 years, after which immunity is granted for a breach of condition of a planning permission not involving a change of use of any building to use as a single dwelling house, should be replaced with a rolling 10-year qualifying period. A breach of condition preventing change of use to use as a single dwelling house will retain the 4-year immunity period.

1.5 Enforcement Notice

It is intended to reduce the legal complexity of the provisions applying to the drafting, issue and service of enforcement notices, thus minimising the possibility of their being quashed because of some minor drafting error, or legal or technical deficiency. The provisions would provide the Department with flexibility to require only partial remedy of a breach of planning control where a total remedy is not considered necessary at the time of enforcement. The notice would still have to be sufficiently clear to enable any recipient to understand exactly what is alleged to have been done and what is required to remedy it. Provision is also to be made for the first time for the variation or withdrawal of a notice after it has come into effect, or for an extension of the period for complying with it.

1.6 Appeal against Enforcement Notice

(a) The grounds for appealing against an enforcement notice are to be clarified and extended to include the new immunity provisions described at paragraph 1.4. The time restrictions for making an appeal are also to be made more flexible. At present an appeal must be received by the Planning Appeals Commission before the specified date, resulting at times in disputes over postal delay - it is proposed that the time requirement will be satisfied if it can be shown that the application was properly posted to meet the deadline, and that any postal delay is outside the applicant's control.

(b) Currently, where the grounds for appeal are that planning permission ought to be granted, resulting in a deemed planning application being made, if no fee is attached to the application, permission is not granted, although the appeal may be upheld. This is to prevent a person from short cutting the normal planning application procedure and avoiding having to pay an application fee. However, this produces a stalemate in that the enforcement notice is quashed but there is no opportunity to regularise the development, possibly with conditions, thus making any further enforcement action futile. It is proposed that any appeal under this ground and the resulting deemed planning application will lapse if the proper fee is not paid within a specified time.

1.7 Execution of Works

The power of the Department to enter land and carry out works to ensure compliance with an Enforcement Notice is to be strengthened. Presently, the power does not extend to ensuring compliance with the terms of a planning permission, removing or alleviating any injury to amenity or to a discontinuance of use. It is proposed that these restrictions are removed. It is also proposed that it shall be an offence to wilfully obstruct anyone authorised to carry out works, punishable on summary conviction to a fine not exceeding level 3 on the standard scale (currently £1,000).

1.8 Offence for Non-Compliance with an Enforcement Notice

(a) It is intended to strengthen and clarify existing provisions concerning offences for not complying with an enforcement notice. Currently, it is the person who owned the land at the time an enforcement notice was served who is primarily responsible for complying with the notice; if that person has subsequently sold the land, he shall, on any complaint being made, be able to have the current owner brought before the courts to answer the complaint. This is cumbersome and it is proposed that the current owner of the land should have primary responsibility for complying with an enforcement notice, although a notice may also be served on anyone with control of, or an interest in the land, and it shall also be an offence for that person not to comply with its directions.

(b) To avoid the situation whereby a person is not deterred by the financial penalties imposed by the courts for breaching an enforcement notice, perhaps because of the level of profits involved in continuing with his actions, it is proposed to increase the maximum level of fine, on summary conviction, from £5,000 to £20,000, and to allow for the first time for this type of offence for a person to be convicted on indictment. The courts when determining the level of fine, shall in particular, have regard to any financial benefit which has accrued or appears likely to be accrued in consequence of the offence. It is also to be made clear that a person found guilty of an offence, and who continues not to comply with a notice, may be guilty of a further offence, and subsequently, of still further offences until there is compliance with a notice.

1.9 Stop Notices

(a) Provisions are to be introduced to strengthen and clarify existing stop notice provisions. The current situation whereby a stop notice cannot take effect until a least 3 days after it is served is unsatisfactory where urgent action is required. It is proposed that where there are urgent reasons, the stop notice may take effect within a period less than the normal 3 days.

(b) To fall in line with the increased penalties for contravening an enforcement notice, it is proposed that the maximum level of fine, on summary conviction, for contravening a stop notice shall be increased from £5,000 to £20,000, and to allow for the first time for this type of offence, for a person to be convicted on indictment. The courts shall take account of any benefits accrued or which appear likely to accrue as a result of the offence and it shall be made clear that further offences may be committed until there is compliance with a notice

(c) Although compensation may be payable in certain circumstances if a stop notice is quashed or withdrawn, it is intended that no compensation will be payable in respect of any loss or damage suffered, which could have been avoided if the person had provided information required under a contravention notice (see paragraph 1.1) or any other statutory information notice.

1.10 Lawful Use Certificate

(a) It is proposed to rectify the unsatisfactory situation whereby a development may be classified as "unlawful but immune". This happens when enforcement action cannot be taken against a breach of planning control because the time period for doing so has elapsed. The relevant period in cases of operational development is 4 years from the time action is being considered, and in cases of change of use not involving a single dwelling-house, the development is immune if it took place before the 26 August 1974. This state of "limbo" can lead to practical and legal difficulties.

(b) Under the new proposals a person would be able to apply to the Department for a lawful use certificate which would state that an existing use of buildings or other land, or operational development or some activity in breach of a planning condition is lawful, or would be lawful in the case of a proposed use or operational development. A certificate would be granted if no enforcement action could be taken either because no development was involved, or no planning permission was required, or the time for enforcement action had expired - this time would include the revised 4 and 10 year immunity periods described at paragraph 1.4.

(c) The onus for producing sufficient evidence to warrant the granting of a certificate would rest firmly on the applicant; there would be a right of appeal for a refusal; it would be an offence to provide misleading information knowingly or recklessly; and, the certificate would confer the same rights as a planning permission allowing a change from one use to another within any of the classes in the Use Classes Order. A charge would be raised for this service.

1.11 Rights of Entry for Enforcement Purposes

(a) It is proposed to strengthen existing rights of entry powers for enforcement purposes which, currently, can only be exercised when it is intended to issue an enforcement or stop notice. The power to enter may be exercised for investigative purposes connected with enforcement provisions; however, entry may only be gained if there are reasonable grounds.

(b) The purpose must be to ascertain if there has been any breach of planning control, or to determine if any enforcement action should be taken, how this power should be exercised or if there has been compliance with enforcement action already taken. In addition, it is proposed that a warrant may be issued by a Justice of the Peace to gain entry if admission is refused or is likely to be refused or in the case of urgency. It would be an offence to wilfully obstruct entry, liable on summary conviction, to a fine not exceeding level 3 on the standard scale (currently £1,000). Existing safeguards of being required to produce evidence of authority to enter the land and of being liable for compensation for damage caused, would remain.

2. Control Over Development

2.1 Planning Obligations

Planning obligations would replace planning agreements and, although their purpose would remain largely the same, i.e., to allow a developer to enter into an agreement with the Department to develop the land as part of a planning permission, their powers would be more widely drawn, thus placing less restrictions on their use. For example, an obligation may be used where a developer in seeking to overcome an objection to an application on nature conservation grounds, undertakes to establish on a different site, a nature reserve or other conservation benefits. Powers would also be introduced to allow a developer, after 5 years, to apply to the Department to have an obligation discharged or modified and to appeal on refusal to the Planning Appeals Commission. Like existing agreements, obligations would be enforced by the Department using statutory enforcement powers. The existing power to apply to the NI Lands Tribunal to have a planning agreement discharged or modified would not, therefore, apply to planning obligations.

2.2 Demolition of Buildings

It is proposed that demolition of buildings comes within the meaning of development for the purposes of requiring planning permission. The question of when demolition is to be regarded as development for planning purposes is complicated and has resulted in substantial case law. This has not, however, resolved the problem and the purpose of this provision is to make it clear that demolition is to be regarded as development with exceptions to be prescribed by development order. It is proposed that only those buildings whose demolition currently requires planning permission, i.e., listed buildings and buildings in a Conservation Area etc., should for the meantime be subject to the new regime.

2.3 Advertisements

It is proposed that the definition of "advertisement" is amended to make it clear that certain modern forms of outdoor advertising (e.g., rotating poster panels and advertisements on permanently fixed blinds or canopies on business premises) are within the definition and are thus subject to advertisement control.

2.4 Assessment of Environmental Effects

It is proposed to extend the scope of the existing requirement under EC Directive to make regulations which set out the classes of development for which an environmental assessment may be needed before a planning permission may be granted. Regulations to be made would go beyond the environmental assessment purposes required by the EC Directive. For example, in England and Wales, Regulations extended the classes of development for which an environmental assessment may be required, to include wind generators, motorway service areas and coast protection works.

2.5 Power to Decline to Determine Applications

It is intended to give the Department power to decline to determine a planning application if within the 2 years preceding the application, the Planning Appeals Commission had refused a similar application on appeal, and there has been no material change in circumstances. The purpose of this proposal is to prevent the use of 'repeat' applications as a tactic.

2.6 Dismissal of Appeal in Cases of Undue Delay

It is proposed to give the Planning Appeals Commission power to dismiss an appeal if it appears that an applicant is causing undue delay in progressing it. This is to prevent time wasting appeals and appeals lodged for tactical purposes.

3. Development Plans

3.1 It is proposed that development plans should be given prime importance in the determination of planning applications thus implementing the commitment given to the Northern Ireland Affairs Committee. Although this would give primacy to development plans when considering a planning application, it does not mean that the development plan must hold sway on every occasion. In a ruling given by the House of Lords in the case of City of Edinburgh v Secretary of State for Scotland (October 16, 1997), it was observed that the plan does not have absolute authority, that the planning authority is not required slavishly to adhere to the plan, and that it is at liberty to depart from it if material considerations indicate otherwise.

4. Tree Preservation Orders (TPOs)

4.1 It is proposed that the enforcement powers described earlier should apply as modified to provisions concerning the protection of trees. It is intended that the offence of contravening a TPO may be tried on indictment, that the maximum fine on summary conviction is raised to £20,000, and that courts, when determining the level of fine shall, in particular, have regard to any financial gain resulting or likely to result from the offence. Powers will be sought to allow the Department to seek an injunction to prevent any operation from continuing where an offence has been or may be committed; and to obtain a warrant from a Justice of the Peace to secure rights of entry onto land where permission has been refused, or in cases of urgency.

4.2It is also proposed to make it an automatic requirement, unless considered otherwise by the Department, to replace trees removed or destroyed which are under the protection of a TPO. At present, it is only a requirement to replace trees when it has been made a condition of a consent under a TPO. Enforcement notices may be served to ensure compliance with this requirement and there would be a right of appeal against such notice; the Department may also enter the land and execute any works not carried out and recover the costs from the owner of the land.

4.3 It is further proposed to afford the same protection to trees in a conservation area as is currently afforded to trees covered by a TPO. The Department may by Regulations provide for exceptions to this provision.

5. Listed Buildings and Buildings in a Conservation Area

5.1 It is proposed that the enforcement powers described earlier should apply as modified to listed buildings and buildings in a conservation area. The Department intends strengthening the penalties for altering or demolishing a protected building, and a person found guilty of such an offence would be liable on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding £20,000, or both; or on conviction on indictment to imprisonment for a term not exceeding 2 years or a fine, or both. In determining the level of fine the courts will take account of any financial benefits accrued or likely to accrue as a consequence of the offence. A person may be charged with subsequent offences until there is compliance with a notice.

5.2 It is proposed to waive or relax the requirements of an enforcement notice, extend the time for complying with it or to withdraw it after it has taken effect; to include in the criteria for appealing against a decision not to grant listed building consent or a listed building enforcement notice, the ground that the building is not of special architectural or historic interest; to make it an offence to wilfully obstruct an authorised person executing works to secure enforcement; to seek an injunction to prevent any operation where an offence has been or may be committed; and to obtain a warrant from a Justice of the Peace to secure rights of entry onto land where admission has been refused, or in cases of urgency.

5.3 It is also proposed to introduce powers similar to those in England and Wales for temporary listing of buildings. This would enable the Department to serve a building preservation notice on a building of special architectural or historic interest and which is under threat of demolition or alteration; the notice would have immediate effect and would offer the same protection as if the building were listed. The notice would have to be confirmed or withdrawn within 6 months, and if not confirmed, then compensation could be payable.

6. Hazardous Substances

6.1 It is proposed that the enforcement powers described earlier should apply as modified to the provisions controlling hazardous substances. These include powers to strengthen the penalties for contravening hazardous substances control provisions by providing for conviction on indictment, and to increase the maximum fine on summary conviction to £20,000. When determining the level of fine, the courts shall have regard to any financial benefits accrued or likely to accrue as a consequence of the offence.

6.2 The maximum fine for not complying with an enforcement notice connected with hazardous substances is also to be increased to £20,000 on summary conviction and provision will be made for conviction on indictment followed by a fine. In both instances, the courts shall, when determining the level of fine, have regard to any financial benefits accrued or likely to accrue as a consequence of the offence, and a person may be charged with subsequent offences until there is compliance with a notice.

6.3 It is also proposed to waive or relax the requirements of an enforcement notice, extend the time for complying with it or to withdraw it after it has taken effect; to make it an offence to wilfully obstruct an authorised person executing works to secure enforcement; to seek an injunction to prevent any operation where an offence has been or may be committed; and to obtain a warrant from a Justice of the Peace to secure rights of entry onto land where admission has been refused, or in cases of urgency. As some of the relevant enforcement provisions governing hazardous substances are provided for in the Planning (Hazardous Substances) Regulations (NI) 1993, and not in primary legislation, some of the proposals referred to above will be made by amendments to these Regulations.

7. The Planning Appeals Commission

7.1 The Planning Appeals Commission is an independent appeals body established under statute to decide a wide range of appeals and to report to the Department on various inquiries under planning and other legislation. The most senior Commissioners also make up the Water Appeals Commission. Commissioners are appointed by the First Minister/Deputy First Minister. All cases referred to the Commission must be determined by the Commission as a corporate body - this can be achieved by a quorum made up of half the Commission plus one, although all Commissioners have a statutory right to sit in on all cases.

7.2 The system described above is seen as overly bureaucratic and inflexible, leading to delays in getting onto the public inquiry programme and increased reporting times once an inquiry has been completed. Measures are proposed to provide the Commission with greater flexibility without eroding its independence or weakening its expertise.

7.3 It is proposed that:-

• the Planning Appeals Commission and Water Appeals Commission are combined, thus allowing other members of the Commission to undertake water appeals work;
• for appeal work only, decisions are to be made collectively; this would allow a minimum of 4 Commissioners to make decisions as opposed to the present requirements of half the Commission plus one, thus freeing Commissioners to deal with other casework;
• individual Commissioners hearing inquiries are to be allowed to report direct to the Department without obtaining a corporate view from the Commission; this would not prevent a Commissioner from seeking the view of colleagues, especially in the more complex cases, but it would no longer be a statutory requirement;

A "call off" panel of Commissioners is to be appointed to assist the Commission as and when required; they would be appointed for periods of 3- 5 years and would only be used at the discretion of the Chief Commissioner. Appointees would not receive a salary nor a retaining fee, but would be paid only for work carried out. This would allow the Chief Commissioner to expand the expertise of the Commission, and enhance his ability to deal with fluctuating workloads without having to increase the full-time complement of the Commission.

PROPOSED AMENDMENTS TO PLANNING LEGISLATION

ANALYSIS OF RESPONSES TO DISCUSSION/CONSULTATION DOCUMENT march 1999

ANNEX 2

LETTER FROM:
COMMITTEE FOR THE ENVIRONMENT

13 September 2001

Planning Amendment Bill

Officials from the Department were due to return to the Committee on 20 September 2001 in order to respond to the issues raised at the Committee meeting on 28 June 2001. Unfortunately, it has been necessary to defer this presentation for the immediate future.

In order to ensure that this matter continues to receive the attention it deserves, the Committee has asked for a comprehensive, written update on all of the relevant issues for discussion at its meeting on 20 September 2001. As you know, I forwarded a list of these to you on 6 September 2001 and spoke to David Small, Planning Service, last week about these.

Please contact me if you have any queries about this.

JIM BEATTY

Issues arising from Planning Amendment
Bill Dept Presentation - 28 June 2001

Demolition of existing building considered as development.

Level of fines - £20k too low in many cases. Leave to Court to determine or have two-prong approach with higher fixed fines and open fines for certain offences, eg, TPO's

What of injunction procedures?

PAC provisions will only deal with mechanics of making decision.
Costs of processes not known yet but soon will.

Disappointed at timescales - July 2003 unacceptable - esp for TPO's, emergency Orders etc.
Dept looking at other possibilities.

3^rd Party Appeals.

Replacement trees - same type with same protection.

Deliberate misleading information in planning applications - considering.

When illegal to build without permission?

Elevated power of Councils - elected representatives.

ANNEX 3

LETTER FROM:
THE MINISTER
DEPARTMENT OF THE ENVIRONMENT

19 September 2001

In its recent 13 September 2001 letter, the Committee sought a position paper from the Department on the Planning (Amendment) Bill. The Committee's letter indicated that the position paper should provide a comprehensive update on relevant issues. I thought it would be helpful if I let you have some observations from a Ministerial perspective.

I attach a position paper as requested. This provides an update on all of the current proposals for the Planning (Amendment) Bill and addresses specific issues raised by the Committee.

I have carefully considered all of the issues raised by the Committee. I believe that the provisions now proposed for inclusion in the Bill will provide the Department with important and extensive new powers. These will enable the Department to control development more effectively and provide greater protection to the built heritage and to trees. In addition, the new provisions relating to enforcement will enable the Department to take effective enforcement action more quickly. I believe that there is a substantial consensus in favour of these reform, and there would be widespread disappointment if, after extensive consultation, we did not continue to make progress on them. I hope that I and the Committee have a shared interest in making that progress.

I have carefully considered the Committee's interest in third party appeals and in development commenced in advance of planning permission. I fully appreciate the Committee's concerns about these matters and can assure you that both issues have been examined thoroughly by the Department. Although at this time, to ensure that the legislative programme for the Planning (Amendment) Bill will be achieved, I do not believe that it will be possible to include provisions within the current Bill, my Department will continue to review policy in these two important areas, taking account of the Committee's interest and concern. Full details of the Department's consideration of these issues are included in the attached paper. As you will see, both matters raise difficult policy and operational issues which would require extensive and time-consuming consultation with a wide range of interests, some outside the Executive. This would have major, and I contend unacceptable, implications for the timetable of this particular Bill and the important reforms and improvements it will introduce.

I know that the Committee has previously expressed concerns about the legislative timetable and, in particular, that the new legislation will not be operational until 2003. I fully share the Committee's concerns, but am satisfied that the current timetable is challenging and cannot be brought forward. Before the Bill can be introduced to the Assembly, further consultation will be required with the Human Rights Commission, the Equality Commission and the Civic Forum, since these bodies were not in existence when public consultation on the proposed Bill took place in 1999. Policy proposals will then have to be agreed with the Executive Committee and, following this, detailed instructions will have to be prepared and submitted to the Office of the Legislative Counsel. When a draft Bill has been prepared, it will then be necessary to obtain further Executive Committee agreement before the Bill is introduced.

I am, however, determined that the Bill will be introduced to the Assembly, as proposed, in June 2002. It is for this reason that I believe we have a shared interest in having no further proposals introduced into this Bill at this stage.

I hope the attached paper provides the Committee with the update it requires and addresses the Committee's various concerns about this particular Bill.

SAM FOSTER MLA
Minister of the Environment

ANNEX 4

LETTER FROM:
THE MINSITER
DEPARTMENT OF THE ENVIRONMENT

18 December 2001

As you will be aware, my planning officials have made a number of appearances before the Committee on the content of the forthcoming Planning (Amendment) Bill. At the most recent appearance, on 20 September 2001, you indicated that the Committee might wish to receive a further presentation by officials, later in the year. To date, however, the Committee has not pursued the matter.

The legislative programme for the Bill requires a Policy Memorandum to be submitted to the Executive Committee in January 2002, with a view to presenting a draft Bill to the Assembly before the summer 2002 recess. My purpose in writing to you, therefore, is to explain that it has been necessary to proceed with the submission of the Policy Memorandum and to confirm that I have now written to my Executive Committee colleagues as part of that process. I wish to thank the Committee for its contribution during the consultations and meetings that have taken place. I believe this was a worthwhile and helpful process. The Committee will, of course, have further opportunities to discuss the Bill at later stages in the legislative process.

Finally, you will recall that the Committee expressed views on the issues of third party appeals and the need for legislative change to make it an offence to commence development without planning permission. Although I explained that it would not be possible to include provisions in the current Bill, you will wish to note that my officials are continuing to examine both issues and that the Committee's comments will be carefully considered as this work is progressed.

SAM FOSTER MLA
Minister of the Environment

ANNEX 5

LETTER FROM:
DEPARTMENT OF THE ENVIRONMENT

12 February 2002

RE: PLANNING (AMENDMENT) BILL - POLICY MEMORANDUM

Thank you for your 8 February 2002 letter on the above.

As requested, I enclose for your information a detailed Memorandum to the Committee on the policy proposals put to the Executive Committee.

Officials will, of course, be happy to attend the 21 February 2002 meeting, to discuss further the content and anticipated progress of the Bill. As you may know, the Department is proposing accelerating the timetable for the Bill, with a view to completing all the Assembly stages by January 2003 so that Royal Assent can be obtained prior to the Assembly being dissolved in March 2003. The meeting will also allow officials to update the Committee on the new provisions included in the Bill, since the last meeting with the Committee, in response to the Committee's concerns about the demolition of buildings.

JENNIFER McCAY
(Acting Assembly Liaison Officer)

PLANNING (AMENDMENT) BILL:
MEMORANDUM TO THE ENVIRONMENT COMMITTEE
ON THE POLICY PROPOSALS PUT TO THE EXECUTIVE COMMITTEE

Introduction

1. This Memorandum outlines the background to the need for the Planning (Amendment) Bill and the policy objectives it aims to address. It discusses the consultative process undertaken, the cost implications of the Bill and its impact on equality of opportunity and human rights issues. It also addresses North/South relations and EU issues. A Policy Memorandum in these terms has been put to the Executive Committee under the Written Procedure, and the Department is awaiting Executive Committee approval to proceed to draft the Bill.

Background and Policy Objectives

2. Prior to devolution, the Department published a consultation paper entitled "Proposals for Amendments to Planning Legislation in Northern Ireland". The paper proposed introducing legislation to strengthen and enhance the Department's existing planning enforcement powers and to give primacy to development plans in the determination of planning applications. Since devolution, the Department has carefully reviewed and considered the issues involved and remains of the view that such legislative change is still appropriate and necessary.

3. The proposed Bill will:

(i) Simplify, streamline and strengthen the Department's existing enforcement powers and introduce some new enforcement powers. These include

• planning contravention notices;

• breach of condition notices;

• express power to apply to the court for an injunction to prevent a threatened breach of planning control.

The new powers, suitably modified, will extend to Tree Preservation Orders, Listed Buildings, buildings in Conservation Areas and Hazardous Substances. In addition new measures are proposed to afford greater protection to trees.

(ii) Improve control over development by the introduction of the following measures: -

• planning obligations;

• Building Preservation Notices to enable the Department to respond quickly to protect buildings at risk;

• funding, in certain circumstances, for Building Preservation Trusts to enable the acquisition of buildings considered to be at risk;

• extension of controls over the demolition of buildings to Areas of Townscape Character;

• broadening the definition of "advertisement" to ensure that modern forms of outdoor advertising are subject to advertisement control;

• introduce a regulation making power to allow the scope of environmental assessment under EC Directive Reference 85/337/EEC to go beyond the EC minimum requirements;

• empowering the Department to decline to determine applications if, within the preceding 2 years, a similar proposal had been dismissed on appeal by the Planning Appeals Commission;

• empowering the Planning Appeals Commission to dismiss an appeal if it appears that the appellant is causing undue delay.

(iii) Give prime importance to Development Plans in the determination of planning applications; and

(iv) following consultation with OFMDFM, provide the Planning Appeals Commission with greater flexibility without eroding its independence or weakening its expertise.

An overview of the proposed provisions is set out in Annex A attached to this Memorandum.

Options Considered

4. The proposals were drawn up prior to devolution in response to a request from the House of Commons Northern Ireland Affairs Committee that the Department replicate the new provisions introduced in GB by the Planning and Compensation Act 1991. These proposals largely meet that request.

5. In addition to largely meeting the requirements of the Northern Ireland Affairs Committee, the Department also took the opportunity to look at other provisions to strengthen and improve the planning system in Northern Ireland. These included control over the demolition of buildings in Areas of Townscape Character, the introduction of Building Preservation Notices, a power to fund Building Preservation Trusts and, reforms to the way in which the Planning Appeals Commission operates. Further details of these are set out in Annex A.

Consultation

6. In March 1999, the Department issued a Consultation Paper entitled "Proposals for Amendments to Planning Legislation in Northern Ireland". The paper provided details of all the issues involved, as summarised in Section 3 above, and was given wide circulation to local authorities, environmental groups, professional bodies, government departments and agencies, academics, residents' groups, businesses and others. A total of 55 responses were received and considered resulting in some minor amendments.

7. In accordance with the requirement for consultation with the Northern Ireland Human Rights Commission, Civic Forum and Equality Commission which did not exist when the 1999 consultation took place, these statutory consultees were consulted on the proposals in October 2001. The closing date for replies was 30 November 2001 and no comments were received.

8. On a number of occasions throughout 2001, officials appeared before the Environment Committee to explain the content of the proposed Bill. While the Committee was broadly content with the measures contained in the Bill, it expressed concern at the absence of any firm proposals regarding criminalising breaches of planning control or the introduction of third party rights of appeal. Officials explained that these two issues raised fundamental questions about the way the current planning process operates, had potential resource implications for the Department, and would require careful consideration, including full public consultation. The Department accepted, however, that it should continue to consider both issues, in consultation with the Committee, and in the context of a future planning Bill.

9. In advance of proceeding with Written Procedure, the views of other Ministers were sought on the content of the Bill. While there was general support for the proposals, some minor points of concern were expressed about the detail which, it was suggested, could be taken forward by officials when draft instructions are being finalised.

Financial Effects of the Bill

10. Although not considered to be significant, it is likely that there will be some financial implications for the Department in introducing the main provisions in the Bill. Particularly, in respect of the new enforcement powers being taken such as Contravention Notices, Breach of Condition Notices, extending the Tree Preservation Order provisions to Conservation Areas and the new provisions in relation to the control of demolition in Areas of Townscape Character (ATCs). However, the abolition of the August 1974 cut off date for enforcement action against certain breaches of planning control and the reduction in the legal complexity of the provisions that apply to the drafting, issue and service of Enforcement Notices are considered to offset these additional costs. Whilst the precise implications are extremely difficult to quantify, the Department believes that the financial implications will be marginal.

11. DFP approval has been sought to include a provision whereby the Department could impose a Temporary Building Preservation Notice on a building threatened with demolition. Under the proposal, the Department would have 6 months from the date the Notice was served within which to either confirm or withdraw the Notice. If the Notice was subsequently withdrawn, the Department may be liable for a claim for compensation. DFP comments are awaited.

12. On balance, the additional costs to the Department associated with the legislation are expected to be minimal and manageable within existing resources.

13. In addition, while the proposed changes to the way in which the Planning Appeals Commission reports to the Department on hearings and inquiries will have no significant cost implications, the changes should help to speed up the overall response time in determining major applications.

Regulatory Impact Assessment

14. DETI has advised that, as the Bill will have no direct impact on employment and is unlikely to result in extra costs to business, a Regulatory Impact Assessment is not required.

Equal Opportunities

15. An Equality Impact Assessment was not considered necessary as screening was carried out, see Annex B attached to this memorandum. The screening analysis in Section 2.0 of the attached document shows that the proposals contained in this Bill raise no implications for equality of opportunity or community relations.

Human Rights Issues

16. The proposed Bill is considered to be fully compatible with Human Rights legislation, and we are seeking legal confirmation of this prior to submitting the draft Bill to the Assembly. The Human Rights Commission was consulted as part of the evaluation process and offered no comments.

Impact on new Targeting Social Need

17. The proposed legislation will have no impact on New Targeting Social Need.

Impact on Relations, Co-operation or Common Action on a North/South or East/West basis

18. The planning process in the Republic of Ireland is quite different from the Northern Ireland planning process. While the Northern Ireland process accommodates public participation in the preparation of development plans and planning policies, this is not a feature of the Republic of Ireland process where public input is through an appeals mechanism and the process is back loaded in this respect. In relation to east/west issues, the proposed Bill corresponds closely to the Planning and Compensation Act 1991. It is unlikely, therefore, that the Bill will have any impact on relations, co-operation or common action on a North/South or East/West basis.

EU Implications

19. Northern Ireland's obligations in relation to the EC Directive Reference 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, which came into effect in July 1988, have been implemented by regulations made under the European Communities Act 1972. However, under this Act, the Department is limited to making regulations "for the purpose of implementing any community obligation of the United Kingdom, or enabling any such obligation to be implemented".

20. This Bill will introduce a regulation making power to allow the scope of the environmental assessments under EC Directive Reference 85/337/EEC to go beyond EC minimum requirements to cover projects that are demonstrably likely to have significant environmental effects.

Creation of Offences

21. The Bill will make provision for new offences, the creation of which is a reserved matter. The consent of the Secretary of State under section 10(3)(b) of the Northern Ireland Act 1998 will be required.

ANNEX A

Planning (Amendment) Bill 2002 - Proposed content

Enforcement - General

A number of measures are planned to simplify, streamline and strengthen the Department's existing enforcement powers. It is also proposed that the Bill will introduce some entirely new enforcement powers such as Contravention Notices, Breach of Condition Notices and an express power to apply to the Court for an injunction to prevent a threatened breach of planning control. With certain modifications these new powers will also apply to Tree Preservation Orders (TPOs), Listed Buildings and buildings in Conservation Areas and Hazardous Substances.

Contravention Notice

The purpose of a Contravention Notice is not only to strengthen the power to obtain information prior to taking enforcement action, but also to encourage dialogue with any persons thought to be in breach of planning control and to secure their co-operation in taking corrective action.

Breach of Condition Notice

The purpose of a Breach of Condition Notice is to streamline enforcement procedures for breaches of conditions attached to a planning permission. The new provisions will allow a Breach of Condition Notice to be served if there is clear evidence that a planning condition has not been complied with.

Injunction

It is proposed to give the Department an express power to apply to the High Court for an injunction to prevent any actual or threatened breach of planning control. The intention is to integrate injunctions into the range of enforcement powers available to the Department so that they may be used whether or not other enforcement powers have been, or are intended to be, used. An injunction may be granted against 'persons unknown' if the identity of a person cannot be ascertained.

Time limit

It is proposed to abolish the cut-off date of 26 August 1974 for enforcement action against certain breaches of planning control. Immunity from enforcement action would instead be granted if it could be shown that the breach had occurred more than 10 years earlier.

Enforcement Notice

It is intended to reduce the legal complexity of the provisions that apply to the drafting, issue and service of Enforcement Notices, thereby minimising the possibility of some minor drafting error, legal or technical deficiency resulting in a notice being quashed.

Execution of Works

The power of the Department to enter land and carry out works to ensure compliance with an Enforcement Notice is to be strengthened.

Offence for non-compliance with an Enforcement Notice

It is intended to strengthen and clarify existing provisions concerning offences for not complying with an Enforcement Notice.

To avoid the situation whereby a person is not deterred by the financial penalties imposed by the Courts for breaching an Enforcement Notice, perhaps because of the level of profits involved in continuing with his actions, it is proposed to increase the maximum level of fine, on summary conviction, from £5,000 to £20,000 and to allow, for the first time in Northern Ireland, for a person to be convicted on indictment for this type of offence. In such cases there would be no limit to the level of fine which the Courts could impose.

Stop Notices

To strengthen and clarify the current Stop Notice provision that a Stop Notice cannot take effect until at least 3 days after it is served, it is proposed that when urgent action is required, a Stop Notice will be able to take effect within a shorter period.

Lawful Use Certificate

It is proposed to abolish the unsatisfactory situation whereby a development may be 'unlawful' but 'immune' from enforcement action because the time period for taking such action has elapsed.

New Measures for the Protection of Trees

The Bill proposes a major overhaul of the Department's powers in respect of the protection of trees and TPOs. There will be an extended definition of the scope of a TPO to allow enforcement action to be taken not only against those persons who breach a TPO but also against those who cause or permit a breach to take place. New powers will be taken to make it an automatic requirement to replace trees subject to a TPO; to prevent the removal of trees in Conservation Areas and to take out an injunction to prevent threatened breaches of a TPO. Higher penalties for those breaching a TPO will also be introduced.

Control of Development

Planning Obligations

It is proposed to amend current provisions relating to the use of Planning Agreements. The main purpose of the change is to broaden the application of Planning Agreements, to remove the scope for interpretation by the Courts, and to introduce provisions relating to the modification or discharge of an Agreement.

Building Preservation Notices

The use of Building Preservation Notices, commonly referred to as 'spot-listing', is a fast track method of listing historic buildings. It is proposed that the Bill will introduce Building Preservation Notices thereby increasing the Department's ability to respond quickly to protect buildings at risk.

Building Preservation Trusts

It is proposed to give the Department powers to enable it to fund Building Preservation Trusts, in circumstances where such funding would not necessarily be confined to grant eligible work, for example, the acquisition of buildings considered to be at risk.

Demolition of Buildings

It is proposed to introduce a technical amendment to clarify the law so as to make it clear that demolition should come within the meaning of development for planning purposes. A number of options were examined in respect of how broadly the new control should be applied ranging from all buildings province-wide, to dwelling houses only in discreet areas. However, so as not to clog up the planning system with hundreds of applications for the demolition of relatively minor structures, it is proposed for the time being, in addition to those buildings whose demolition is already subject to planning control i.e., listed buildings, buildings in a Conservation Area etc., that the new control over demolition should be extended to all buildings in Areas of Townscape Character. The opportunity is being taken however to introduce a regulatory framework whereby the Department can react more quickly to changing circumstances in the future and, if necessary, extend control over demolition to a variety of classes of buildings.

Advertisements

To ensure that certain modern forms of outdoor advertising are subject to advertisement control, it is intended to broaden the definition of 'advertisement' to include matters such as rotating poster panels, advertisements on permanently fixed blinds or canopies on business premises etc.

Assessment of Environmental Effects

Under the existing EC Directive Reference 85/337/EEC, which came into effect in July 1988, there is a requirement to make regulations that set out the classes of development for which an environmental assessment may be required. The Directive was implemented in the UK by regulations made under the European Communities Act 1972. However, under this Act, the Department is limited to making regulations "for the purpose of implementing any community obligation of the United Kingdom, or enabling any such obligation to be implemented".

It is proposed to take an enabling power to allow the scope of environmental assessment required under EC Directive Reference 85/337/EEC to go beyond the EC minimum requirements to cover projects which are demonstrably likely to have significant environmental effects. The taking of this power is in line with that already enacted in GB by S71A of the Town and Country Planning Act 1990 as inserted by S15 of the Planning and Compensation Act 1991.

Power to Decline to Determine Applications

To prevent the use of 'repeat applications' as a tactic by developers, it is intended to give the Department the power to decline to determine a planning application if, within the preceding 2 years, the Planning Appeals Commission had dismissed an appeal for a similar proposal and there had been no material change in circumstances.

Dismissal of Appeal in Cases of Undue Delay

To prevent time wasting appeals and appeals lodged for tactical purposes, it is intended to give the Planning Appeals Commission the power to dismiss an appeal if it appears that the appellant is causing undue delay in its progress.

Development Plans

Primacy of Development Plans

The proposed Bill will include provisions to give development plans prime importance in the determination of planning applications.

Planning Appeals Commission

The Department consulted on a number of proposed changes to the Planning Appeals Commission in the 1999 consultation paper, namely: -

(a) The Planning Appeals Commission and Water Appeals Commission are combined, thus allowing other members of the Commission to undertake water appeals work.

(b) For appeal work only, decisions to be made collectively; this would allow a minimum of 2 or 3 Commissioners to make decisions as opposed to the present requirement of half the Commission plus one, thus freeing Commissioners to deal with other casework.

(c) Individual Commissioners hearing inquiries to be allowed to report directly to the Department without obtaining a corporate view from the Commission; this would not prevent a Commissioner from seeking the view of colleagues, especially in the more complex cases, but it would no longer be a statutory requirement;

(d) A "call off" panel of Commissioners for public inquiry purposes only to be appointed to assist the Commission as and when required; they would be appointed for periods of 3-5 years and would only be used at the discretion of the Chief Commissioner. Appointees would not receive a salary nor a retaining fee, but would be paid only for work carried out. This would allow the Chief Commissioner to expand the expertise of the Commission, and enhance his ability to deal with fluctuating workloads without having to increase the full-time complement of the Commission.

Following consideration of the Consultation responses and discussions with OFMDFM, (which assumed sponsorship responsibility for the Planning Appeals Commission in June 2001), the Department has agreed to include the following provisions in relation to the Planning Appeals Commission:-

(a) provisions to combine the Planning Appeals Commission (PAC) and Water Appeals Commission (WAC) into a single body with a new name - the Environmental Appeals Commission. This new name is proposed to reflect the now broader role of the PAC in environmental matters;

(b) provisions to enable the new body to make decisions on planning appeals collectively (a minimum of 4 members) rather than corporately;

(c) provisions to enable the new body to make, at the discretion of the Chief Commissioner, either collective or individual Commissioner recommendations to the Department in respect of hearings and inquiries;

(d) on the basis of legal advice that a call off panel of Commissioners can be appointed under existing powers, no legislative change is required to appoint call-off panels. However, a statutory provision is required to demonstrate that the functions of 'Panel Commissioners' differ from those of existing Commissioners. This will allow the Chief Commissioner greater flexibility in the day to day allocation of casework; and

(e) specify the post of Deputy Chief Commissioner in order to enable Section 18 of the Interpretation Act (Northern Ireland) 1954 to take effect. This will provide the Chief Commissioner with a power to designate either a Deputy or Acting Chief Commissioner in his/her absence.

ANNEX B

NORTHERN IRELAND ACT 1998 (SECTION 75)
STATUTORY EQUALITY OBLIGATIONS S

SCREENING FOR EQUALITY IMPACT ASSESSMENT

1.0 General Details

1.1 Title of policy/policy document/Regulations and date to be introduced

The Planning (Amendment) Order 2002. It is anticipated that the Order will receive Royal Assent in April 2003 and come into operation in July 2003.

1.2 Brief summary of the Policy and background to the Order

This Order is being introduced to meet the request of the Northern Ireland Affairs Committee that the Department replicate the new provisions introduced in GB by the Planning and Compensation Act 1991. The purpose of these provisions is to streamline and strengthen existing planning enforcement powers and give primacy to development plans in the determination of planning applications.

1.3 Aims of the policy/policy document/Regulations

These new enforcement measures will make it easier for the Department to take action against unauthorised development and, with certain modifications, will also apply to Listed Buildings, buildings in Conservation Areas and Hazardous Substances.

To provide improved control over development, primacy is being given to development plans in the determination of planning applications. In addition, measures are included to broaden the scope of Planning Agreements and to bring demolition within the meaning of development.

New and enhanced powers to afford greater protection to trees, including new enforcement powers enabling the Department to deal more effectively with breaches of Tree Preservation Orders, are also included

The final aim includes measures to provide greater flexibility for the Planning Appeals Commission. These measures are the combination of the Planning and Water Appeals Commissions, the new Commission being given the authority to make decisions on a collective rather than a corporate basis and individual Commissioners being authorised, in certain cases, to report their findings on hearings directly to the Department.

2.0 Screening Analysis

Screening aims to identify those proposals, which are likely to have the greatest impact on equality of opportunity and community relations. This is assessed against the nine categories listed below:

(1) Persons of different religious beliefs

(2) Persons of different political opinions

(3) Persons of different racial groups

(4) Persons of different ages

(5) Persons of different marital status

(6) Persons of different sexual orientation

(7) Men and Women generally

(8) Persons with a disability and persons without

(9) Persons with dependants and persons without

2.1 Is there any evidence of higher or lower participation or uptake by different groups within any of the nine categories?

There is no evidence that there would be a higher or lower participation or uptake by different groups within any of the 9 categories.

2.2 Is there any evidence that particular groups have different needs, experiences, issues and priorities in relation to the particular main policy area?

2.3 Is there an opportunity to better promote equality of opportunity or good relations by altering policy or working with others in Government or the community at large?

2.4 Have consultations in the past with relevant groups, organisations or individuals indicated that particular policies create problems which are specific to them?

3.0 Impact Assessment Decision

3.1The amendment of the legislation to streamline and strengthen existing planning enforcement powers and to give primacy to development plans in the determination of planning applications is not considered likely to have significant implications for equality of opportunity or community relations.

3.2 Do you consider, taking account of the Screening Analysis in Section 2.0 that this policy/policy document needs to be submitted to a full equality impact assessment?

Reason for Decision

As a result of the screening analysis in Section 2.0 it is considered that there are no equality of opportunity or community relations implications as a result of the changes to the legislation.

ANNEX 6

LETTER FROM:
COMMITTEE FOR THE ENVIRONMENT

22 February 2002

2.1 Planning Issues

The Committee received presentations from Department Officials at yesterday's meeting on the proposals for the forthcoming Planning (Amendment) Bill and the launch of the consultation exercise on Modernising Planning Processes. Both presentations were well received by the Committee and Members considered the subsequent discussions to be both interesting and informative.

It was agreed with the Officials that the Committee would forward some further questions and comments for their consideration.

2.2 Planning (Amendment) Bill

The Committee generally welcomed the fact that so many of the concerns that it had identified are being taken forward within the proposals, for example, spot listing, and looks forward to the Department returning for further consultation on a number of issues discussed, as agreed.

The Committee was particularly pleased with the contention that a "culture change" will be brought about within the Department to ensure that action is taken to enforce the new measures, especially in a readiness to refer cases much more frequently to the higher Courts, where unlimited fines may be imposed.

As you know, the Committee has consistently wanted to see some form of action taken against those developers who commence development before planning permission is given and although the Officials did refer to this in their presentation, the Committee unanimously agreed that it would want this to be addressed through "new" enforcement powers within this Bill. The Committee considers the Department's contention that further research is needed as merely a ploy to defer something that is needed now. The Committee also believes that it is possible to proceed with this without the need to criminalise someone for carrying out a minor improvement to his home. It is argued that the principle that there is a danger of criminalising minor offences, when major offences are occurring is wrong.

Another contentious issue has been that of 3rd Party Appeals. Again, the Department has contended that more research needs to be done and that these can only be introduced as part of an indepth review of planning processes, necessitating substantial legislation. The Committee considers this as a lack of real commitment by the Department to take this forward, as clearly evidenced by the views within Sections 4.112 et seq of its own Consultation Document on Modernising Planning Processes. The Committee considers that there has been more than adequate research done already and more than sufficient evidence of the workings of this system from other countries and would urge the Department to urgently reconsider its position.

In the Policy Memorandum, the Department briefly refers to new enforcement measures applying to hazardous substances and yet, no more information is given. In what context will this Bill apply to hazardous substances and what changes are proposed?

The Memorandum refers to a "Contravention Notice" and gives a brief, but not a particularly good description of its purpose. What exactly is a Contravention Notice and when and how will it be used?

The proposed Bill contains a number of different types of Notices, each with a specific purpose. However, it is not always clear exactly what each does. What is the difference between an Injunction, a Breach of Condition Notice, an Enforcement Notice and a Stop Notice?

In 1991 the Planning and Compensation Act was introduced into GB to deal with many of these issues within the proposed NI Bill. That was 11 years ago and yet the proposed level of fines - maximum of £20,000 - is the same as the 1991 Bill. The Department was asked as to why it had not introduced a level or range of fines that more reflects the potential benefits today for a developer if he breaches planning control - the Officials agreed that they would look again at this issue.

In connection with a Lawful Use Certificate, the Department states that "it is proposed to abolish the unsatisfactory situation whereby a development may be 'unlawful' but 'immune' from enforcement action because the time period for taking such action has elapsed." Can this "unsatisfactory situation" be clarified? What will be the outcome of this action?

Although too late for many of our trees, the new measures in relation to Tree Protection Orders are to be cautiously welcomed. There will be a requirement to replace trees subject to a TPO that have been removed or damaged. While this issue was discussed at the meeting, there was concern about the replacement of mature trees with the same number of saplings of the same type. Surely, it is to be expected that some saplings will be lost and should the need not be for a greater number of saplings to compensate for this loss? Again, Officials agreed to look at this issue.

The Memorandum refers to proposals to change the current provisions relating to the use of Planning Agreements. What exactly are Planning Agreements and what changes are proposed?

Development Plans are to be given prime importance in the determination of planning applications and yet it will be 2005, at the earliest, before all areas will have Development Plans? How will this proposal be applied, eg, are there interim arrangements?

It is noted that the Department was able to insert some additional provisions regarding the Planning Appeals Commission (PAC) and the Water Appeals Commission (WAC) following recent discussions with OFMDFM. Among these proposals is one to change the name of the combined PAC and WAC to the Environmental Appeals Commission (EAC). Were these proposals subject to public consultation? Can the Department expand on the choice of the new name other than it reflects "the now broader role of the PAC in environmental matters", eg, what exactly is this broader role?

The Committee fully accepts the Department's commitment to introducing these proposals as Bill as quickly as possible and will, wherever possible, assist in regards to responses, presentations and discussions. However, the Committee retains its right to satisfy itself in every respect if it is to finally give its approval to the Bill.

2.3 Following as early as possible, or even along with the response to this letter, it would be useful to the Committee to have sight of the draft legislation and the policy memorandum - it would also be useful to have a summary of the responses to the original consultation exercise on the proposals.

2.4 Modernising Planning Processes

The Committee viewed yesterday's presentation as an introduction to this Consultation Document and wholeheartedly agrees with the Department on the need for this exercise and, hopefully, subsequent changes. The Committee would welcome a further presentation at a later date but will want to carry out its own research and fact-finding on the issue before that. It is hoped that the next presentation will be able to focus much more on specific issues within the Document.

JIM BEATTY

ANNEX 7

LETTER FROM: THE MINISTER
DEPARTMENT OF THE ENVIRONMENT

17 April 2002

I am replying to Mr Beatty's 22 February 2002 letter to Jennifer McCay, following presentations on the Planning (Amendment) Bill and the recently published consultation paper entitled "Modernising Planning Processes" made to the Environment Committee by my officials' on 21 February 2002.

I am glad the Committee found the presentations to be both interesting and informative. I note that the Committee will carry out its own consultations on Modernising Planning Processes, and I very much welcome further debate as part of this process. My officials stand ready to brief the Committee in greater detail on the ideas and options canvassed in the consultation paper, and to answer any questions the Committee might have.

I note that the Committee generally welcomed the fact that so many of the concerns it had identified are being taken forward within the Bill. I also note that the Committee was particularly pleased with my Department's commitment to ensure that action is taken to enforce the new measures. In response to points raised by the Committee, I can confirm that officials are looking again at the proposed maximum level of fine that can be imposed in a Magistrates' Court. As regards the Committee's request for more information on the specific proposals, I have set out in the Annex, a more detailed description of the provisions, which I hope the Committee will find helps clarify the relationships between some of these matters.

As regards commencing development before planning permission is given, I note and share the Committee's concerns about this highly undesirable and unwelcome practice. This is an important area, and I can confirm that further research is being commissioned into the extent and scope of similar legislation in other jurisdictions and, in particular, what additional or alternative options might be available for addressing the problem of unauthorised development. For example, the act of commencing development without planning permission may involve only a minor breach of planning control or, indeed, may be entirely unintentional. In these cases, it may be more appropriate to use the pragmatic approach available to the Department under existing, and proposed, enforcement procedures, rather than by direct recourse to the Courts.

I note the Committee's recommendation that provisions to address this problem should be included in the current Bill and, in particular, a provision to make it an offence to commence development without planning permission. There would, however, be procedural difficulties in including such a major policy issue into the Bill at this stage, particularly one, which had not previously been subject to Executive Committee approval. Further Executive Committee approval would be required, and this I believe would jeopardise the progress of the Bill. In addition, any provision which made it unlawful to commence development without planning permission and thereby created a new offence, particularly one which does not exist elsewhere in the UK, would require the Secretary of State's approval, as the creation of offences is a reserved matter. This again, along with the possible need for further public consultation, would lead to further delay in introducing the Bill.

While I share the Committee's concerns about development commenced without planning permission, I do not believe, for the reasons set out above, that provisions to address this issue can be introduced to the Planning (Amendment) Bill at this stage. Nevertheless, I can assure the Committee that my officials are continuing to actively pursue the issues involved.

As for third party appeals, I am well aware of the Committee's interest in this matter. The introduction of third party appeals would represent a fundamental change to the planning process. Research carried out previously by Queens University has strongly suggested that a third party appeal system could not simply be inserted into our existing legislative framework without causing serious difficulty to the planning process in terms of operationally efficiency, increased delay and uncertainty. This is because the current planning system already facilitates considerable public participation and consultation in the pre-decision stages and a wider review of how third party appeals could be accommodated would be required, including full public consultation as well as an Equality Impact Assessment.

This is a fundamental issue and there are many different ways in which third party appeals could be introduced, and many difficult issues to be considered. For example, access could be available to all third parties or all objectors, or restricted to interested parties. An appeal could be restricted in other ways, such as for example, where a decision departs from the development plan. Furthermore, an appeal could relate to planning applications only or could be applied to all applications for consent under the Planning (NI) Order 1991. Where there is no legislative requirement to publish receipt of certain applications, such as small household extensions, further legislative change would be required. In addition, there would be significant resource implications both for the Department and the Planning Appeals Commission. Accordingly, I do not believe that this major issue can be dealt with within the current Planning (Amendment) Bill. My officials are, however, continuing to actively pursue the many complex issues involved and, indeed, further research has been commissioned to examine how third party appeals are administered in other jurisdictions.

In order to progress both issues, I propose that my officials submit a detailed paper to the Committee before the summer recess, which could be the subject of discussion at a future meeting.

Finally, the Committee asked for a summary of the responses to the consultation paper that issued in March 1999, and I enclose a copy as requested. The Office of the Legislative Counsel is currently drafting the legislation and I will forward a copy of the Bill to the Environment Committee at the same time as it is submitted to the Executive Committee. I enclose, for your information, a copy of the Policy Memorandum on the Planning (Amendment) Bill that was approved on 9 April 2002.

DERMOT NESBITT MLA
Minister of the Environment

ANNEX 8

LETTER FROM:
COMMITTEE FOR THE ENVIRONMENT

26 April 2002

The Minister's letter of 17 April 2002 to the Committee Chairperson on the above matter was discussed at yesterday's Committee meeting.

While disappointed at some of the contents - it was felt that some queries within the Committee's letter of 22 February 2002 had either not been addressed or not fully addressed - the Committee did welcome the Minister's commitment to progressing this Bill.

In order to assist the Committee's full and proper consideration of the proposals, it would be helpful to have answers to all of the following questions.

The Committee has consistently pressed for the inclusion of a clause to target/penalise those who commence development before planning permission is given and while noting the Minister's concern, it was disappointed that this is not to be included in the forthcoming Bill. Can you provide the Committee with some details of the 'further research that is being commissioned' and what 'issues' are being 'actively pursued', eg, when will this work start, who will carry this out and when will the outcomes be known?

In his letter the Minister referred to 'the pragmatic approach available to the Department' to deal with this matter. What precisely can the Department do within the present/proposed legislation to counter this problem?

The Minister also referred to the need for the Secretary of State's approval for the creation of a new offence to deal with this. Has the Department yet to approach the Secretary of State for approval for the other new offences within the proposed Bill and if so, the inclusion of this as an offence, would not necessarily delay the Bill?

The Committee appreciates that there are many consequential (and some potentially controversial) issues surrounding the introduction of Third Party Appeals into the planning process - the Minister's letter highlighted some of these and again referred to the commissioning of further research and actively pursuing complex issues. Again can you provide the Committee with some details of that research and the issues being examined, eg, when will this work start, who will carry this out and when will the outcome be known?

In the Policy Memorandum, the Department states that with certain modifications the new powers within the proposed Bill will apply to Hazardous Substances and yet, no further mention is made of this. In what context will these proposals apply to Hazardous Substances?

In its letter of 22 February 2002 the Committee asked for clarification on a number of the new enforcement powers and the Minister attached a further Annex to his response to deal with this. While the Annex did help with some matters, some of the explanations on the new powers and range of Notices did not fully clarify the purpose or resolve the Committee's concerns, for example, when the use of a Contravention Notice is appropriate. Can you provide some form of table, perhaps detailing the new powers and changes to existing powers, why the new powers/changes are being introduced and in what circumstances they will be used, preferably with examples?

Does the Department intend to increase the level of fines that can be imposed in a Magistrate's Court? If so, to what level? If these details are not known yet, when are they likely to be known?

The Department proposes to introduce 'spot listing' to respond quickly to buildings at risk. Will this power extend to trees, such as those removed at Shane Park, Belfast, this week? When trees that are protected by a TPO have been illegally removed and are ordered to be replaced, will the Department have the power to stipulate the number of replacement trees to be planted - Officials did agree to consider having an increased number of saplings planted on the basis that not all would survive?

Development Plans are to be given prime importance in the determination of planning applications and yet it will be at least 2005 before all areas will have Development Plans. How will this proposal be applied, eg, are there interim arrangements?

It is noted that the Department was able to insert some additional provisions regarding the Planning Appeals Commission (PAC) and the Water Appeals Commission (WAC) following recent discussions with OFM/DFM. Were all of these proposals subject to public consultation? Can the Department expand on the choice of the new name (EAC) in so far as it reflects "the now broader role of the PAC in environmental matters". What exactly is this broader role?

The Committee fully accepts the Department's commitment to introducing these proposals as Bill as quickly as possible and will, wherever possible, assist in regards to responses, presentations and discussions. However, the Committee retains the right to satisfy itself in every respect if it is to finally give its approval to the Bill.

It would help the Committee if it had full copies of the following responses to the Consultation Document - Environmental Link, Historic Buildings Council, Royal Town Planning Institute, the Ulster Architectural Heritage Society and the Woodland Trust (if it provided a response.)

Finally, in anticipation of an urgent response to this letter by 10.00am on Tuesday 30 April, the Committee would invite Officials to attend the meeting on 2 May 2002 at 10.45am to give a short presentation on the current position and to answer any queries from Members.

JIM BEATTY

annex 9

LETTER FROM:
DEPARTMENT OF THE ENVIRONMENT

30 April 2002

RE: PLANNING ISSUES

I am replying to your 26 April 2002 letter, in which the Committee raised a number of further issues in relation to the forthcoming Planning (Amendment) Bill. For ease of reference, I will respond to the various issues identified in the order in which they were raised.

I am sorry the Committee feels that the Minister's 17 April letter did not fully address the matters raised in its 22 February letter. The Department is pleased, however, that the Committee welcomes the Minister's commitment to progressing the Bill.

The Department notes the Committee's disappointment that a clause will not be included in the Bill to target/penalise those who commence development before planning permission is given. I can confirm, however, that the further research being commissioned from QUB has now commenced and will take approximately 6 weeks to complete. The terms of reference of the research project into the creation of a new offence for unauthorised development are to: -

• identify planning enforcement systems operating in the jurisdiction of the European Union;

• establish the mechanisms available to deal with breaches of planning control within these systems; and

• evaluate the effectiveness of such mechanisms and, where possible, focussing specifically on the deterrent value of the facility and the merits of punitive measures.

QUB have been asked to report to the Department in early June 2002, and that report will inform the drafting of, and form an annex to, the detailed paper which the Department will submit to the Committee for discussion before the summer recess.

As regards the pragmatic approach available to the Department, the Committee will be aware that the Department currently has powers under Article 68 of the Planning (Northern Ireland) Order 1991 to issue an Enforcement Notice where it appears that development has been commenced without the grant of planning permission or if any conditions or limitations that were the subject of a planning approval have not been complied with. Under current legislation where the steps required by an Enforcement Notice are not complied with within the stipulated period the person on whom the Notice was served is guilty of an offence and liable on summary conviction to a fine not exceeding £5,000. As you will be aware from the Minister's 17 April letter, the Department proposes increasing from £5,000 to £20,000, the maximum level of fine that can be imposed on summary conviction. The Department also proposes allowing for the first time, for a person to be convicted on indictment for this type of offence. In this latter case there would be no maximum limit to a fine that can be imposed on indictment and in determining the level of fine that can be imposed. In determining the level of fine to be imposed on a person convicted either summarily or on indictment, the Court must have regard to any financial benefit that has accrued or appears likely to accrue to him in consequence of the offence. In the case of a person guilty of an offence relating to the breach of a Listed Building Enforcement Notice we propose that a further deterrent, in addition to the increased level of fine, be available to the court of being able to impose a custodial sentence of up to 6 months on a person found guilty on summary conviction or up to 2 years in the case of a person found guilty on conviction on indictment.

As for seeking the Secretary of State's approval for the creation of the proposed new offences in the Bill, I can confirm that officials are in contact with the NIO to seek such approval. They are, however, doing so having first sought and received Executive Committee approval to the policy proposals concerned. While the Secretary of State's approval to the new offence of commencing development without planning permission should not take long to process, the Department would point out that no detailed policy consideration of this important issue has yet taken place and would be inappropriate and premature to seek SOS approval to the creation of a new offence until such consideration is complete and until Executive Committee approval to the policy proposals has been sought and received. Furthermore, preliminary discussions with NIO officials has indicated that the Secretary of State would be unlikely to give approval to an offence in Northern Ireland that did not exist elsewhere in the UK unless he was satisfied that the situation locally was so radically different from that elsewhere in the UK as to justify the creation of such an offence. Taken together, it would not be possible to develop specific policy proposals, discuss those detailed proposals with the Committee, seek Executive Committee approval, seek the Secretary of State's approval and draft the necessary clauses without jeopardising the Bill's progress.

As regards Third Party Appeals, as with the creation of a new offence for commencing development without planning permission, the further research into third party appeals commissioned from QUB has already commenced and will take approximately 6 weeks to complete. The terms of reference of the research project are to: -

• identify those planning systems loosely based on the British model of planning that have third party appeals mechanisms;

• for those systems, describe the third party appeal procedures and assess the statutory restrictions on third parties who wish to make planning appeals;

• briefly review other European Union planning systems, identifying how they deal with third party objectors and describe any mechanism, if any, that may be relevant to the consideration of third party appeals in a Northern Ireland context;

• provide an update on the impact of third party appeals in the Republic of Ireland taking account of the impact of the restrictions imposed as part of the Planning and Development Act 2000; and,

• outline a number of options for third party appeals that could be considered in the Northern Ireland context.

QUB have been asked to report to the Department in early June 2002, and that report will inform the drafting of, and form an annex to, the detailed paper which the Department will submit to the Committee for discussion before the summer recess.

As for Hazardous Substances we propose applying the new levels of fines for breaches of an Enforcement Notice to breaches of a Hazardous Substances Contravention Notice (HSCN). We also propose taking a new power giving the Department the flexibility to waive or relax any requirement of a HSCN or extend any period specified in it with regard to compliance either before or after it takes effect. Under its existing powers the only means of varying a HSCN is to withdraw it before it takes effect and to issue a new one.

The Committee also asked for further detail and clarification of the new enforcement powers being brought forward in the proposed Bill. I have set out in the Annex the further detail requested which I hope helps explain both the role and purpose of these new powers.

Officials have explored the potential for increasing the maximum level of fine, on summary conviction, beyond the £20,000 proposed. Officials have explored this possibility with NIO officials, since it is necessary to secure the Secretary of State's agreement to increase the fines and penalties available to the courts. Those discussions have indicated that the Secretary of State would be unlikely to give approval to a higher maximum fine in Northern Ireland unless he was satisfied that the situation locally was so radically different from that elsewhere in the UK as to justify the higher maximum fine level.

The Committee asked whether the proposal to introduce "spot listing" will extend to trees such as those removed at Shane's Park, Belfast. As indicated in the Minister's 17 April letter, however, the use of Building Preservation Notices, commonly referred to as "spot listing" is a fast track method of listing historic buildings it cannot be applied to trees. The Bill will, however, provide the Department with a power to serve a TPO so as to take immediate effect. As regards trees that are protected by a TPO that are removed illegally, the Department will, as is currently the case, have the power to stipulate, in an Enforcement Notice, the number of replacement trees to be replanted.

As regards giving prime importance to Development Plans in the determination of planning applications, I can confirm that this will be given immediate effect upon the coming into operation of the Bill. Contrary to the Committee's assertion that it will be at least 2005 before all areas will have Development Plans, the position is that all areas currently have Development Plans, with the exception of the Craigavon Borough Council area, albeit that a number have passed their notional end date. The planning position is that an existing Development Plan remains the relevant Plan for an area and a material consideration in the determination of planning applications, until such time as it is replaced, with the replacement Plan being accorded increasing weight in the determination of planning applications as it reached Draft Plan stage and beyond. Accordingly, there will be no need for interim arrangements to cover the period from primacy of Development Plans being given statutory effect and full and up to date Development Plan coverage being achieved.

As regards the PAC/WAC all the proposals in the Bill, with the exception of specifying the post of Deputy Chief Commissioner, which reflects a flaw in existing law which only came to light after the consultation paper issued, were the subject of public consultation. As for the proposed new name of the PAC/WAC, the Department has nothing further to add to that set out in the Minister's 17 April letter to the Committee.

I enclose, as requested, copies of the responses to the consultation paper from Environmental Link, HBC, RTPI and the UAHS. I can confirm that the Woodland Trust did not respond to the paper.

Finally, officials would of course be happy to attend the 2 May 2002 meeting to give a short presentation on the current position on the Bill and to answer any queries from Members.

JENNIFER McCAY
(Acting Assembly Liaison Officer)

ANNEX

Breach of Condition Notice

A breach of condition notice is mainly intended to be used as an alternative to the service of an Enforcement Notice for remedying a breach of condition arising from failure to comply with any planning condition or other limitation imposed by the grant of planning permission. However, it may also be served in addition to an Enforcement Notice as an alternative to a Stop Notice where the Department considers it expedient to stop the breach quickly because, e.g. it is causing serious environmental harm or is detrimental to amenity or public safety. It will be particularly useful where a valid planning condition has clearly been breached and the threat of summary prosecution is likely to compel a person to comply with the condition. The breach of condition notice will specify the steps required to secure compliance with the breached condition/limitation and will specify the period for securing such compliance. There is no right of appeal against a breach of condition notice and any person on whom such a notice is served, who fails to comply with the requirements of the notice, shall be guilty of an offence liable on summary conviction to a fine not exceeding £1,000.

Injunctions

Under existing legislation the Department has no powers to apply to a court for an injunction to prevent any actual or threatened breach of planning control. Where it wishes a court to impose an injunction it must first persuade the Attorney General to take a case on the Department's behalf. This invariably leads to delay and is unsatisfactory from the Department's perspective.

We propose taking a new power to allow the Department to apply direct to the High Court or County Court for an injunction to prevent: -

• any actual or threatened breach of planning control;
• any actual or threatened contravention of a listed building notice;
• any actual or apprehended offence in respect of a TPO; or
• any actual or apprehended contravention of a Hazardous Substances control.

Planning Contravention Notice

The purpose of a Planning Contravention Notice is to supplement, for planning enforcement purposes, the Department's limited powers under Article 125 of the Planning (Northern Ireland) Order 1991 to secure information as to estates in land. The service of a planning contravention notice is entirely optional and may be served when it appears that a breach of planning control may have occurred. It may be served on an person who is the owner or occupier of land to which the notice relates or is carrying out operations on the land or using it for any purpose. Its purpose is to require the recipient to provide such information as they may have available to them relating to: -

• any operation being carried out on the land, any use of the land and any other activities being carried out on the land; and
• any matter relating to conditions or limitations subject to which planning permission was granted.

The planning contravention notice must inform the recipient of the consequence of failing to respond to a notice which is that he shall be guilty of an offence liable on summary conviction to a fine not exceeding £1,000. It will also be an offence to make any statement purporting to comply with a planning contravention notice which is knowingly false or misleading liable on summary conviction to a fine not exceeding £5,000.

Certificate of Lawful Use/Development

Any person will be able to apply for a certificate of lawful development for existing operations on, or use of land, or some activity being carried out in breach of a planning condition, if the time for taking enforcement action has expired. The effect of a lawful development certificate is that the lawfulness of any matter for which a certificate is in force shall be conclusively presumed once a certificate of lawful development is issued.

Any person will be able to apply for a certificate of lawful use or development. The effect of a certificate of lawful use or development is to enable any person who wishes to find out whether any proposed use or operation would be lawful.

letter from:
the royal town planning institute
to the department

28 April 1999

proposals for amendments to planning
legislation in northern ireland

The Institute is grateful for the opportunity of commenting on the consultation paper on the Government's proposals for amendments to Planning Legislation in Northern Ireland.

In 1995, the Institute gave both written and oral evidence to the inquiry by the House of Commons Northern Ireland Affairs Committee on "The Planning System in Northern Ireland". Since publication of the Committee's report, we have commented to Ministers on the need to update legislation in Northern Ireland, particularly with regard to development control, enforcement and the primacy of development plans. These matters were discussed with Lord Dubs at a meeting held at his London Office in April last year.

The consultation paper has been considered particularly through the Institute's Irish Branch (Northern Section) and views have also been received from members of appropriate specialist topic Panels of the Institute. As a consequence, I am writing with the Institute's views on the paper.

General Comments

The Institute welcomes the suggested changes set out in the consultation paper, which broadly would bring the planning system in Northern Ireland in line with the provisions in England and Wales, include through the Planning and Compensation Act 1991. There is particular support for the emphasis on the introduction of a plan-led system and enhanced enforcement powers. The need for these changes to the order was set out in the Institute's evidence to the Select Committee.

Detailed Comments

We do, however, have a number of reservations about the proposals. These can be considered under the headings of political empowerment and statutory responsibility.

Political Empowerment

The Institute considers that the Order should contain some measures to address the democratic deficit in Northern Ireland. The present arrangements only empower the Department of the Environment (Northern Ireland) to undertake planning duties. However, the Institute anticipates that the new Assembly will have a Minister with responsibility for Planning. The Minister's role in relation to the Department and the Planning Appeals Commission should be clarified.

Although, the Institute understands that it is not currently being suggested that planning powers should be given back immediately to district councils, there is a case for them to be empowered to have involvement in the planning system, particularly with regard to development planning. Indeed, the regional planning framework to be in place in the near future (an initiative which the Institute very warmly applauds) and the development of the series of Planning Policy Statements (PPSs), are providing a growing context for the preparation of development plans.

Statutory Responsibility

There is some concern that not all of the Department's responsibilities are clearly defined. For example, the Department is empowered to undertake survey and monitoring work as necessary rather than as a statutory responsibility. Currently, monitoring and review procedures in the Department are poor. This is a matter on which the Institute specifically made representations to the Select Committee and to Ministers. Whilst it is accepted that this is largely a management rather than a legislative matter, there needs to be recognition that a plan-led approach, requires development plans to be kept up-to-date and constantly under review. In these circumstances, the Institute considers that there should be a statutory requirement for the Department to keep land use survey records and undertake certain monitoring activities, such as housing land take-up and town centre vitality and viability checks. Such information should also be made readily available within the public domain.

I trust you find these comments helpful. If the Department wishes to discuss them further, I would be pleased to arrange a meeting with members of the Institute's Irish Branch (Northern Section).

DAVID ROSE
Director, Public Affairs

letter from:
the historic buildings council
to the department

10 May 1999

proposals for amendments to planning legislation in northern ireland

Historic Buildings Council welcomes the opportunity of responding to this discussion document. Council is pleased to note that existing enforcement powers will be strengthened and primacy given to development plans.

annex b

1. enforcement

1.1 Injunctions

Council welcomes these proposed changes in particular, the 'express power to apply to the High Court for an injunction to prevent any actual or threatened breach of planning control'. We would welcome clarification of 'threatened breach of planning control'. In a recent case where buildings within a Conservation Area were demolished it was well known locally that the demolition would take place. When it happened on a Sunday morning, the local people were at church and when they arrived home the deed was done. Would this situation be seen as a 'threatened breach'?

1.7 Execution of Works

We welcome these paragraphs and in particular the reduction in the legal complexity in relation to drafting and issuing of notices.

1.8 Offence for Non-Compliance with an Enforcement Notice

Council is supportive of the ideals expressed in this paragraph particularly as non-compliance can result in further indictment. Several Council members suggest that serving of blight notices for a minimum period of 20 years might be more effective. Have you considered adopting such an approach?

1.9 Stop Notices

Council believes that stop notices should take immediate effect - not just 'within a period less than the normal 3 days'. In the situation where a stop notice is being used to prevent unlawful demolition or removal of features only immediate effect is of any use.

1.11 Rights of Entry for Enforcement Purposes

Council supports the proposals in these paragraphs but would like to know if the Human Rights Act 2000 will alter rights of entry in any way.

2. control over development

Council suggests the removal of permitted development rights on designation of a Conservation Area. We hope that it would be possible to make this retrospective so that it covers all existing Cas. Council would like to see the removal of permitted development rights in AONBs as buildings are part of the landscape in need of protection. Another area where we feel permitted development rights should be removed is multi-occupational dwellings of more than two storeys with horizontal breaks.

2.2 Demolition of Buildings

Council welcomes the general inclusion of 'demolition' within the meaning of 'development' as this will protect unlisted buildings outside Conservation Areas such as vernacular buildings. We understand that recent case law has not given a clear view on what extent of removal of a structure constitutes demolition but the Department must issue detailed guidelines on this to ensure property owners and applicants know exactly what the position is.

In addition, our experience has shown that the developer often uses the argument that a listed building was in a dangerous condition and for reasons of public safety needed to be demolished. We suggest that Government surveyors should be on 'standby' to adjudicate in such cases.

2.7 Dismissal of Appeal in Cases of Undue Delay

The Council supports the proposals outlined in these paragraphs.

3.1 Development Plans

Council welcomes the primacy of Development Plans. However, many Development Plans are out of date and there seems to be a continuing uncertainty about revision dates. It is crucial that a programme for Development Plan revision is made public and clarification is provided on the status of a development plan in the interim period.

4. tree preservation orders (tpos)

4.1 Council welcomes the proposal to afford trees in Conservation Areas the same protection as trees covered by TPOs.

5. listed buildings and buildings in a conservation area

5.1 Whilst we welcome the increase in fines from £10,000 to £20,000, this in many cases is minimal in relation to potential profits from carrying out an illegal demolition. A conviction on indictment allows an unlimited fine, based on any financial benefits accrued, but this is rarely, if ever, pursued by the Department.

5.3 Council is very concerned by the suggestion of the inclusion within criteria for appealing against a decision not to grant LBC or an enforcement notice 'the ground that the building is not of special architectural or historic interest'. We advise that this clause is deleted.

There are two reasons why we believe the clause should be removed.

1. This is effectively giving the PAC authority over PS/EHS to decide on the historic or architectural merit of a building. This is something the PAC is not qualified to do as it employs no experienced conservation staff.

2. Listing in NI commenced 20-30 years after GB; the first survey was only completed in 1994 and resurvey has just stated. We believe it would be correct to include this clause when resurvey is complete as this would probably comply with UK legislation.

5.4 We welcome the proposal to introduce powers for 'temporary' listing of buildings with immediate effect. It is essential this is used to protect buildings recognised as having the potential to be listed but which are under threat of demolition. It is also vital that this power is exercised by the professional staff of EHS and does not have to be requested from Planning Service.

7. the planning appeals commission

Council welcomes the streamlining of decision making in the PAC. We are concerned though that Commissioners with the relevant expertise should always be the ones adjudicating on cases involving Listed Buildings and Conservation Areas.

I hope our suggestions are helpful to your consideration of the proposed amendments. Council would be happy to discuss any matter further should you so wish.

PRIMROSE WILSON
Chairman

letter from:
the ulster architectural heritage society
to the department

7 April 1999

proposals for amendments to planning legislation in northern ireland

We are writing to welcome the proposals to amendments to current planning legislation for the province, and would like to comment specifically as follows:

Clause 1: Enforcement:

We are pleased to see the procedures for streamlining enforcement, and trust that this will lead to a greater number of cases being taken for breach of planning conditions.

On the question of time limits, it is probably unrealistic to pursue most cases going back further than ten years, but there will be cases where the building is off the beaten track and unauthorised work can be carried out long before the planning office would be aware of it. In such cases, ten years seems quite short. There is also a considerable problem in establishing when work was carried out, and once a time limit is put on, the defendant will always argue that his work falls outside the time.

We also understand that in the case of listed buildings there would not normally be a statute of limitation in any event as the demolition or alteration of a listed building is a criminal offence rather than a civil one. We would suggest that this exemption should therefore not apply to listed buildings or conservation areas.

We would suggest that you draw the attention of solicitors to the fact that the current owner of the land is responsible for past offences, and that they should ensure that their clients see listed building consents for any alterations to listed buildings (particularly replacement windows) as well the usual change of use matters.

The proposed maximum level of fine is raised from £5,000 to £20,000, which at first sight is a considerable step forward. However recent legislation passed in the Dail raises the maximum fine there to £1m. In the case of listed buildings or buildings in conservation areas being demolished to facilitate commercial development, a £20,000 fine is of little deterrent effect. It is also not clear whether if, for example, a developer knocks down ten buildings in a conservation area, that is one offence or ten. If the latter, the resultant fine of £200,000 might be effective; but a single large listed building carrying a fine of £20,000 would not be a deterrent.

Clause 2: Control over Development:

We are particularly pleased to note the proposal to consider the demolition of buildings as "development" and hence requiring planning permission. It is not clear what exceptions may be prescribed by the development order, but we trust that these will be very minor items like demolition of small rear extensions. Demolition of boundary walls, chimneys or dormers can be significant in their effect on an ATC or conservation area.

We also welcome the "power to decline to determine applications" which should prevent the vexatious problem of repetitive applications and refusals.

Clause 3: Development Plans:

The implications of this clause are confusing: on the one hand, development plans are to have prime importance; on the other, the planning authority may depart from it. In practice, we would have to agree that this is probably a sensible position, but it does seem strange on paper.

Clause 4: Tree Preservation Orders:

It seems imbalanced that the demolition of a listed building carries no more weight than the removal of a tree, but we welcome the increased fines on tree removal, and in particular the automatic requirement that the trees be replaced. However will there be any requirement that the trees should be replaced by plants of near equivalent maturity, of the same species and in the same location? The proposed automatic protection of trees in a conservation area seems sensible.

Clause 5: Listed Buildings and Buildings in a Conservation Area:

See our comments above regarding fines. Is it possible to increase the level of fine by taking such cases to the high court? Would that require special legislation? If that is not the case and the maximum fine is £20,000, how will the courts effectively "take account of any financial benefits accrued or likely to accrue" from the offence? Is it possible for the act of demolition to lead to a straightforward fine of £20,000 more or less automatically, with further action being taken to assess the financial benefits in the higher court?

We believe that the present legislation allows the Department to list buildings immediately, provided that it then consults with the HBC and local council. However this procedure can be open to complications if the local council proves to be opposed to the listing and its objections are felt to be substantial. The proposed temporary listing through the medium of building preservation notice effectively removes permitted development rights and allows the breathing space that is so often necessary to allow new uses to come forward to ensure the survival of a building.

The caveat that compensation would be payable if a BPN was not confirmed is understandable, but likely to lead to fears by the Department that it is opening itself to potential legal action in issuing a BPN. In practice it is very unlikely that the Department would not confirm its own BPN, but it may be necessary to spell out the grounds that might lead to such action.

General Comments:

This proposal includes much that is encouraging and worthwhile. We were very disappointed however to see that yet again the issue of Third Party Appeals has been omitted from the agenda. We believe that the people living beside a development, and those working in the area or concerned with aspects of it, may all have valid objections to a development in the same way as the owner of the land has in putting forward a proposal for its use.

Without suggesting that the Department is anything other than equitable in its decision-making process, we believe that the number of applications which are refused and subsequently allowed on appeal are probably balanced by approximately the same number that would have been refused on third party appeal. When you bear in mind that a development has a potentially damaging effect on the environment where a refusal merely continues the status quo, there is an even stronger case for allowing third party appeals. They are commonly heard in the South of Ireland and other EEC countries, and we are not aware that they have sabotaged genuinely useful development. On the other hand, they have prevented some very damaging proposals from being permitted.

In conclusion, we do welcome this paper, but feel it would be even more satisfactory if the maximum fine was increased, and if third party appeals were included in the new legislation. We trust that you will give further consideration to these issues.

JOAN KINCH
Secretary

letter from: 
northern ireland environment link
to the department

28 April 2002

proposals for amendments to planning legislation in northern ireland

Thank you for the opportunity to comment on the above document. Northern Ireland Environment Link is the forum and networking body for the voluntary environmental groups in Northern Ireland. The views presented in this paper have been agreed to by those Full Members of NIEL appended at the end of this document. Members of NIEL may also wish to make detailed comments on their own behalf and we would urge you to take these into consideration.

1. Welcome for the Amendments

We very much welcome these proposals. The legislative framework for planning in Northern Ireland has needed revision for some time and these proposals are a most welcome contribution to this. However, it is not sufficient for the legislation to only bring legislation in line with GB as that legislation has proven ineffective in dealing with some planning problems there. NI should strive to build on the expertise gained from other parts of the UK and Europe and devise legislation and policy which surpasses that in other places in its effectiveness. We strongly support the proposals made in this document, but feel that the opportunity should be taken to ensure that the legislative structure of planning will be capable of ensuring the effective delivery of the Regional Strategy.

2. Penalties

We welcome the increase in maximum penalties from £5,000 to £20,000 and the provision for individuals convicted to serve prison sentences. These are most welcome provisions, helping to ensure that planning legislation obligations, TPOs, etc are taken seriously by developers. In the past it has often been the case that developers have ignored conditions, listing etc because the cost of the fine was minor compared to the financial advantage to be gained from breaching conditions. The proposed increase in penalties, the opportunity to fine people repeatedly for continued breach and the possibility of prison might serve as more effective deterrents. The fact that fines can be linked to financial gain is also most welcome. However, in some circumstance the maximum fine of £20,000 may still be too low to deter developers who stand to make very large profits from breach of obligations. Consideration should be given to increasing this maximum further in some circumstances. Continue non-compliance must under all circumstances subject the developer to a continuing fine, not just a one-off payment. It will be essential that magistrates implement these fines at substantial, deterrent values if the legislation is to be implemented effectively. The threat of legal action must serve as an effective deterrent to unlawful activities or breach of obligations.

3. Protection from Damage

Injunctions are a crucial power to allow damage to be prevented. Similarly, we strongly welcome the strengthening of protection for trees and buildings. The power to issue Stop Notices is most welcome and must apply to building demolition and destruction of trees. Replacement of trees as an automatic requirement is welcomed, but there must be recognition that 'one for one' replacement is inadequate. If a large mature tree is removed then at least a heavy standard must be planted, or alternatively a large number of smaller trees. A guideline must be developed for replacement, perhaps to include smaller trees to cover the same area as that covered initially by the canopy of the destroyed tree. It is vital that there be an ongoing management plan in place to ensure the survival and health of trees subject to TPOs and for those planted as replacements. There must be provision for prosecution for damage as well as total destruction of trees under TPOs. TPOs must include woodlands as well as individual trees where appropriate. The system must be operated in a way which ensures that developers who damage or destroy trees do not gain financially from this activity. It is only in this way that developers will accept their responsibilities and avoid damaging trees. The system must also not allow a situation whereby landowners motivated by financial advantage can exact compensation for not damaging or felling trees and the legislation must be amended to ensure that this is so.

4. Extension of Planning Control

We strongly welcome the extension of planning control to fish farms, demolition of buildings and some outdoor advertising. We also welcome the extension of requirements of Environment Assessments. We are disappointed that there has been no extension of planning control to agricultural buildings and would strongly urge that planning control be extended to include them. The replacement of Agreements by Obligations is welcomed, but the example used is poor. It is extremely difficult to replace naturally biodiverse areas by man-made sites. Planning gain is a very useful concept when applied to providing community facilities or public benefit, but is less useful for biological conservation.

5. Plan Led Development

The revision of legislation and practice to promote plan led development is vital if the goals of the Regional Planning Strategy are to be realised. The current reliance on developers to devise projects without regard to local acceptability should be revised so that zonation within Area Plans allows for a more community beneficial approach to development to be devised. However, a plan led system can only work effectively if there is a comprehensive system of up-to-date plans covering the entire area.

6. Revision of Time Limits for Enforcement

We are not convinced of the value of this change. At present developers use this 'deemed' permission provision to facilitate their developments 'by the back door'. Reducing the time limit would seem designed to encourage this sort of activity. We are not convinced of the reasons for expecting single dwelling houses from the ten-year rule, as the same argument applies, whereby developers obtain permission for other sorts of development and wait until the time period has elapsed to obtain deemed permission for a development which was, and often still is, unacceptable. Considering that an owner can apply at any time for planning permission there seems to be no need for this clause; if the permission would be granted then why can the owner not apply?

7. Third Party Right of Appeal and Other Process Changes

We are disappointed that there is no provision for the introduction of third party right of appeal. This has been shown to be effective in other European countries and provides a valuable avenue for the public or special interest groups to appeal against proposed development. Many applicants for planning permission are granted on appeal; surely the continuation of the status quo (ie no development) should have at least an equal opportunity. It is often stated that such a system merely slows down the process by providing frivolous objectors another avenue. We would argue that it could prevent truly damaging development from taking place and provide a useful safeguard for the countryside and built environment. We urge you to consider including this option, as well as investigating carefully other changes in the planning process which will help to promote sustainable development and encourage full public involvement and participation in the planning process at all levels.

Thank you for the opportunity to make these comments. We hope that they are of use, and if you wish to discuss them further please contact me and I will arrange a meeting of members to discuss these matters with you.

DR SUE CHRISTIE
Director

On behalf of the following Full Members of Northern Ireland Environment Link:

Colin Glen Forest Park
Friends of the Earth
International Tree Foundation
Lenadoon Environmental Forum
Link Community Association Environmental Group
Mountaineering Council of Ireland
Mournes Heritage Trust
Rathcoole Community Forum
Rural Community Network
Sustainable Housing in Ireland
Ulster Angling Federation
Ulster Archaeological Society
Ulster Coarse Fishing Federation
Ulster Federation of Rambling Clubs
Ulster Society for the Preservation of the Countryside
Upper Faughan River Trust
Wildfowl and Wetlands Trust

annex 10

LETTER FROM:
DEPARTMENT OF THE ENVIRONMENT

23 May 2002

RE: PLANNING (AMENDMENT) BILL

When officials appeared before the Committee on 2 May 2002, they agreed to forward a copy of the Planning (Amendment) Bill, the Explanatory and Financial Memorandum and the Minister's letter to the Secretary of State, seeking his consent to the Assembly considering the Bill. I now enclose, for your information, a copy of the relevant documentation.

The Minister will now proceed to present the Bill to the Executive Committee (EC) meeting on 29 May 2002, seeking EC approval to introduce the Bill to the Assembly on 10 June 2002.

JENNIFER McCAY
(Acting Assembly Liaison Officer)

Planning (Amendment) Bill

[22/05/02 16:27:17]

Contents

New enforcement powers

1. Planning contravention notices [j1]
2. Enforcement of conditions [j2]
3. Injunctions [j3]

Other changes relating to enforcement

1. Time limits on enforcement action [j4]
2. Enforcement notices [j5]
3. Appeal against enforcement notice [j6]
4. Offence where enforcement notice not complied with [j8]
5. Execution of works required by enforcement notice [j7]
6. Stop notices [j9]
7. Certificate of lawful use or development [j10]
8. Rights of entry for enforcement purposes [j11]
9. Listed buildings [j18]
10. Hazardous substances [j18A]
11. Replacement of trees [j16A]

Control over development

1. Demolition [j28]
2. Reversion to previous lawful use [j27]
3. Power of Department to decline to determine applications [j14]
4. Assessment of environmental effects [j13]
5. Dismissal of appeals in cases of undue delay [j15]
6. Planning agreements [j21]

Control over particular matters

1. Advertisements [j17]
2. Building preservation notices [j22]
3. Trees [j16]

Miscellaneous

1. Status of development plans [j12]
2. Planning Appeals Commission [j110]
3. Grants for research and bursaries [j119]
4. Grants to bodies providing assistance in relation to certain development proposals [j120]
5. Planning register [j19]
6. Home loss payments following planning blight [j29]
7. Minor and consequential amendments and repeals [j24]
8. Commencement [j31]
9. Short title [j30]

Schedules:

Schedule 1 Minor and consequential amendments [s001]

Schedule 2 Repeals [s002]

A

B I L L

TO

Amend the law relating to planning; and for connected purposes.

E IT ENACTED by being passed by the Northern Ireland Assembly and assented to by Her Majesty as follows:

New enforcement powers

Planning contravention notices [j1]

1. In the Planning (Northern Ireland) Order 1991 (NI 11) (referred to in this Act as "the principal Order") in Part VI (enforcement) before Article 68 there is inserted¾

"Planning contravention notices

Power to require information about activities on land

67C.¾ (1) Where it appears to the Department that there may have been a breach of planning control in respect of any land, it may serve notice to that effect (referred to in this Order as a "planning contravention notice") on any person who¾

(a) is the owner or occupier of the land or has any other estate in it; or

(b) is carrying out operations on the land or is using it for any purpose.

(2) A planning contravention notice may require the person on whom it is served to give such information as to¾

(a) any operations being carried out on the land, any use of the land and any other activities being carried out on the land; and

(b) any matter relating to the conditions or limitations subject to which any planning permission in respect of the land has been granted,

as may be specified in the notice.

(3) Without prejudice to the generality of paragraph (2), the notice may require the person on whom it is served, so far as he is able¾

(a) to state whether or not the land is being used for any purpose specified in the notice or any operations or activities specified in the notice are being or have been carried out on the land;

(b) to state when any use, operations or activities began;

(c) to give the name and address of any person known to him to use or have used the land for any purpose or to be carrying out, or have carried out, any operations or activities on the land;

(d) to give any information he holds as to any planning permission for any use or operations or any reason for planning permission not being required for any use or operations;

(e) to state the nature of his estate (if any) in the land and the name and address of any other person known to him to have an estate in the land.

(4) A planning contravention notice may give notice of a time and place at which¾

(a) any offer which the person on whom the notice is served may wish to make to apply for planning permission, to refrain from carrying out any operations or activities or to undertake remedial works; and

(b) any representations which he may wish to make about the notice,

will be considered by the Department, and the Department shall give him an opportunity to make in person any such offer or representations at that time and place.

(5) A planning contravention notice must inform the person on whom it is served¾

(a) of the likely consequences of his failing to respond to the notice and, in particular, that enforcement action may be taken; and

(b) of the effect of Article 67(5)(b) of the Planning (Northern Ireland) Order 1972 (NI 17).

(6) Any requirement of a planning contravention notice shall be complied with by giving information in writing to the Department.

(7) The service of a planning contravention notice does not affect any other power exercisable in respect of any breach of planning control.

(8) In this Article references to operations or activities on land include operations or activities in, under or over the land.

Penalties for non-compliance with planning contravention notice

67D.¾ (1) If, at any time after the end of the period of 21 days beginning with the day on which a planning contravention notice has been served on any person, he has not complied with any requirement of the notice, he shall be guilty of an offence.

(2) An offence under paragraph (1) may be charged by reference to any day or longer period of time and a person may be convicted of a second or subsequent offence under that paragraph by reference to any period of time following the preceding conviction for such an offence.

(3) It shall be a defence for a person charged with an offence under paragraph (1) to prove that he had a reasonable excuse for failing to comply with the requirement.

(4) A person guilty of an offence under paragraph (1) shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(5) If any person¾

(a) makes any statement purporting to comply with a requirement of a planning contravention notice which he knows to be false or misleading in a material particular; or

(b) recklessly makes such a statement which is false or misleading in a material particular,

he shall be guilty of an offence.

(6) A person guilty of an offence under paragraph (5) shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.".

Enforcement of conditions [j2]

2. After Article 76 of the principal Order there is inserted¾

"Breach of condition

Enforcement of conditions

76A.¾ (1) This Article applies where planning permission for carrying out any development of land has been granted subject to conditions.

(2) The Department may, if any of the conditions is not complied with, serve a notice (in this Order referred to as a "breach of condition notice") on¾

(a) any person who is carrying out or has carried out the development; or

(b) any person having control of the land,

requiring him to secure compliance with such of the conditions as are specified in the notice.

(3) References in this Article to the person responsible are to the person on whom the breach of condition notice has been served.

(4) The conditions which may be specified in a notice served by virtue of paragraph (2)(b) are any of the conditions regulating the use of the land.

(5) A breach of condition notice shall specify the steps which the Department considers ought to be taken, or the activities which the Department considers ought to cease, to secure compliance with the conditions specified in the notice.

(6) The Department may by notice served on the person responsible withdraw the breach of condition notice, but its withdrawal shall not affect the power to serve on him a further breach of condition notice in respect of the conditions specified in the earlier notice or any other conditions.

(7) The period allowed for compliance with the notice is¾

(a) such period of not less than 28 days beginning with the date of service of the notice as may be specified in the notice; or

(b) that period as extended by a further notice served by the Department on the person responsible.

(8) If, at any time after the end of the period allowed for compliance with the notice¾

(a) any of the conditions specified in the notice is not complied with; and

(b) the steps specified in the notice have not been taken or, as the case may be, the activities specified in the notice have not ceased,

the person responsible is in breach of the notice.

(9) If the person responsible is in breach of the notice he shall be guilty of an offence.

(10) An offence under paragraph (9) may be charged by reference to any day or longer period of time and a person may be convicted of a second or subsequent offence under that paragraph by reference to any period of time following the preceding conviction for such an offence.

(11) It shall be a defence for a person charged with an offence under paragraph (9) to prove¾

(a) that he took all reasonable measures to secure compliance with the conditions specified in the notice; or

(b) where the notice was served on him by virtue of paragraph (2)(b), that he no longer had control of the land.

(12) A person who is guilty of an offence under paragraph (9) shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(13) In this Article¾

(a) "conditions" includes limitations; and

(b) references to carrying out any development include causing or permitting another to do so.".

Injunctions [j3]

3. After Article 76A of the principal Order (as inserted by section 2 of this Act) there is inserted¾

"Injunctions

Injunctions

76B.¾ (1) Where the Department considers it necessary or expedient for¾

(a) any actual or apprehended breach of planning control;

(b) any actual or apprehended contravention of Articles 44(1) or (5), 66 or 66A; or

(c) any actual or apprehended contravention of hazardous substances control,

to be restrained by injunction, it may apply to the court for an injunction, whether or not it has exercised or is proposing to exercise any of its other powers under this Part.

(2) On an application under paragraph (1) the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach.

(3) Rules of court and county court rules may provide for such an injunction to be issued against a person whose identity is unknown.

(4) In this Article "the court" means the High Court or the county court.".

Other changes relating to enforcement

Time limits on enforcement action [j4]

4.¾ (1) At the beginning of Part VI of the principal Order (enforcement) there is inserted¾

"Introductory

Expressions used in connection with enforcement

67A.¾ (1) For the purposes of this Order¾

(a) carrying out development without the planning permission required; or

(b) failing to comply with any condition or limitation subject to which planning permission has been granted,

constitutes a breach of planning control.

(2) For the purposes of this Order¾

(a) the issue of an enforcement notice; or

(b) the service of a breach of condition notice,

constitutes taking enforcement action.

Time limits

67B.¾ (1) Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of 4 years beginning with the date on which the operations were substantially completed.

(2) Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwelling-house, no enforcement action may be taken after the end of the period of 4 years beginning with the date of the breach.

(3) In the case of any other breach of planning control, no enforcement action may be taken after the end of the period of 10 years beginning with the date of the breach.

(4) The preceding paragraphs do not prevent¾

(a) the service of a breach of condition notice in respect of any breach of planning control if an enforcement notice in respect of the breach is in effect; or

(b) taking further enforcement action in respect of any breach of planning control if, during the period of 4 years ending with that action being taken, the Department has taken or purported to take enforcement action in respect of that breach.".

(2) If, in the case of any breach of planning control, the time for issuing an enforcement notice has expired, before the coming into operation of this section, by virtue of Article 68(4)(b) of the principal Order (as originally enacted), nothing in this section enables any enforcement action to be taken in respect of the breach.

Enforcement notices [j5]

5. For Article 68 of the principal Order (enforcement notices) there is substituted¾

"Issue of enforcement notice

68.¾ (1) The Department may issue a notice (in this Order referred to as an "enforcement notice") where it appears to it¾

(a) that there has been a breach of planning control; and

(b) that it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations.

(2) A copy of an enforcement notice shall be served¾

(a) on the owner and on the occupier of the land to which it relates; and

(b) on any other person having an estate in the land, being an estate which, in the opinion of the Department, is materially affected by the notice.

(3) The service of the notice shall take place¾

(a) not more than 28 days after its date of issue; and

(b) not less than 28 days before the date specified in it as the date on which it is to take effect.

Contents and effect of enforcement notice

68A.¾ (1) An enforcement notice shall state¾

(a) the matters which appear to the Department to constitute the breach of planning control; and

(b) the sub-paragraph of Article 67A(1) within which, in the opinion of the Department, the breach falls.

(2) A notice complies with paragraph (1)(a) if it enables any person on whom a copy of it is served to know what those matters are.

(3) An enforcement notice shall specify the steps which the Department requires to be taken, or the activities which the Department requires to cease, in order to achieve, wholly or partly, any of the following purposes.

(4) Those purposes are¾

(a) remedying the breach by making any development comply with the terms (including conditions and limitations) of any planning permission which has been granted in respect of the land, by discontinuing any use of the land or by restoring the land to its condition before the breach took place; or

(b) remedying any injury to amenity which has been caused by the breach.

(5) An enforcement notice may, for example, require¾

(a) the alteration or removal of any buildings or works;

(b) the carrying out of any building or other operations;

(c) any activity on the land not to be carried on except to the extent specified in the notice; or

(d) the contour of a deposit of refuse or waste materials on land to be modified by altering the gradient or gradients of its sides.

(6) Where an enforcement notice is issued in respect of a breach of planning control consisting of demolition of a building, the notice may require the construction of a building (in this section referred to as a "replacement building") which, subject to paragraph (7), is as similar as possible to the demolished building.

(7) A replacement building¾

(a) must comply with any requirement imposed by any statutory provision applicable to the construction of buildings;

(b) may differ from the demolished building in any respect which, if the demolished building had been altered in that respect, would not have constituted a breach of planning control;

(c) must comply with any regulations made for the purposes of this paragraph (including regulations modifying sub-paragraphs (a) and (b)).

(8) An enforcement notice shall specify the date on which it is to take effect and, subject to Article 69(8), shall take effect on that date.

(9) An enforcement notice shall specify the period at the end of which any steps are required to have been taken or any activities are required to have ceased and may specify different periods for different steps or activities; and, where different periods apply to different steps or activities, references in this Part to the period for compliance with an enforcement notice, in relation to any step or activity, are to the period at the end of which the step is required to have been taken or the activity is required to have ceased.

(10) An enforcement notice shall specify such additional matters as may be prescribed, and regulations may require every copy of an enforcement notice served under Article 68 to be accompanied by an explanatory note giving prescribed information as to the right of appeal under Article 69.

(11) Where¾

(a) an enforcement notice in respect of any breach of planning control could have required any buildings or works to be removed or any activity to cease, but does not do so; and

(b) all the requirements of the notice have been complied with,

then, so far as the notice did not so require, planning permission shall be treated as having been granted by virtue of Article 28A in respect of development consisting of the construction of the buildings or works or, as the case may be, the carrying out of the activities.

(12) Where¾

(a) an enforcement notice requires the construction of a replacement building; and

(b) all the requirements of the notice with respect to that construction have been complied with,

planning permission shall be treated as having been granted by virtue of Article 28A in respect of development consisting of that construction.

Variation and withdrawal of enforcement notices

68B.¾ (1) The Department may¾

(a) withdraw an enforcement notice issued by it; or

(b) waive or relax any requirement of such a notice and, in particular, may extend any period specified in accordance with Article 68A(9).

(2) The powers conferred by paragraph (1) may be exercised whether or not the notice has taken effect.

(3) The Department shall, immediately after exercising the powers conferred by paragraph (1), give notice of the exercise to every person who has been served with a copy of the enforcement notice or would, if the notice were re-issued, be served with a copy of it.

(4) The withdrawal of an enforcement notice does not affect the power of the Department to issue a further enforcement notice.".

Appeal against enforcement notice [j6]

6.¾ (1) For Article 69(3) and (4) of the principal Order (grounds of appeal and notice) there is substituted¾

"(3) An appeal may be brought on any of the following grounds¾

(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged;

(b) that those matters have not occurred;

(c) that those matters (if they occurred) do not constitute a breach of planning control;

(d) that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters;

(e) that copies of the enforcement notice were not served as required by Article 68;

(f) that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach;

(g) that any period specified in the notice in accordance with Article 68A(9) falls short of what should reasonably be allowed.

(4) An appeal under this Article shall be made by serving written notice of the appeal on the planning appeals commission before the date specified in the enforcement notice as the date on which it is to take effect and such notice shall indicate the grounds of the appeal and state the facts on which it is based.".

(2) For Article 71 of that Order (appeal against enforcement notice - supplementary provisions relating to planning permission) there is substituted¾

"71.¾ (1) On the determination of an appeal under Article 69, the planning appeals commission may¾

(a) grant planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control, whether in relation to the whole or any part of those matters or in relation to the whole or any part of the land to which the notice relates;

(b) discharge any condition or limitation subject to which planning permission was granted;

(c) determine whether, on the date on which the appeal was made, any existing use of the land was lawful, any operations which had been carried out in, on, over or under the land were lawful or any matter constituting a failure to comply with any condition or limitation subject to which planning permission was granted was lawful and, if so, issue a certificate under Article 83A.

(2) The provisions of Articles 83A to 83D mentioned in paragraph (3) shall apply for the purposes of paragraph (1)(c) as they apply for the purposes of Article 83A, but as if¾

(a) any reference to an application for a certificate were a reference to the appeal and any reference to the date of such an application were a reference to the date on which the appeal is made; and

(b) references to the Department were references to the planning appeals commission.

(3) Those provisions are Articles 83A(5) to (7), 83C(4) (so far as it relates to the form of the certificate), (6) and (7) and 83D.

(4) In considering whether to grant planning permission under paragraph (1), the planning appeals commission shall have regard to the development plan, so far as material to the subject matter of the enforcement notice, and to any other material considerations; and planning permission that may be granted under paragraph (1) is any planning permission that might be granted on an application under Part IV; and where under that paragraph the planning appeals commission discharges a condition or limitation, it may substitute another condition or limitation for it, whether more or less onerous.

(5) Where an appeal against an enforcement notice is brought under Article 69, the appellant shall be deemed to have made an application for planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control and, in relation to any exercise by the planning appeals commission of its powers under paragraph (1)¾

(a) any planning permission granted under that paragraph shall be treated as granted on that application;

(b) in relation to a grant of planning permission or a determination under that paragraph, the decision of the planning appeals commission shall be final; and

(c) subject to sub-paragraph (b), any planning permission granted under that paragraph shall have the like effect as a permission granted under Part IV.

(6) Where¾

(a) the notice under paragraph (4) of Article 69 indicates the ground mentioned in paragraph (3)(a) of that Article;

(b) any fee is payable under regulations made by virtue of Article 127 in respect of the application deemed to be made by virtue of the appeal; and

(c) the planning appeals commission gives notice in writing to the appellant specifying the period within which the fee must be paid,

then, if that fee is not paid within that period, the appeal, so far as brought on that ground, and the application shall lapse at the end of that period.".

Offence where enforcement notice not complied with [j8]

7. For Article 72 of the principal Order (penalties for non-compliance with enforcement notice) there is substituted¾

"Offence where enforcement notice not complied with

72.¾ (1) Where, at any time after the end of the period for compliance with an enforcement notice, any step required by the notice to be taken has not been taken or any activity required by the notice to cease is being carried on, the person who is then the owner of the land is in breach of the notice.

(2) Where the owner of the land is in breach of an enforcement notice he shall be guilty of an offence.

(3) In proceedings against any person for an offence under paragraph (2), it shall be a defence for him to show that he did everything he could be expected to do to secure compliance with the notice.

(4) A person who has control of or an estate in the land to which an enforcement notice relates (other than the owner) must not carry on any activity which is required by the notice to cease or cause or permit such an activity to be carried on.

(5) A person who, at any time after the end of the period for compliance with the notice, contravenes paragraph (4) shall be guilty of an offence.

(6) An offence under paragraph (2) or (5) may be charged by reference to any day or longer period of time and a person may be convicted of a second or subsequent offence under the paragraph in question by reference to any period of time following the preceding conviction for such an offence.

(7) Where¾

(a) a person charged with an offence under this Article has not been served with a copy of the enforcement notice; and

(b) the notice is not contained in the appropriate register kept under Article 124,

it shall be a defence for him to show that he was not aware of the existence of the notice.

(8) A person guilty of an offence under this Article shall be liable¾

(a) on summary conviction, to a fine not exceeding £20,000;

(b) on conviction on indictment, to a fine.

(9) In determining the amount of any fine to be imposed on a person convicted of an offence under this Article, the court shall in particular have regard to any financial benefit which has accrued or appears likely to accrue to him in consequence of the offence.".

Execution of works required by enforcement notice [j7]

8.¾ (1) For Article 74(1) of the principal Order (power to execute works required by enforcement notice) there is substituted¾

"(1) Where any steps required by an enforcement notice to be taken are not taken within the period allowed for compliance with the notice, a person authorised in writing by the Department may¾

(a) enter the land and take the steps; and

(b) recover from the person who is then the owner of the land any expenses reasonably incurred by it in doing so and those expenses shall be a civil debt recoverable summarily."

(2) After paragraph (8) of that Article there is added¾

"(9) Any person who wilfully obstructs a person acting in the exercise of powers under paragraph (1) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.".

Stop notices [j9]

9.¾ (1) In Article 73 of the principal Order (stop notices)¾

(a) for paragraphs (1) to (3) there is substituted¾

"(1) Where the Department considers it expedient that any relevant activity should cease before the expiry of the period for compliance with an enforcement notice, it may, when it serves the copy of the enforcement notice or afterwards, serve a notice (in this Order referred to as a "stop notice") referring to, and having annexed to it a copy of, the enforcement notice and prohibiting the carrying out of that activity on the land to which the enforcement notice relates, or any part of that land specified in the stop notice.

(2) In this Article and Article 67 of the Planning (Northern Ireland) Order 1972 (NI 17) "relevant activity" means any activity specified in the enforcement notice as an activity which the Department requires to cease and any activity carried out as part of that activity or associated with that activity.

(3) A stop notice may not be served where the enforcement notice has taken effect.

(3A) A stop notice shall not prohibit any person from continuing to use any building, caravan or other structure situated upon the land as his permanent residence whether as owner, occupier, tenant, patient, guest or otherwise.

(3B) A stop notice shall not take effect until such date as it may specify (and it cannot be contravened until that date), being a date¾

(a) not earlier than 3 days after the date when the notice is served, unless the Department considers that there are special reasons for specifying an earlier date and a statement of those reasons is served with the stop notice; and

(b) not later than 28 days from the date when the notice is first served on any person.

(3C) A stop notice shall not prohibit the carrying out of any activity if the activity has been carried out (whether continuously or not) for a period of more than 4 years ending with the service of the notice; and for the purposes of this paragraph no account is to be taken of any period during which the activity was authorised by planning permission.

(3D) Paragraph (3C) does not prevent a stop notice prohibiting any activity consisting of, or incidental to, building, engineering, mining or other operations or the deposit of refuse or waste materials.";

(b) in paragraph (4)(d) for the words "to be included" to the end there is substituted "relevant activities";

(c) for paragraph (7) (offences and penalties) there is substituted¾

"(7) If any person contravenes a stop notice after a site notice has been displayed or the stop notice has been served on him he shall be guilty of an offence.

(7A) An offence under this Article may be charged by reference to any day or longer period of time and a person may be convicted of a second or subsequent offence under this Article by reference to any period of time following the preceding conviction for such an offence.

(7B) References in this Article to contravening a stop notice include causing or permitting its contravention.

(7C) A person guilty of an offence under this Article shall be liable¾

(a) on summary conviction, to a fine not exceeding £20,000;

(b) on conviction on indictment, to a fine.

(7D) In determining the amount of any fine to be imposed on a person convicted of an offence under this Article, the court shall in particular have regard to any financial benefit which has accrued or appears likely to accrue to him in consequence of the offence.".

(2) For Article 67(5) of the Planning (Northern Ireland) Order 1972 (NI 17) there is substituted¾

"(5) No compensation is payable under this Article¾

(a) in respect of the prohibition in a stop notice of any activity which, at any time when the notice is in force, constitutes or contributes to a breach of planning control; or

(b) in the case of a claimant who was required to provide information under Article 67C or 125 of the Planning Order in respect of any loss or damage suffered by him which could have been avoided if he had provided the information or had otherwise co-operated with the Department when responding to the notice.".

Certificate of lawful use or development [j10]

10. After Article 83 of the principal Order there is inserted¾

"Certificate of lawful use or development

Certificate of lawfulness of existing use or development

83A.¾ (1) If any person wishes to ascertain whether¾

(a) any existing use of buildings or other land is lawful;

(b) any operations which have been carried out in, on, over or under land are lawful; or

(c) any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful,

he may make an application for the purpose to the Department specifying the land and describing the use, operations or other matter.

(2) For the purposes of this Order uses and operations are lawful at any time if¾

(a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and

(b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force.

(3) For the purposes of this Order any matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful at any time if¾

(a) the time for taking enforcement action in respect of the failure has then expired; and

(b) it does not constitute a contravention of any of the requirements of any enforcement notice or breach of condition notice then in force.

(4) If, on an application under this Article, the Department is provided with information satisfying it of the lawfulness at the time of the application of the use, operations or other matter described in the application, or that description as modified by the Department or a description substituted by it, the Department shall issue a certificate to that effect; and in any other case it shall refuse the application.

(5) A certificate under this Article shall¾

(a) specify the land to which it relates;

(b) describe the use, operations or other matter in question (in the case of any use falling within one of the classes specified in an order under Article 11(2)(e), identifying it by reference to that class);

(c) give the reasons for determining the use, operations or other matter to be lawful; and

(d) specify the date of the application for the certificate.

(6) The lawfulness of any use, operations or other matter for which a certificate is in force under this Article shall be conclusively presumed.

(7) A certificate under this Article in respect of any use shall also have effect, for the purposes of the following statutory provisions, as if it were a grant of planning permission¾

(a) section 3(3) of the Caravans Act (Northern Ireland) 1963 (c. 17);

(b) Article 7(2) of the Pollution Control and Local Government (Northern Ireland) Order 1978 (NI 19); and

(c) Article 8(3) of the Waste and Contaminated Land (Northern Ireland) Order 1997 (NI 19).

Certificate of lawfulness of proposed use or development

83B.¾ (1) If any person wishes to ascertain whether¾

(a) any proposed use of buildings or other land; or

(b) any operations proposed to be carried out in, on, over or under land,

would be lawful, he may make an application for the purpose to the Department specifying the land and describing the use or operations in question.

(2) If, on an application under this Article, the Department is provided with information satisfying it that the use or operations described in the application would be lawful if instituted or begun at the time of the application, it shall issue a certificate to that effect; and in any other case it shall refuse the application.

(3) A certificate under this Article shall¾

(a) specify the land to which it relates;

(b) describe the use or operations in question (in the case of any use falling within one of the classes specified in an order under Article 11(2)(e), identifying it by reference to that class);

(c) give the reasons for determining the use or operations to be lawful; and

(d) specify the date of the application for the certificate.

(4) The lawfulness of any use or operations for which a certificate is in force under this Article shall be conclusively presumed unless there is a material change, before the use is instituted or the operations are begun, in any of the matters relevant to determining such lawfulness.

Certificates under Articles 83A and 83B: supplementary provisions

83C.¾ (1) An application for a certificate under Article 83A or 83B shall be made in such manner as may be specified by a development order and shall include such particulars, and be verified by such evidence, as may be required by such an order or by any directions given under such an order or by the Department.

(2) Provision may be made by a development order for regulating the manner in which applications for certificates under those Articles are to be dealt with by the Department.

(3) In particular, such an order may provide for requiring the Department¾

(a) to give to any applicant within such time as may be specified by the order such notice as may be so specified as to the manner in which his application has been dealt with; and

(b) to give to such persons as may be specified by or under the order, such information as may be so specified with respect to such applications, including information as to the manner in which any application has been dealt with.

(4) A certificate under either of those Articles may be issued¾

(a) for the whole or part of the land specified in the application; and

(b) where the application specifies two or more uses, operations or other matters, for all of them or some one or more of them;

and shall be in such form as may be specified by a development order.

(5) A certificate under Article 83A or 83B shall not affect any matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted unless that matter is described in the certificate.

(6) In Article 124 references to applications for planning permission shall include references to applications for certificates under Article 83A or 83B.

(7) The Department may revoke a certificate under either of those Articles if, on the application for the certificate¾

(a) a statement was made or document used which was false in a material particular; or

(b) any material information was withheld.

(8) Provision may be made by a development order for regulating the manner in which certificates may be revoked and the notice to be given of such revocation.

Offences

83D.¾ (1) If any person, for the purpose of procuring a particular decision on an application (whether by himself or another) for the issue of a certificate under Article 83A or 83B¾

(a) knowingly or recklessly makes a statement which is false or misleading in a material particular;

(b) with intent to deceive, uses any document which is false or misleading in a material particular; or

(c) with intent to deceive, withholds any material information,

he shall be guilty of an offence.

(2) A person guilty of an offence under paragraph (1) shall be liable¾

(a) on summary conviction, to a fine not exceeding the statutory maximum;

(b) on conviction on indictment, to imprisonment to a term not exceeding two years or a fine or both.

(3) Notwithstanding Article 19 of the Magistrates' Courts (Northern Ireland) Order 1981 (NI 26), a magistrates' court may hear and determine a complaint in respect of an offence under paragraph (1) whenever made.

Appeals against refusal or failure to give decision on application

83E.¾ (1) Where an application is made to the Department for a certificate under Article 83A or 83B and¾

(a) the application is refused or is refused in part, or

(b) the Department does not give notice to the applicant of its decision on the application within such period as may be specified by a development order or within such extended period as may at any time be agreed upon in writing between the applicant and the Department,

the applicant may by notice appeal to the planning appeals commission.

(2) On any such appeal, if and so far as the planning appeals commission is satisfied¾

(a) in the case of an appeal under paragraph (1)(a), that the Department's refusal is not well-founded; or

(b) in the case of an appeal under paragraph (1)(b), that if the Department had refused the application its refusal would not have been well-founded,

the planning appeals commission shall grant the appellant a certificate under Article 83A or, as the case may be, 83B accordingly or, in the case of a refusal in part, modify the certificate granted by the Department on the application.

(3) If and so far as the planning appeals commission is satisfied that the Department's refusal is or, as the case may be, would have been well-founded, the commission shall dismiss the appeal.

(4) References in this Article to a refusal of an application in part include a modification or substitution of the description in the application of the use, operations or other matter in question.

Further provisions as to appeals under Article 83E

83F.¾ (1) Before determining an appeal to it under Article 83E(1), the planning appeals commission shall, if either the appellant or the Department so wish, afford to each of them an opportunity of appearing before, and being heard by, a person appointed by the planning appeals commission for the purpose.

(2) Where the planning appeals commission grants a certificate under Article 83A or 83B on such an appeal, it shall give notice to the Department of that fact.

(3) The decision of the planning appeals commission on such an appeal shall be final.".

Rights of entry for enforcement purposes [j11]

11.¾ (1) At the end of Part VI of the principal Order there is inserted¾

"Rights of entry for enforcement purposes

Rights to enter without warrant

84A.¾ (1) Any person duly authorised in writing by the Department may at any reasonable time enter any land¾

(a) to ascertain whether there is or has been any breach of planning control on the land or any other land;

(b) to ascertain whether an offence has been, or is being, committed with respect to any building on the land or any other land, under Article 44, 49 or 72 as applied by Article 77(6);

(c) to ascertain whether an offence has been committed under Article 61, 66 or 66A;

(d) for the purpose of exercising any of the functions conferred by Article 80;

(e) to determine whether any of the powers conferred on the Department by this Part should be exercised in relation to the land or any other land;

(f) to determine how any such power should be exercised in relation to the land or any other land;

(g) to ascertain whether there has been compliance with any requirement imposed as a result of any such power having been exercised in relation to the land or any other land,

if there are reasonable grounds for entering for the purpose in question.

(2) Admission to any building used as a dwelling-house shall not be demanded as of right by virtue of paragraph (1) unless 24 hours' notice of the intended entry has been given to the occupier of the building.

Right to enter under warrant

84B.¾ (1) If it is shown to the satisfaction of a justice of the peace on a complaint on oath¾

(a) that there are reasonable grounds for entering any land for any of the purposes mentioned in Article 84A(1); and

(b) that¾

(i) admission to the land has been refused, or a refusal is reasonably apprehended; or

(ii) the case is one of urgency,

the justice may issue a warrant authorising any person duly authorised in writing by the Department to enter the land.

(2) For the purposes of paragraph (1)(b)(i) admission to land shall be regarded as having been refused if no reply is received to a request for admission within a reasonable period.

(3) A warrant authorises entry on one occasion only and that entry must be¾

(a) within one month from the date of the issue of the warrant; and

(b) at a reasonable time, unless the case is one of urgency.

Rights of entry: supplementary provisions

84C.¾ (1) A person authorised to enter any land in pursuance of a right of entry conferred under or by virtue of Article 84A or 84B (referred to in this Article as "a right of entry")¾

(a) shall, if so required, produce evidence of his authority and state the purpose of his entry before so entering;

(b) may take with him such other persons as may be necessary; and

(c) on leaving the land shall, if the owner or occupier is not then present, leave it as effectively secured against trespassers as he found it.

(2) Any person who wilfully obstructs a person acting in the exercise of a right of entry shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(3) If any damage is caused to property in the exercise of a right of entry, compensation may be recovered by any person suffering the damage from the Department.

(4) Any question of disputed compensation recoverable under paragraph (3) shall be determined by the Lands Tribunal.

(5) If any person who enters any land, in exercise of a right of entry, discloses to any person any information obtained by him while on the land as to any manufacturing process or trade secret, he shall be guilty of an offence.

(6) Paragraph (5) does not apply if the disclosure is made by a person in the course of performing his duty in connection with the purpose for which he was authorised to enter the land.

(7) A person who is guilty of an offence under paragraph (5) shall be liable¾

(a) on summary conviction to a fine not exceeding the statutory maximum;

(b) on conviction on indictment to imprisonment for a term not exceeding two years or a fine or both.".

(2) In Article 121(1) of that Order (rights of entry)¾

(a) in sub-paragraph (a)(v) for "Part IV, V or VI" is substituted "Part IV or V";

(b) in sub-paragraph (c), heads (i) and (iii) are omitted;

(c) sub-paragraph (e) is omitted.

Listed buildings [j18]

12.¾ (1) In Article 44 of the principal Order (control of works for demolition, alteration or extension of listed buildings) for paragraph (6) there is substituted¾

"(6) A person guilty of an offence under paragraph (1) or (5) shall be liable¾

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding £20,000, or both,

(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine or both;

and in determining the amount of any fine imposed on a person convicted of an offence under paragraph (1) or (5) the court shall have particular regard to any financial benefit which has accrued or is likely to accrue to him in consequence of the offence.".

(2) In Article 77 of that Order for paragraph (4) there is substituted¾

"(4) A listed building enforcement notice¾

(a) shall specify the date on which it is to take effect and, subject to Article 78, shall take effect on that date; and

(b) shall specify the period within which any steps are required to be taken and may specify different periods for different steps,

and where different periods apply to different steps, references in this Part to the period for compliance with a listed building enforcement notice, in relation to any steps, are to the period within which the step is required to be taken.".

(3) In Article 78 of that Order¾

(a) for paragraph (1)(a) and (b) there is substituted¾

"(a) that the matters alleged to constitute a contravention of Article 44 have not occurred;

(b) that those matters (if they occurred) do not constitute such a contravention;";

(b) in paragraph (2)(a) the words "in writing" are omitted.

Hazardous substances [j18A]

13.¾ (1) In Article 61 of the principal Order (offences) for paragraph (4) there is substituted¾

"(4) A person guilty of an offence under this Article shall be liable¾

(a) on summary conviction, to a fine not exceeding £20,000;

(b) on conviction on indictment, to a fine,

and in determining the amount of any fine to be imposed on a person convicted of an offence under this Article, the court shall in particular have regard to any financial benefit which has accrued or appears likely to accrue to him in consequence of the offence.".

(2) In Article 81 of that Order (hazardous substances contravention notices)¾

(a) in paragraph (3)(b) after "remedy" there is inserted "wholly or partly";

(b) in paragraph (8) after "before" there is inserted "or after";

(c) at the end of paragraph (9) there is inserted "or would, if the notice were re-issued, be served with a copy of it";

(d) in paragraph (11) after "shall" there is inserted ", subject to regulations made under this Article,".

(3) After that Article there is inserted¾

"Variation of hazardous substances contravention notices

81A.¾ (1) The Department may waive or relax any requirement of a hazardous substances contravention notice issued by it and, in particular, may extend any period specified in accordance with Article 81(5)(b) in the notice.

(2) The powers conferred by paragraph (1) may be exercised before or after the notice takes effect.

(3) The Department shall, immediately after exercising those powers, give notice of the exercise to every person who has been served with a copy of the hazardous substances contravention notice or would, if the notice were re-issued, be served with a copy of it.".

Replacement of trees [j16A]

14. For Article 82 of the principal Order (enforcement of duties as to replacement of trees) there is substituted¾

"Enforcement of duties as to replacement of trees

82.¾ (1) If it appears to the Department that¾

(a) the provisions of Article 65B, or

(b) any conditions of a consent given under a tree preservation order which require the replacement of trees,

are not complied with in the case of any tree or trees, the Department may serve on the owner of the land a notice requiring him, within such period as may be specified in the notice, to plant a tree or trees of such size and species as may be so specified.

(2) A notice under paragraph (1) may only be served within 4 years from the date of the alleged failure to comply with those provisions or conditions.

(3) A notice under paragraph (1) shall specify a period at the end of which it is to take effect.

(4) The specified period shall be a period of not less than 28 days beginning with the date of service of the notice.

(5) The duty imposed by Article 65B(1) may only be enforced as provided by this Article and not otherwise.

Appeals against Article 82 notices

82A.¾ (1) A person on whom a notice under Article 82(1) is served may appeal to the planning appeals commission against the notice on any of the following grounds¾

(a) that the provisions of Article 65B or, as the case may be, the conditions mentioned in Article 82(1)(b) are not applicable or have been complied with;

(b) that in all the circumstances of the case the duty imposed by Article 65B(1) should be dispensed with in relation to any tree;

(c) that the requirements of the notice are unreasonable in respect of the period or the size or species of trees specified in it;

(d) that the planting of a tree or trees in accordance with the notice is not required in the interests of amenity or would be contrary to the practice of good forestry;

(e) that the place on which the tree is or trees are required to be planted is unsuitable for that purpose.

(2) An appeal under paragraph (1) shall be made by serving written notice of the appeal on the planning appeals commission before the end of the period specified in accordance with Article 82(3) and such notice shall indicate the grounds of the appeal and state the facts on which it is based.

(3) On any such appeal the planning appeals commission shall, if either the appellant or the Department so desires, afford to each of them an opportunity of appearing before and being heard by the commission.

(4) Where an appeal is brought under this Article, the notice under Article 82(1) shall be of no effect pending the final determination or the withdrawal of the appeal.

(5) On an appeal under this Article the planning appeals commission may¾

(a) correct any defect, error or misdescription in the notice; or

(b) vary any of its requirements,

if it is satisfied that the correction or variation will not cause injustice to the appellant or the Department.

(6) Where the planning appeals commission determines to allow the appeal, it may quash the notice.

(7) The planning appeals commission shall give any directions necessary to give effect to its determination on the appeal.

(8) Where any person has appealed to the planning appeals commission under this Article against a notice, neither that person nor any other shall be entitled, in any other proceedings instituted after the making of the appeal, to claim that the notice was not duly served on the person who appealed.

Execution and cost of works required by Article 82 notice

82B.¾ (1) If, within the period specified in a notice under Article 82(1) for compliance with it, or within such extended period as the Department may allow, any trees which are required to be planted by a notice under that Article have not been planted, the Department may¾

(a) enter the land and plant those trees; and

(b) recover from the person who is then the owner of the land any expenses reasonably incurred by it in doing so and those expenses shall be a civil debt recoverable summarily.

(2) Where such a notice has been served¾

(a) any expenses incurred by the owner of any land for the purpose of complying with the notice; and

(b) any sums paid by the owner of any land under paragraph (1) in respect of expenses incurred by the Department in planting trees required by such a notice to be planted,

shall be deemed to be incurred or paid for the use and at the request of any person, other than the owner, responsible for the cutting down, destruction or removal of the original tree or trees.

(3) Paragraphs (3) to (9) of Article 74 shall with any necessary modifications apply to a notice under this Article as those paragraphs apply to an enforcement notice.

Enforcement of controls as respects trees in conservation areas

82C.¾ (1) If any tree to which Article 66A applies¾

(a) is removed, uprooted or destroyed in contravention of that Article; or

(b) is removed, uprooted or destroyed or dies at a time when its cutting down or uprooting is authorised only by virtue of the provisions of such regulations under paragraph (1) of Article 66B as are mentioned in paragraph (3) of that Article,

it shall be the duty of the owner of the land to plant another tree of an appropriate size and species at the same place as soon as he reasonably can.

(2) The duty imposed by paragraph (1) does not apply to an owner if on application by him the Department dispenses with it.

(3) The duty imposed by paragraph (1) on the owner of any land attaches to the person who is from time to time the owner of the land and may be enforced as provided by Article 82 and not otherwise.".

Control over development

Demolition [j28]

15.¾ (1) In Article 11 of the principal Order (meaning of "development") after subsection (1) there is inserted¾

"(1A) For the purposes of this Order "building operations" includes¾

(a) demolition of buildings;

(b) rebuilding;

(c) structural alteration of or addition to buildings; and

(d) other operations normally undertaken by a person carrying on business as a builder.".

(2) In paragraph (2) of that Article, after sub-paragraph (e) there is inserted¾

"(f) the demolition of any description of building specified in a direction given by the Department.".

Reversion to previous lawful use [j27]

16. Article 12 of the principal Order (development requiring planning permission) shall be renumbered as paragraph (1) of that Article and after that paragraph there is inserted¾

"(2) Where planning permission to develop land has been granted for a limited period, planning permission is not required for the resumption, at the end of that period, of its use for the purpose for which it was normally used before the permission was granted.

(3) Where by a development order planning permission to develop land has been granted subject to limitations, planning permission is not required for the use of that land which (apart from its use in accordance with that permission) is its normal use.

(4) Where an enforcement notice has been issued in respect of any development of land, planning permission is not required for its use for the purpose for which (in accordance with the provisions of this Part) it could lawfully have been used if that development had not been carried out.

(5) In determining for the purposes of paragraphs (2) and (3) what is or was the normal use of land, no account shall be taken of any use begun in contravention of this Part.".

Power of Department to decline to determine applications [j14]

17.¾ (1) After Article 25 of the principal Order there is inserted¾

"Power of Department to decline to determine applications

25A.¾ (1) The Department may decline to determine an application for planning permission for the development of any land if¾

(a) within the period of 2 years ending with the date on which the application is received¾

(i) the Department has refused a similar application under Article 31; or

(ii) the planning appeals commission has dismissed an appeal against the refusal of a similar application; and

(b) in the opinion of the Department there has been no significant change since the refusal or, as the case may be, dismissal mentioned in sub-paragraph (a) in the development plan, so far as material to the application, or in any other material considerations.

(2) For the purposes of this Article an application for planning permission for the development of any land shall only be taken to be similar to a later application if the development and the land to which the applications relate are in the opinion of the Department the same or substantially the same.

(3) The reference in paragraph (1)(a)(ii) to an appeal against the refusal of an application includes an appeal under Article 33 in respect of an application.".

(2) In Article 33 of that Order (right to appeal where Department has failed to take a decision on an application) after "applies," there is inserted¾

"or

(c) gives notice to him that it has exercised its power under Article 25A to decline to determine the application,".

Assessment of environmental effects [j13]

18. After Article 25A of the principal Order (as inserted by section 17 of this Act) there is inserted¾

"Assessment of environmental effects

25B.¾ (1) The Department may by regulations make provision about the consideration to be given, before planning permission for development of any class specified in the regulations is granted, to the likely environmental effects of the proposed development.

(2) The regulations may make the same provision as, or provision similar or corresponding to, any provision made, for the purposes of any Community obligation of the United Kingdom about the assessment of the likely effects of the development on the environment, under section 2(2) of the European Communities Act 1972.".

Dismissal of appeals in cases of undue delay [j15]

19. In Article 32 of the principal Order (appeals) after paragraph (5) there is inserted¾

"(5A) If at any time before or during the determination of an appeal under this Article it appears to the planning appeals commission that the appellant is responsible for undue delay in the progress of the appeal, it may¾

(a) give the appellant notice that the appeal will be dismissed unless the appellant takes, within the period specified in the notice, such steps as are specified in the notice for the expedition of the appeal; and

(b) if the appellant fails to take those steps within that period, dismiss the appeal accordingly.".

Planning agreements [j21]

20.¾ (1) For Article 40 of the principal Order (agreements facilitating, regulating or restricting development or use of land) there is substituted¾

"Planning agreements

40.¾ (1) Any person who has an estate in land may enter into an agreement (referred to in this Article and Articles 40A and 40B as "a planning agreement"), enforceable to the extent mentioned in paragraph (3)¾

(a) facilitating or restricting the development or use of the land in any specified way;

(b) requiring specified operations or activities to be carried out in, on, under or over the land;

(c) requiring the land to be used in any specified way; or

(d) requiring a sum or sums to be paid to the Department on a specified date or dates or periodically.

(2) A planning agreement may¾

(a) be unconditional or subject to conditions;

(b) impose any restriction or requirement mentioned in paragraph (1)(a) to (c) either indefinitely or for such period or periods as may be specified; and

(c) if it requires a sum or sums to be paid, require the payment of a specified amount or an amount determined in accordance with the instrument by which the agreement is entered into and, if it requires the payment of periodical sums, require them to be paid indefinitely or for a specified period.

(3) Subject to paragraph (4) a planning agreement is enforceable¾

(a) against the person entering into the agreement; and

(b) against any person deriving title from that person.

(4) The instrument by which a planning agreement is entered into may provide that a person shall not be bound by the agreement in respect of any period during which he no longer has an estate in the land.

(5) A restriction or requirement imposed under a planning agreement is enforceable by injunction.

(6) Without prejudice to paragraph (5), if there is a breach of a requirement in a planning agreement to carry out any operations in, on, under or over the land to which the agreement relates, the Department may¾

(a) enter the land and carry out the operations; and

(b) recover from the person or persons against whom the agreement is enforceable any expenses reasonably incurred by it in doing so and those expenses shall be a civil debt recoverable summarily.

(7) Before the Department exercises its power under paragraph (6)(a) it shall give not less than 21 days' notice of its intention to do so to any person against whom the planning agreement is enforceable.

(8) Any person who wilfully obstructs a person acting in the exercise of a power under paragraph (6)(a) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(9) A planning agreement may not be entered into except by an instrument under seal which¾

(a) states that the agreement is a planning agreement for the purposes of this Article;

(b) identifies the land in which the person entering into the agreement has an estate; and

(c) identifies the person entering into the agreement and states what his estate in the land is.

(10) If a person against whom an agreement is enforceable requests the Department to supply him with a copy of the agreement, it shall be the duty of the Department to do so free of charge.

(11) Any sum or sums required to be paid under a planning agreement and any expenses recoverable by the Department under paragraph (6)(b) shall, until recovered, be deemed to be charged on and payable out of the estate in the land in relation to which they have been incurred, of the person against whom the planning agreement is enforceable.

(12) The charge created by paragraph (11) shall be enforceable in all respects as if it were a valid mortgage by deed created in favour of the Department by the person on whose estate the charge has been created (with, where necessary, any authorisation or consent required by law) and the Department may exercise the powers conferred by sections 19, 21 and 22 of the Conveyancing Act 1881 (c. 41) on mortgagees by deed accordingly.

(13) In this Article "specified" means specified in the instrument by which the planning agreement is entered into.

Modification and discharge of planning agreements

40A.¾ (1) A planning agreement may not be modified or discharged except¾

(a) by agreement between the Department and the person or persons against whom the agreement is enforceable; or

(b) in accordance with this Article and Article 40B.

(2) An agreement falling within paragraph (1)(a) shall be contained in an instrument under seal.

(3) A person against whom a planning agreement is enforceable may, at any time after the expiry of the relevant period, apply to the Department for the agreement¾

(a) to have effect subject to such modifications as may be specified in the application; or

(b) to be discharged.

(4) In paragraph (3) "the relevant period" means¾

(a) such period as may be prescribed; or

(b) if no period is prescribed, the period of 5 years beginning with the date on which the agreement is entered into.

(5) An application under paragraph (3) for the modification of a planning agreement may not specify a modification imposing an obligation on any other person against whom the agreement is enforceable.

(6) Where an application is made to the Department under paragraph (3), the Department may determine¾

(a) that the planning agreement shall continue to have effect without modification;

(b) if the agreement no longer serves a useful purpose, that it shall be discharged; or

(c) if the agreement continues to serve a useful purpose, but would serve that purpose equally well if it had effect subject to the modifications specified in the application, that it shall have effect subject to those modifications.

(7) The Department shall give notice of its determination to the applicant within such period as may be prescribed.

(8) Where the Department determines that a planning agreement shall have effect subject to modifications specified in the application, the agreement as modified shall be enforceable as if it had been entered into on the date on which notice of the determination was given to the applicant.

(9) Regulations may make provision with respect to¾

(a) the form and content of applications under paragraph (3);

(b) the publication of notices of such applications;

(c) the procedures for considering any representations made with respect to such applications; and

(d) the notices to be given to applicants of determinations under paragraph (6).

(10) Article 5 of the Property (Northern Ireland) Order 1978 (NI 4) (power of Lands Tribunal to modify or extinguish impediments) shall not apply to a planning agreement.

Appeals

40B.¾ (1) Where the Department¾

(a) fails to give notice as mentioned in section 40A(7); or

(b) determines that a planning agreement shall continue to have effect without modifications,

the applicant may appeal to the planning appeals commission.

(2) For the purposes of an appeal under paragraph (1)(a), it shall be assumed that the Department has determined that the planning agreement shall continue to have effect without modification.

(3) An appeal under this Article shall be made by notice served within such period and in such manner as may be prescribed.

(4) Paragraphs (6) to (9) of Article 40A apply in relation to appeals to the planning appeals commission under this Article as they apply in relation to applications to the Department under that Article.

(5) Before determining the appeal the planning appeals commission shall, if either the applicant or the Department so wishes, afford to each of them an opportunity of appearing before and being heard by a person appointed by the planning appeals commission.

(6) The determination of an appeal by the planning appeals commission under this Article shall be final.".

(2) In Schedule 11 to the Land Registration Act (Northern Ireland) 1970 (c. 18) (matters requiring to be registered in the Statutory Charges Register) in entry 27 after sub-paragraph (g) there is inserted¾

"(gg) planning agreements under Article 40;".

Control over particular matters

Advertisements [j17]

21. In Article 2(2) of the principal Order (interpretation) in the definition of "advertisement"¾

(a) after "notice," there is inserted "awning, blind,";

(b) after "used," there is inserted "or designed"; and

(c) after "use" there is inserted "and anything else principally used, or designed or adapted principally for use".

Building preservation notices [j22]

22.¾ (1) After Article 42 of the principal Order (list of buildings of special architectural or historic interest) there is inserted¾

"Temporary listing: building preservation notices

42A.¾ (1) If it appears to the Department that a building which is not a listed building¾

(a) is of special architectural or historic interest; and

(b) is in danger of demolition or of alteration in such a way as to affect its character as a building of such interest,

it may serve on the owner and occupier of the building a notice (in this Order referred to as a "building preservation notice").

(2) A building preservation notice served by the Department shall¾

(a) state that the building appears to the Department to be of special architectural or historic interest and that it is considering including it in a list complied under Article 42; and

(b) explain the effect of paragraphs (3) to (5) and Article 42C.

(3) A building preservation notice¾

(a) shall come into force as soon as it has been served on both the owner and occupier of the building to which it relates; and

(b) subject to paragraph (4), shall remain in force for 6 months from the date when it is served or, as the case may be, last served.

(4) A building preservation notice shall cease to be in force if the Department¾

(a) includes the building in a list complied under Article 42, or

(b) notifies the owner and the occupier of the building to which the notice relates in writing that it does not intend to do so.

(5) While a building preservation notice is in force with respect to a building, the provisions of this Order (other than Article 49) shall have effect in relation to the building as if it were a listed building.

(6) Following a notification by the Department under paragraph (4)(b) no further building preservation notice in respect of the building shall be served by the Department within the period of 12 months beginning with the date of the notification.

Temporary listing in urgent cases

42B.¾ (1) If it appears to the Department to be urgent that a building preservation notice should come into force, it may, instead of serving the notice on the owner and occupier of the building, affix the notice conspicuously to some object on the building.

(2) The affixing of a notice under paragraph (1) shall be treated for all the purposes of Article 42A, this Article, Article 42C and Articles 45 to 47 and Schedule 1 as service of the notice.

(3) A notice which is so affixed must explain that by virtue of being so affixed it is treated as being served for those purposes.

Lapse of building preservation notices

42C.¾ (1) This Article applies where a building preservation notice ceases to be in force by virtue of¾

(a) the expiry of the 6 month period mentioned in paragraph (3)(b) of Article 42A; or

(b) the service of a notification by the Department under paragraph (4)(b) of that Article.

(2) The fact that the notice has ceased to be in force shall not affect the liability of any person to be prosecuted and punished for an offence under Article 44 or 72 (as applied by Article 77(6)) committed with respect to the building while it was in force.

(3) Any proceedings on or arising out of an application for listed building consent with respect to the building made while the notice was in force and any such consent granted while it was in force shall lapse.

(4) Any listed building enforcement notice served by the Department while the building preservation notice was in force shall cease to have effect.

(5) Any proceedings relating to a listed building enforcement notice served by the Department while the building preservation notice was in force under Articles 77 and 78 shall lapse.

(6) Notwithstanding paragraph (4), Article 74(1) and (2) (as applied by Article 77(6)) shall continue to have effect as respects any expenses incurred by the Department, owner or occupier as mentioned in that Article and with respect to any sums paid on account of such expenses.".

(2) In paragraph (1)(d) of Article 121 of that Order (rights of entry) after "of" is inserted "affixing a notice in accordance with Article 42B(1) or".

(3) After Article 67 of the Planning (Northern Ireland) Order 1972 (compensation for loss due to stop notice) there is inserted¾

"Compensation for loss or damage caused by service of building preservation notice

67A.¾ (1) This Article applies where a building preservation notice ceases to have effect without the building having been included in a list compiled by the Department under Article 42 of the Planning Order.

(2) Any person who at the time when the notice was served had an estate in the building shall, on making a claim to the Department within the prescribed time and in the prescribed manner, be entitled to be paid compensation by the Department in respect of any loss or damage directly attributable to the effect of the notice.

(3) The loss or damage in respect of which compensation is payable under paragraph (2) shall include a sum payable in respect of any breach of contract caused by the necessity of discontinuing or countermanding any works to the building on account of the building preservation notice being in force with respect to it.".

Trees [j16]

23.¾ (1) In Article 65 of the principal Order (tree preservation orders)¾

(a) in paragraph (1)(a) after "lopping" there is inserted ", uprooting, wilful damage";

(b) after paragraph (1) there is inserted¾

"(1A) A tree preservation order may be made so as to apply, in relation to trees to be planted pursuant to any such conditions as are mentioned in Article 64(a), as from the time when those trees are planted.

(1B) A tree preservation order shall not take effect until it is confirmed by the Department and the Department may confirm any such order either without modification or subject to such modifications as it considers expedient.";

(c) for paragraph (2) there is substituted¾

"(2) The Department may make regulations as to the form of tree preservation orders and the procedure to be followed in connection with the making and confirmation of such orders; and the regulations may, in particular, make provision as follows¾

(a) that, before a tree preservation order is confirmed by the Department, notice of the making of the order shall be given to the owners and occupiers of land affected by the order and to such other persons, if any, as may be specified in the regulations;

(b) that objections and representations with respect to the order, if duly made in accordance with the regulations, shall be considered before the order is confirmed by the Department; and

(c) that copies of the order, when confirmed by the Department, shall be served on such persons as may be specified in the regulations.";

(d) in paragraph (3), after the words "cutting down,", where they twice appear, is inserted "uprooting,".

(2) After that Article there is inserted¾

"Provisional tree preservation orders

65A.¾ (1) If it appears to the Department that a tree preservation order proposed to be made by it should take effect immediately without previous confirmation, it may include in the order as made by it a direction that this Article shall apply to the order.

(2) Notwithstanding Article 65(1), an order which contains such a direction¾

(a) shall take effect provisionally on such date as may be specified in it; and

(b) shall continue in force by virtue of this Article until¾

(i) the expiration of a period of 6 months beginning with the date on which the order was made; or

(ii) the date on which the order is confirmed,

whichever first occurs.

Replacement of trees

65B.¾ (1) If any tree in respect of which a tree preservation order is for the time being in force¾

(a) is removed, uprooted or destroyed in contravention of the order; or

(b) except in the case of a tree to which the order applies as part of a woodland, is removed, uprooted or destroyed or dies at a time when its cutting down or uprooting is authorised only by virtue of Article 65 on the grounds that it is dying or dead or has become dangerous,

it shall be the duty of the owner of the land to plant another tree of an appropriate size and species at the same place as soon as he reasonably can.

(2) The duty imposed by paragraph (1) does not apply to an owner if on application by him the Department dispenses with it.

(3) In respect of trees in a woodland it shall be sufficient for the purposes of this Article to replace the trees removed, uprooted or destroyed by planting the same number of trees¾

(a) on or near the land on which the trees removed, uprooted or destroyed stood; or

(b) on such other land as may be agreed between the Department and the owner of the land,

and in such places as may be designated by the Department.

(4) In relation to any tree planted pursuant to this Article, the relevant tree preservation order shall apply as it applied to the original tree.

(5) The duty imposed by paragraph (1) on the owner of any land shall attach to the person who is from time to time the owner of the land.".

(3) In Article 66 of the principal Order (penalties for contravention of tree preservation orders)¾

(a) in paragraph (1)¾

(i) after the words "cuts down" is inserted ", uproots";

(ii) after the words "a tree, or" is inserted "wilfully damages,";

(iii) for the words "and liable" to the end of that paragraph there is substituted¾

"and liable¾

(a) on summary conviction, to a fine not exceeding £20,000;

(b) on conviction on indictment, to a fine;

(b) after paragraph (1) there is inserted¾

"(1A) In determining the amount of any fine to be imposed on a person convicted of an offence under paragraph (1), the court shall in particular have regard to any financial benefit which has accrued or appears likely to accrue to him in consequence of the offence.";

(c) in paragraph (2) for the words "level 3" substitute "level 4";

(d) paragraph (3) is omitted.

(4) After that Article there is inserted¾

"Preservation of trees in conservation areas

66A.¾ (1) Subject to the provisions of this Article and Article 66B, any person who, in relation to a tree to which this Article applies, does any act which might by virtue of Article 65(1)(a) be prohibited by a tree preservation order shall be guilty of an offence.

(2) Subject to Article 66B, this Article applies to any tree in a conservation area in respect of which no tree preservation order is for the time being in force.

(3) It shall be a defence for a person charged with an offence under paragraph (1) to prove¾

(a) that he served notice of his intention to do the act in question (with sufficient particulars to identify the tree) on the Department; and

(b) that he did the act in question¾

(i) with the consent of the Department; or

(ii) after the expiry of the period of 6 weeks from the date of the notice but before the expiry of the period of 2 years from that date.

(4) Article 66 shall apply to an offence under this Article as it applies to a contravention of a tree preservation order.

Power to disapply Article 66A

66B.¾ (1) The Department may by regulations direct that Article 66A shall not apply in such cases as may be specified in the regulations.

(2) Regulations under paragraph (1) may, in particular, be framed so as to exempt from the application of that Article cases defined by reference to all or any of the following matters¾

(a) acts of such descriptions or done in such circumstances or subject to such conditions as may be specified in the regulations;

(b) trees in such conservation areas as may be so specified;

(c) trees of a size or species so specified; or

(d) trees belonging to persons or bodies of a description so specified.

(3) Regulations under paragraph (1) may in particular exempt from the application of Article 66A cases exempted from Article 65 by paragraph (3) of that Article.".

(5) In Article 115 of the principal Order¾

(a) for paragraph (2) there is substituted¾

"(2) A tree preservation order made by virtue of this Article shall not take effect until the first occurrence of a relevant event.

(2A) For the purposes of paragraph (2), a relevant event occurs in relation to any land if it ceases to be Crown land or becomes subject to a private estate.

(2B) A tree preservation order made by virtue of this Article¾

(a) shall not require confirmation under Article 65 until after the occurrence of the event by virtue of which it takes effect; and

(b) shall by virtue of this paragraph continue in force until¾

(i) the expiration of the period of 6 months beginning with the occurrence of that event; or

(ii) the date on which the order is confirmed,

whichever first occurs.".

(6) In Article 66 of the Planning (Northern Ireland) Order 1972 (NI 17) (compensation in respect of tree preservation orders)¾

(a) for paragraph (1) there is substituted¾

"(1) A tree preservation order may make provision for the payment by the Department, subject to such exceptions and conditions as may be specified in the order, of compensation in respect of loss or damage caused or incurred in consequence¾

(a) of the refusal of any consent required under the order; or

(b) of the grant of any such consent subject to conditions.";

(b) for paragraph (3) there shall be substituted¾

"(3) Except in so far as may be otherwise provided by any tree preservation order, any question of disputed compensation under paragraph (1) shall be referred to and determined by the Lands Tribunal.".

Miscellaneous

Status of development plans [j12]

24. In Article 4 of the principal Order (development plans) after paragraph (2) there is inserted¾

"(2A) Where, in making any determination under this Order, regard is to be had to the development plan, the determination shall be made in general conformity with the plan unless material considerations indicate otherwise".

Planning Appeals Commission [j110]

25.¾ (1) In paragraph (2)(a) of Article 110 of the principal Order (Planning Appeals Commission) after "chief commissioner" is inserted "and deputy chief commissioner".

(2) After paragraph (5) of Article 111 of that Order (procedure of appeals commission) is inserted¾

"(5A) Rules under paragraph (5) which provide for the taking of any decision may, in particular, provide for that decision to be taken by a panel of not fewer than 4 commissioners.

(5B) Rules under paragraph (5) which provide for the making of any report may, in particular, provide for that report to be made¾

(a) by a panel of commissioners;

(b) by a single commissioner.".

Grants for research and bursaries [j119]

26. In paragraph (1) of Article 119 of the principal Order (grants for research and bursaries) after "physical" there is inserted "or built".

Grants to bodies providing assistance in relation to certain development proposals [j120]

27. In Article 120 of the principal Order (grants to bodies providing assistance in relation to certain development proposals)¾

(a) after paragraph (1) there is inserted¾

"(1A) The Department may make grants to any body of persons (not being a body carried on for profit) which appears to the Department to have among its principal objectives furthering the preservation, conservation and regeneration of historic buildings.";

(b) in paragraph (2), after "(1)" there is inserted "or (1A)".

Planning register [j19]

28. In paragraph (1) of Article 124 of the principal Order (planning register) after sub-paragraph (i) there shall be added¾

"(j) notices under Article 66A;

(k) breach of condition notices;

(l) certificates under Article 83A or 83B;

(m) building preservation notices.".

Home loss payments following planning blight [j29]

29. In Article 30 of the Land Acquisition and Compensation (Northern Ireland) Order 1973 (NI 21)¾

(a) after paragraph (3) there is inserted¾

"(3AA) For the purposes of this Article a person shall be deemed to have been displaced from a dwelling in consequence of the compulsory acquisition of an interest therein if the acquisition is in pursuance of the service by him of a blight notice, within the meaning of Article 2(2) of the Planning Blight (Compensation) (Northern Ireland) Order 1981, served on or after the date of the coming into operation of section 29 of the Planning (Amendment) Act (Northern Ireland) 2002.";

(b) in paragraph (10), after the word "Article" there is inserted "except paragraph (3AA)".

Minor and consequential amendments and repeals [j24]

30.¾ (1) The statutory provisions set out in Schedule 1 shall have effect subject to the minor and consequential amendments specified in that Schedule.

(2) The statutory provisions set out in the first column of Schedule 2 are repealed to the extent set out in the second column of that Schedule.

Commencement [j31]

31.¾ (1) The preceding provisions of this Act shall come into operation on such day or days as the Department of the Environment may by order appoint.

(2) An order under subsection (1) may contain such transitional provisions and savings as the Department of the Environment considers appropriate in connection with the order.

Short title [j30]

32. This Act may be cited as the Planning (Amendment) Act (Northern Ireland) 2002.

Schedules

Schedule 1

Minor and consequential amendments [s001]

The Planning (Northern Ireland) Order 1972 (NI 17)

1. In Article 67¾

(a) in paragraph (1) for the words from "so much" to the end substitute "the prohibition of such of the activities prohibited by the stop notice as cease to be relevant activities";

(b) in paragraph (2)(b) for the words from "the matters" to the end substitute "any activity the carrying out of which is prohibited by the stop notice ceases to be a relevant activity"; and

(c) in paragraph (2)(c) omit the words from "or for its retention" to "granted".

The Planning (Northern Ireland) Order 1991 (NI 11)

2. In Article 2(2)¾

(a) after the definition of "agriculture" insert¾

""breach of condition notice" has the meaning assigned to it by Article 76A;

"breach of planning control" has the meaning assigned to it by Article 67A",

(b) at the end of the definition of "buildings or works" insert "and references to the removal of buildings or works include demolition of buildings";

(c) for the definition of "building operations" substitute¾

""building operations" has the meaning assigned to it by Article 11;

"building preservation notice" has the meaning assigned to it by Article 42A(1);";

(d) after the definition of "owner" insert¾

""planning contravention notice" has the meaning assigned to it by Article 67C(1)", and;

(e) in the definition of "planning permission" omit the words from "and in construing" to the end.

3. After Article 28 insert¾

"Planning permission for development already carried out

28A.¾ (1) On an application made to the Department, the planning permission which may be granted includes planning permission for development carried out before the date of the application.

(2) Paragraph (1) applies to development carried out¾

(a) without planning permission;

(b) in accordance with planning permission granted for a limited period; or

(c) without complying with some condition subject to which planning permission was granted.

(3) Planning permission for such development may be granted as to have effect from¾

(a) the date on which the development was carried out; or

(b) if it was carried out in accordance with planning permission granted for a limited period, the end of that period.".

4. Omit Article 29.

5. In Article 32(6) for "28" substitute "28A".

6. In Article 34¾

(a) in paragraph (1)¾

(i) after "permission granted" is inserted "or deemed to be granted";

(ii) after "shall be granted" is inserted "or, as the case may be, deemed to be granted,";

(iii) after "shall be granted" is inserted "or, as the case may be, deemed to be granted";

(b) in paragraph (3)(d), for the words from "granted" to the end substitute "granted for development carried out before the grant of that permission".

7. In Article 39, for paragraph (3) substitute¾

"(3) The planning permission which may be granted by an order under this Article includes planning permission, subject to such conditions as may be specified in the order, for development carried out before the date on which the order was made; and planning permission for such development may be granted so as to have effect from¾

(a) the date on which the development was carried out; or

(b) if it was carried out in accordance with planning permission granted for a limited period, the end of that period.".

8. Omit Article 41.

9. In Article 69¾

(a) in paragraph (2)(a) omit "in writing";

(b) in paragraph (10) for "Article 72(5)" substitute "Article 72".

10. In Article 70(2) for "informality" substitute "misdescription".

11. In Article 73¾

(a) in paragraph (4)(b) for "period allowed for compliance with that" substitute "period for compliance with the";

(b) in paragraph (4)(d) for the words from "included" to the end substitute "relevant activities";

(c) in paragraph (9) for "68(5)" substitute "68".

12. For Article 75 substitute¾

"Effect of planning permission, etc., on enforcement or breach of condition notice

75.¾ (1) Where, after the service of¾

(a) a copy of an enforcement notice; or

(b) a breach of condition notice,

planning permission is granted for any development carried out before the grant of that permission, the notice shall cease to have effect so far as inconsistent with that permission.

(2) Where after a breach of condition notice has been served any condition to which the notice relates is discharged, the notice shall cease to have effect so far as it requires any person to secure compliance with the condition in question.

(3) The fact that an enforcement notice or breach of condition notice has wholly or partly ceased to have effect by virtue of this Article shall not affect the liability of any person for an offence in respect of a previous failure to comply, or secure compliance, with the notice.".

13. In Article 76¾

(a) in paragraphs (1)(a), (4)(b) and (5) for "demolition", in each place where it occurs, substitute "removal";

(b) in paragraphs (3), (4) and (5) for "demolished", in each place where it occurs, substitute "removed"; and

(c) in paragraph (5) for "Article 72(1) to (4)" substitute "Article 72(2)".

14. In Article 77¾

(a) in paragraph (1)(b) the words "within such period as may be so specified" are omitted;

(b) in paragraph (6) for "68(5), (12), (14) and (15) and" substitute "68(2) and (3), 68B,".

15. In Article 78, in paragraph (1)(f) for "68(5)" substitute "68(2) and (3)".

16. In Article 112, in paragraph (2)(b)¾

(a) in head (ii) for "29" substitute "12";

(b) in head (iv) after "39" insert "or 40";

(c) in head (v) for "68(9), 72(5), 75" substitute "67C, 68A(4), 71, 76A";

(d) in head (vi) after "83," insert "83A or 83B,".

17.¾ (1) In Article 113, in paragraph (1)(b) after "VI" insert "except Articles 84A and 84B".

(2) In paragraph (3) of that Article for "no enforcement notice shall be issued under Article 68" substitute "no notice shall be issued or served or any application made under any of the provisions of Articles 67C, 68, 68B, 73, 76A, 76B".

18. In Article 114¾

(a) in paragraph (1)(b) for "determination under Article 41 or 48" substitute "a determination under Article 48 or a certificate under Article 83B";

(b) in paragraphs (2) and (7) after "consent" insert ", certificate";

(c) for paragraph (5) substitute¾

"(5) Any application made by virtue of this Article for a certificate under Article 83B shall be determined as if the land were not Crown land.".

19. In Article 122¾ .

(a) in paragraph (1)(a) after "commission" insert "and state the purpose of his entry";

(b) in paragraph (3), for "premises" substitute "land".

20. In Article 128, in paragraph (2)¾

(a) in sub-paragraph (b) for "72(1)" substitute "72(2)";

(b) in sub-paragraph (c) for "72(5)(a)" substitute "72(5)".

Schedule 2

Repeals [s002]

PLANNING (AMENDMENT) BILL

___________

DRAFT EXPLANATORY AND FINANCIAL MEMORANDUM

INTRODUCTION

1. This Explanatory and Financial Memorandum has been prepared by the Department of the Environment (DOE) in order to assist the reader of the Bill and to help inform debate on it. It does not form part of the Bill and has not been endorsed by the Assembly.

2. The Memorandum needs to be read in conjunction with the Bill. It is not, and is not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.

BACKGROUND AND POLICY OBJECTIVES

3. Prior to devolution, the Department published a consultation paper entitled

"Proposals for Amendments to Planning Legislation in Northern Ireland". The paper proposed introducing legislation to strengthen and enhance the Department's existing planning enforcement powers and to give primacy to development plans in the determination of planning applications. Since devolution, the Department has carefully reviewed and considered the issues involved and remains of the view that such legislative change is still appropriate.

4. The existing legislation is contained in the Planning (Northern Ireland) Order 1972, the Planning (Northern Ireland) Order 1991 and the Caravans Act (Northern Ireland) 1963.

5. The proposed Bill will:

(i) simplify, streamline and strengthen the Department's existing enforcement powers and introduce some new enforcement powers. These include: -

planning contravention notices;

breach of condition notices; and,

an express power to apply to the court for an injunction to prevent a threatened breach of planning control.

These enforcement powers, modified to the extent that is described in the commentary on clauses section below, will extend to Tree Preservation Orders, Listed Buildings, buildings in Conservation Areas and Hazardous Substances. New measures to afford greater protection to trees are also included.

(ii) improve control over development by: -

introducing a new procedure for modifying/discharging planningagreement, and introducing a right of appeal against the refusal of an application to modify/discharge an agreement;

introducing Building Preservation Notices to enable the Department to respond quickly to protect buildings at risk;

funding, in certain circumstances, for bodies, which may include Building Preservation Trusts, to enable the acquisition of buildings considered to be at risk;

broadening the definition of "advertisement" to ensure that modern forms of outdoor advertising are subject to advertisement control;

introducing a regulation making power to allow the scope of regulations requiring environmental assessment under EC Directive Reference 85/337/EEC to go beyond the EC minimum requirements;

empowering the Department, in certain circumstances, to decline to determine applications if, within the preceding 2 years, a similar proposal had been dismissed on appeal by the Planning Appeals Commission;

empowering the Planning Appeals Commission to dismiss an appeal if it appears that the appellant is causing undue delay;

(iii) giving prime importance to Development Plans in the determination of planning applications; and,

(iv) providing the Planning Appeals Commission with greater operational flexibility.

CONSULTATION

6. In March 1999, the Department issued a Consultation Paper entitled "Proposals for Amendments to Planning Legislation in Northern Ireland". The paper was given wide circulation to district councils, environmental groups, professional bodies, government departments and agencies, academics, residents' groups, businesses and others.

7. In accordance with the requirement for consultation with the Northern Ireland Human Rights Commission, Civic Forum and Equality Commission, which did not exist when the 1999 public consultation first took place, these consultees were consulted on the proposals and no comments were received.

8. On a number of occasions throughout 2001/02, officials appeared before the Environment Committee to explain the purpose and content of the proposed Bill. While the Committee was broadly content with the measures contained in the Bill, it raised concerns about the absence of a specific provision to make it an offence for anyone to commence development without planning permission, or for introducing third party rights of appeal. The Department explained that it viewed both issues as being fundamental to the planning process in Northern Ireland, and any change would represent a radical departure from existing planning law. The Department further explained that it consider that both issues required further research, policy development, and possibly, public consultation and, in this context, was of the opinion that neither matter can be taken forward within the current Planning (Amendment) Bill.

Options considered

9. The proposals were drawn up prior to devolution in response to a request from the House of Commons Northern Ireland Affairs Committee that the Department replicate the new provisions introduced in GB by the Planning and Compensation Act 1991.

10. In addition to largely meeting the requirements of the Northern Ireland Affairs Committee, the Department also took the opportunity to look at other provisions to strengthen and improve the planning system in Northern Ireland. These include the introduction of Building Preservation Notices, a power to fund bodies, including Building Preservation Trusts, and reforms to the way in which the Planning Appeals Commission operates.

OVERVIEW

11. The Bill has [32] clauses and [2] Schedules.

COMMENTARY ON CLAUSES

New enforcement powers

Clause 1 - Planning Contravention Notice

This clause provides for the issue of a Planning Contravention Notice, the purpose of which is to strengthen the Department's power to obtain information prior to taking enforcement action, to encourage dialogue with any persons thought to be in breach of planning control and to secure their co-operation in taking corrective action. Failure to comply with such a Notice within 21 days of its service would be an offence, liable on summary conviction, to a fine not exceeding level 3 on the standard scale (currently £1,000). In addition any person who makes a false or misleading statement in respect of a notice will be liable on summary conviction to a fine not exceeding level 5 on the standard scale (currently £5,000). Failure to comply with a Notice could also affect any future entitlement to compensation payable in connection with Stop Notices.

Clause 2 - Enforcement of Conditions

This clause provides for the issue of a Breach of Condition Notice for breaches of conditions attached to a planning permission. It may be served if there is clear evidence that a planning condition has not been complied with. Non-compliance with a Breach of Condition Notice shall be an offence liable on summary conviction to a fine not exceeding level 3 on the standard scale (currently £1,000).

Clause 3 - Injunctions

This clause will give the Department an express power to apply to the Courts for an injunction to prevent any actual or threatened breach of planning control. This power will also apply in relation to unauthorised works to a listed building, breaches of a Tree Preservation Order and certain acts in respect of trees in a Conservation Area; and, any actual or apprehended breach of a Hazardous Substances Contravention Order. The intention is to integrate injunctions into the range of enforcement powers available to the Department so that they may be used, whether or not other enforcement powers have been, or are intended to be, used. Rules of Court may provide for an injunction to be granted against a person whose identity is unknown.

Other changes relation to enforcement

Clause 4 - Time Limits

This clause simplifies the rules regarding the time period within which action may be taken in respect of breaches of planning control, by establishing two different limitation periods for enforcement action: -

• The four-year rule: four years is the time allowed to the Department to take enforcement action where the breach comprises either operational development (the carrying out of unauthorised building, engineering, mining or other operations), or the change of use to use as a single dwelling house.

• The ten-year rule: this is the time allowed for all other breaches of planning control, and represents a significant change from the current position. Under the Planning (NI) Order 1991, an unauthorised change of use (other than to use as a single dwelling house) was immune from enforcement action only if it had been undertaken before 26 August 1974. Upon coming into operation, immunity from enforcement action will automatically be conferred on all breaches of planning control that occurred between 26 August 1974 and the date ten years prior to the Act becoming law, thereafter immunity will accrue on a rolling basis.

Clause 5 - Enforcement Notice

It is intended that this clause will reduce the legal complexity of the provisions that apply to the drafting, issue and service of enforcement notices, by minimising the possibility of some minor drafting error, legal or technical deficiency, resulting in a notice being quashed. The notice will still have to be sufficiently clear to enable any recipient to understand exactly what unauthorised use/work is alleged and what he/she is required to do to remedy this. It provides that an enforcement notice may be served on the current owner or occupier of the land to which the notice relates and on any other person with an estate in, the land. The provisions will provide the Department with flexibility to require only partial remedy of a breach of planning control where, at the time of enforcement, a total remedy is not considered necessary. This provisions will also allow for the withdrawal or variation of an enforcement notice, without prejudice to the Department's power to issue a further notice.

Clause 6 - Appeal against Enforcement Notice

This clause specifies revised grounds on which an appeal against an enforcement notice can be made and the procedures for making a valid appeal. It also provides that if an appeal against an enforcement notice includes a ground of appeal that planning permission ought to be granted for the development to which the notice relates or, as the case may be, that a condition or limitation alleged in the enforcement notice not to have been complied with ought to be discharged, it shall constitute a deemed planning application. The clause also requires the planning appeals commission to notify the appellant of the amount of the appropriate fee and to specify the period within which it must be paid. If the fee is not paid within that period then the appeal on the planning merits will lapse and the commission barred from considering or determining the deemed planning application.

Clause 7 - Offence for Non-Compliance with an Enforcement Notice

This clause will strengthen and clarify existing provisions concerning offences for not complying with an enforcement notice. The clause provides for an increase in the maximum level of fine, on summary conviction, from £5,000 to £20,000. It also allows, for the first time, for a person to be convicted on indictment for this type of offence. The courts when determining either level of fine shall, in particular, have regard to any financial benefit, which has accrued or appears likely to have accrued, in consequence of the offence. The clause also makes it clear that a person found guilty of an offence, and who continues not to comply with a notice, may be guilty of a further offence, and subsequently, of still further offences until there is compliance with a notice.

Clause 8 - Execution of Works

This clause strengthens the power of the Department to enter land and carry out works to ensure compliance with an Enforcement Notice. It also makes it an offence, punishable on summary conviction to a fine not exceeding level 3 on the standard scale (currently £1,000), to wilfully obstruct anyone authorised to carry out works.

Clause 9 - Stop Notices

This clause strengthens and clarifies the current Stop Notice provisions by enabling a Stop Notice to take effect within a shorter period than at present and, immediately, if necessary. To ensure parity with the increased penalties for contravention of an Enforcement Notice, this clause provides that: -

• until the Notice is complied with, further offences may be committed;

• the maximum level of fine for contravention of a Stop Notice will be increased from £5,000 to £20,000 on summary conviction;

• statute will allow, for the first time, for a person to be convicted on indictment for this type of offence; and,

• the courts will be required to take account of any benefits accrued or which appear likely to accrue as a result of the offence.

In certain circumstances compensation may be payable when a Stop Notice is quashed or withdrawn. Subsection (2) provides that no compensation is payable in respect of a stop notice for any activity which at the time when the notice is in force constitutes or contributes to a breach of planning control or in respect of any loss or damage if such loss or damage could have been avoided had information required under a Contravention Notice (see Clause 1), or Article 125 of the 1991 Order, been provided.

Clause 10 - Certificate of Lawful Use or Development

This clause abolishes the unsatisfactory situation whereby a development may be "unlawful" but "immune" from enforcement action, because the time period for taking such action has elapsed. Under this clause, a person will be able to apply to the Department for a Certificate to ascertain whether an existing use of buildings or other land, or operational development, or some activity in breach of a planning condition, is lawful. In the case of a proposed use or operational development, the grant of a Certificate would establish the lawfulness of the proposed use or operational development.

The onus for producing sufficient evidence to warrant the granting of a Certificate will rest firmly on the applicant. There will be a right of appeal against a refusal or failure to give a decision. Any person who makes a false or misleading statement in respect of procuring a Certificate will on summary conviction be liable to a fine not exceeding the statutory maximum or, on conviction on indictment, to imprisonment for a term not exceeding two years, or a fine, or both.

Clause 11 - Rights of Entry for Enforcement Purposes

This clause will allow officers of the Department to enter any land at all reasonable hours, on production of appropriate authority, for the purposes of investigating any alleged breach of planning control on that land or on immediately adjoining land.

The provisions of this clause are more closely tailored to the Department's needs in obtaining information, preparatory to taking formal enforcement action. When taken together with the new "planning contravention notice" (for which Clause 1 provides) the Department will have comprehensive powers to obtain essential information about any suspected or actual breach of control under Part VI of the 1991 Order.

Clause 12 - Listed Buildings

This clause provides for the following possible penalties for a person found guilty of an offence involving demolition, or alteration or extension of a listed building affecting its character: -

• to be given a term of imprisonment not exceeding 6 months or a fine not exceeding £20,000 or both; or

• imprisonment for not more than 2 years, or a fine.

The courts when determining either level of fine shall, in particular, have regard to any financial benefit, which has accrued or appears likely to be accrued, in consequence of the offence.

Clause 13 - Hazardous Substances

This clause provides that a person found guilty of an offence relating to hazardous substances will be liable on summary conviction to a fine not exceeding £20,000 or, on conviction on indictment, to a fine.

The courts when determining either level of fine shall, in particular, have regard to any financial benefit, which has accrued or appears likely to be accrued, in consequence of the offence.

It also allows for hazardous substances contravention notices to require only a partial remedy, if this is considered appropriate.

Clause 14 - Replacement of Trees

This clause replaces Article 82 of the 1991 Order and provides for revised enforcement measures in respect of the protection of trees that are subject to a Tree Preservation Orders (TPO) as follows: -

• A new power for the Department to enforce the duty to replace trees subject to a TPO;

• Sets out specific grounds of appeal against enforcement notices in relation to trees;

• A power for the Department to enter onto land to replant trees subject to a TPO, and to recover any costs incurred as a civil debt;

• A new duty on an owner to replace trees in a Conservation Area that are removed.

Control over development

Clause 15 - Demolition

This clause introduces an amendment to make it clear that all demolition should come within the meaning of development for planning purposes. However, for the time being, only buildings in Areas of Townscape Character and those buildings whose demolition is already subject to planning control, i.e. historic monuments, listed buildings and buildings in Conservation Areas, will be subject to this new regime. This will be achieved by specifying in a Departmental Direction under a new Article 11(2)(f) those buildings whose demolition does not come within the meaning of development for planning purposes and those buildings that do. The purpose of this is to avoid the possibility of a large number of planning applications for the demolition of relatively minor structures clogging up the planning process.

Clause 16 - Reversion to previous lawful use

This clause brings NI legislation into line with GB legislation by specifying that it is lawful to revert to a previous legal use following service of an enforcement notice or at the end of a temporary planning permission. At present in NI, technically such reversion requires planning permission.

Clause 17 - Power to Decline to Determine Applications

To prevent Developers using 'repeat applications' as a tactic this clause gives the Department power to decline to determine a planning application if, within the preceding 2 years, it had refused an application designated as a major one under the Article 31 procedure of the Planning (NI) Order 1991, or the Planning Appeals Commission has dismissed an appeal for a similar proposal, and there has been no material change in circumstances.

Clause 18 - Assessment of Environmental Effects

Under EC Directive 85/337/EEC there is a requirement to make regulations which set out the classes of development for which an environmental assessment may be required. This requirement was implemented by the Planning (Environmental Impact Assessment) Regulations (Northern Ireland) 1999. This clause makes specific primary provision to allow new regulations to go beyond the environmental assessment provisions of the Directive. For example, in England and Wales the Regulations were extended to include wind generators, motorway service areas and coastal protection works in the classes of development for which an environmental assessment may be required.

Clause 19 - Dismissal of Appeal in cases of undue Delay

To prevent time wasting appeals and appeals lodged for tactical purposes this clause will give the Planning Appeals Commission the power to dismiss an appeal if it appears that the appellant is causing undue delay in its progress.

Clause 20 - Planning Agreements

This clause amends the application of planning agreements and introduces provisions relating to the modification or discharge of an agreement. A party to a planning agreement will be enabled by this clause to apply to the Department for modification and discharge of an obligation with a right of appeal to the Planning Appeals Commission against the Department's determination.

The clause also creates a new offence for the wilful obstruction of any person authorised to enter land to carry out works required by a planning agreement.

Control over particular matters

Clause 21 - Advertisements

This clause will broaden the definition of "advertisement" to include matters such as rotating poster panels, advertisements on permanently fixed blinds or canopies on business premises etc. This is to ensure that certain modern forms of outdoor advertising are subject to advertisement control.

Clause 22 - Building Preservation Notices

This clause introduces Building Preservation Notices for the temporary listing of buildings, commonly referred to as 'spot-listing'. The introduction of these notices will enable the Department to respond quickly to protect buildings at risk.

Clause 23 - Trees

Together with Clause 14, which deals with enforcement of duties in relation to the replacement of trees, this clause provides a major overhaul of the Department's powers in respect of the protection of trees and Tree Preservation Orders (TPOs) as follows: -

• A new duty to replace trees subject to a TPO that are removed. The existing TPO would automatically apply to the new trees planted as it did to the original trees, thereby providing that the removal of trees in itself does not automatically render the land suitable for development ;

• Higher penalties for breaches of TPOs. This involves an increase from £5,000 to £20,000 in the maximum level that can be imposed on summary conviction by a court. There is no limit to a fine that can be imposed on conviction on indictment. The Courts when determining either level of fine shall, in particular, have regard to any financial benefit, which has accrued or appears likely to be accrued, in consequence of the offence;

• A new provision in respect of the protection of trees in a Conservation Area; and

• A new provision in respect of compensation payable where consent to fell trees is refused. This will allow restrictions to be imposed on compensation payable, in each TPO made under the new provision.

Miscellaneous

Clause 24 - Status of development plans

This clause gives prime importance to a Development Plan in the determination of planning applications. Its effect will be that the Development Plan will no longer be simply a consideration to which "regard" must be had; the planning decision itself will now have to be made in general conformity with the Plan, except where material considerations indicate otherwise. There is, therefore, a presumption in favour of development that accords with the Plan and a presumption against development that does not.

In all cases, the Development Plan is the starting point for the determination of planning decisions and its provisions prevail until material considerations indicate otherwise.

Clause 25 - Planning Appeals Commission

This clause specifies, for the first time, the post of Deputy Chief Commissioner. It also makes specific provision to allow rules of procedure to be made governing the number of Commissioners who will be required to make a decision on a planning appeal or to make a report to the Department on a Public Inquiry.

Clause 26 - Grants for research and bursaries

This clause extends an existing power to enable the Department to make grants for assisting establishments engaged in promoting or assisting research relating to, and education with respect to, the planning and design of the built environment in addition to the physical environment.

Clause 27 - Grants to bodies providing assistance in relation to certain development proposals

This clause provides the Department with powers to enable it to provide funding for bodies, which may include Building Preservation Trusts, in circumstances where such funding would not necessarily be confined to grant eligible work, for example, the acquisition of buildings considered to be at risk.

Clause 28 - Planning Register

In addition to those matters already listed in Article 124 of the Planning (NI) Order 1991, this clause requires the Department to keep registers available for public inspection detailing those notices that it issues relating to: -

tree preservation in conservation areas;

breach of condition notices;

certificates of lawfulness of existing use or development;

certificates of lawfulness of proposed use or development; and

building preservation notices

Clause 29 - Home Loss payments following planning blight

This clause has been included to correct an omission in the Home Loss Payments (Northern Ireland) Order1992 that only came to light in 1997. It will allow a home loss payment to be made to owner-occupiers who have served a blight notice on the Department under the provisions of the Planning Blight Compensation (Northern Ireland) Order 1981.

Clause 30 - Minor and consequential amendments and appeals

This clause makes provision for minor and consequential amendments to be made in Schedules 1 and 2 to the Bill.

Clause 31 - Commencement

This clause provides for certain provisions in the Bill to come into operation on such day or days as may be appointed by the Department and for transitional and saving provisions to be made.

Clause 32 - Short Title

This section gives the short title of the Act. This is the title by which the Act will be referred to.

Schedule 1: Minor and consequential amendments

This schedule makes minor and consequential amendments to the Planning (Northern Ireland) Order 1972 and The Planning (Northern Ireland) Order 1991, as required by the new provisions inserted by the Bill.

Schedule 2: Repeals

This schedule details those existing Articles of both the Planning (Northern Ireland) Order 1972 and the Planning (Northern Ireland) Order 1991 which are being repealed by this Bill.

financial effects of the bill

12. Although not considered to be significant, it is likely that there will be some marginal financial implications for the Department in introducing the main provisions in the Bill.

Effects on equal opportunity

13. The Bill will not unlawfully, unfairly or unjustifiably discriminate, directly or indirectly, against specified sections of the community.

human rights issues

14. The provisions of the Bill are compatible with Convention rights. The Human Rights Commission was consulted as part of the evaluation process and offered no comments.

Summary of the regulatory appraisal

15. DETINI has advised that, as the Bill will have no direct impact on employment and is unlikely to result in extra costs to business, a Regulatory Impact Assessment is not required.

SECRETARY OF STATE'S CONSENT

16. The Bill includes provisions to allow the Department to apply to the court for an Injunction, to create new offences and increase the level of fines and penalties. These are reserved matters under paragraph 9(b) of Schedule 3 to the Northern Ireland Act 1998 and the Secretary of State [has consented] under section 10(3)(b) of the Northern Ireland Act 1998 to the Assembly considering the Bill.

legislative competence

17. The Minister of Environment has made the following statement under section 9 of the Northern Ireland Act 1998:

"In my view the Planning (Amendment) Bill would be within the legislative competence of the Northern Ireland Assembly."

LETTER FROM:
THE MINISTER DEPARTMENT OF THE ENVIRONMENT
TO THE SECRETARY OF STATE FOR NORTHERN IRELAND

21 May 2002

As Minister of the Environment, I am writing to seek your consent to the consideration by the Assembly of certain reserved matters in the above Bill, which I hope to introduce to the Assembly in June 2002.

The Bill will introduce legislation to strengthen and enhance the Department's existing planning enforcement powers, and give primacy to development plans in the determination of planning applications. In this respect, it follows the enforcement provisions introduced by the Planning and Compensation Act 1991 in England, Scotland and Wales.

The attached Explanatory and Financial Memorandum provides fuller details of the proposed measures. You will note in particular that the proposed measures create new offences and increase levels of fines in respect of:-

new offences:

Planning Contravention Notice (clause 1)

Non-compliance with a Planning Contravention Notice within 21 days of service would be an offence, liable on summary conviction, to a fine not exceeding level 3 on the standard scale (currently £1,000). In addition, any person who makes a false or misleading statement in respect of a notice will be liable on summary conviction to a fine not exceeding level 5 on the standard scale (currently £5,000).

Breach of Condition Notice (clause 2)

Non-compliance with a Breach of Condition Notice within the timescale set out in the Notice shall be an offence liable on summary conviction to a fine not exceeding level 3 on the standard scale (currently £1,000).

Executive of Works (clause 8)

This clause makes it an offence, punishable on summary conviction to a fine not exceeding level 3 on the standard scale (currently £1,000), to wilfully obstruct anyone authorised to enter land and carry out works to ensure compliance with an Enforcement Notice.

Certificate of Lawful Use/Development (clause 10)

Under this clause, any person who makes a false or misleading statement in respect of procuring a Certificate will, on summary conviction, be liable to a fine not exceeding the statutory maximum or, on conviction on indictment, to imprisonment for a term not exceeding two years, or a fine, or both.

Planning Agreements (clause 20)

The clause will create a new offence for the wilful obstruction of any person authorised to enter land to carry out works required by a planning agreement.

Tree Preservation Order (clause 23)

This clause provides for, amongst other things relating to tree preservation orders, the preservation of trees in conservation areas. It creates a new offence for any person who does any act affecting trees in a conservation area that might be prohibited by a tree preservation order.

increases in levels of fine

Offence for non-compliance with an Enforcement Notice (clause 7)

This clause provides for an increase in the maximum level of fine for failing to comply with an Enforcement Notice, from £5,000 to £20,000 on summary conviction. It also allows, for the first time, for a person to be convicted on indictment for this type of offence. The courts when determining either level of fine shall, in particular, have regard to any financial benefit, which has accrued or appears likely to have accrued, in consequence of the offence. This clause also makes it clear that a person found guilty of an offence, and who continues not to comply with an Enforcement Notice, may be guilty of a further offence, and subsequently, of still further offences until there is compliance with a Notice.

Stop Notices (clause 9)

This clause provides for an increase in the maximum level of fine for failing to comply with a Stop Notice, from £5,000 to £20,000 on summary conviction. It also allows, for the first time, for a person to be convicted on indictment for this type of offence. The courts when determining the level of fine shall, in particular, have regard to any financial benefit, which has accrued or appears likely to have accrued, in consequence of the offence. This clause also makes clear that a person found guilty of an offence, and who continues not to comply with a Stop Notice, may be guilty of a further offence, and subsequently, of still further offences until there is compliance with a Notice.

Listed Buildings (clause 12)

This clause provides for the following possible penalties for a person found guilty of an offence involving demolition of a listed building or works to alter or extend a listed building thereby affecting its character:-

• to be given a term of imprisonment not exceeding 6 months or a fine not exceeding £20,000 or both; or

• imprisonment for not more than 2 years, or a fine.

The courts when determining either level of fine shall, in particular, have regard to any financial benefit, which has accrued or appears likely to be accrued, in consequence of the offence.

Hazardous Substances (clause 13)

This clause provides that a person found guilty of an offence relating to hazardous substances would be liable on summary conviction to a fine not exceeding £20,000 or, on conviction on indictment, to a fine.

The courts when determining either level of fine shall, in particular, have regard to any financial benefit, which has accrued or appears likely to be accrued, in consequence of the offence.

Trees (clause 23)

Together with Clause 14, which deals with enforcement of duties in relation to the replacement of trees, this clause provides a major overhaul of the Department's powers in respect of the protection of trees and Tree Preservation Orders (TPOs). Amongst other changes it provides for higher penalties for breaches of TPOs. This involves an increase from £5,000 to £20,000 in the maximum level that can be imposed on summary conviction by a court. There is not limit to a fine that can be imposed on conviction on indictment. The Courts when determining either level of fine shall, in particular, have regard to any financial benefit, which has accrued or appears likely to be accrued, in consequence of the offence.

POWER TO APPLY FOR INJUNCTIONS

Injunction (clause 3)

This clause will give the Department an express power to apply to the Court for an injunction to prevent any actual or threatened breach of planning control. This power will also apply in relation to unauthorised works to a listed building, breaches of a Tree Preservation Order and certain acts in respect of trees in a Conservation Area, or any actual or apprehended breach of a Hazardous Substances Contravention Order. Rules of Court may provide for an injunction to be granted against a person whose identity is unknown.

All of the offences and increases in levels of fine identified above, plus the power to apply to the Court for an Injunction, are features of existing planning legislation in England, Scotland and Wales.

Since these are reserved matters under paragraph 9(b) of Schedule 3 to the Northern Ireland act 1998, it is necessary to seek your consent under section 8 of the Northern Ireland Act 1998 to the consideration of the Bill by the Assembly.

In all other respects, the provisions in the Bill are considered to be within the legislative competence of the Assembly, and I propose to provide a statement under Section 9 of the Northern Ireland Act 1998 to this effect.

Finally, you may wish to note that the Assembly Environment Committee, and others, have suggested the setting of higher levels of fines to act as an even stronger deterrent to breaches of planning control, and the creation of a new offence and associated penalties in respect of commencing development without lawful permission. The latter is a feature of planning law in the Republic of Ireland, but does not exist in any UK jurisdiction. The former would, of course, take Northern Ireland beyond parity with England and Wales. I have given no commitment to the Environment Committee or the Assembly to introduce such provisions, and have not yet discussed either request with my colleagues in the Executive Committee. I have not, therefore, included provisions in this Bill in respect of these issues.

By way of additional context, I understand that the Department of Transport, Local Government and the Regions intends to issue a consultation paper on a review of planning enforcement procedures, including the level of fines, in June 2002. This paper, will I understand seek comments on the appropriateness or otherwise of the current levels of fines that can be imposed for breaches of planning control.

I am, however, conscious that amendments may be tabled during the passage of the Bill to introduce such provisions, and that they might find widespread support amongst Assembly Members. I am not asking you to consider firm legislative proposals at this time, but I would welcome the opportunity to discuss these issues with you at the earliest possible opportunity. I have asked my Private Office to contact yours to make the arrangements.

DERMOT NESBITT MLA
Minister of the Environment

ANNEX 11

LETTER FROM:
COMMITTEE FOR THE ENVIRONMENT

13 June 2002

26 District Councils
Queen's University of Belfast
University of Ulster
Royal Town Planning Institute
Ulster Architectural Heritage Society
Historic Buildings Council
Royal Society for the Protection of Birds
NI Environment Link
Planning Appeals Commissions
Confederation of British Industry
Construction Employers Federation
Hearth Revolving Fund
The Woodlands Trust
Robert Turley Associates Ltd
Royal Institute of Chartered Surveyors
Royal Society of Ulster Architects

The Planning (Amendment) Bill was formally introduced to the Northern Ireland Assembly on 10 June 2002. I enclose a copy of the Bill and the associated Explanatory and Financial Memorandum. The Committee for the Environment is responsible for the formal scrutiny of the Bill and in due course provides a report on the Bill to the Assembly.

The Committee Members discussed the way forward on its scrutiny of the Bill at yesterday's Committee Meeting. The Committee agreed that it would be useful to copy the Bill to all Local Councils and other appropriate consultees to seek comments and, in particular, any concerns on the specific terms of the Bill.

It would be most helpful if you could structure your response to the specific clauses of the Bill and, if appropriate, could you suggest alternative or additional wording to clauses, which may assist the Committee's consideration of the need for any amendments to the Bill.

The Committee is scheduled to consider the Bill at its meeting of 4 July 2002 and would therefore be grateful for your response (or interim response) to reach me at the latest by close Friday 28 June 2002. My e-mail address and fax number are shown above.

JOHN SIMMONS
Clerk to the Committee of the Environment

ANNEX 12

HANSARD REPORT

PLANNING (AMENDMENT) BILL: SECOND STAGE - 24 JUNE 2002

The Minister of the Environment (Mr Nesbitt):

I beg to move

That the Second Stage of the Planning (Amendment) Bill (NIA 12/01) be agreed.

I am pleased to present the Bill to the Assembly. It is the first major piece of planning legislation since 1991. Therefore, I wish to make my position clear and to give clear direction on the way forward on these matters.

In March 1999, the Department of the Environment and the pre-devolution Ministers considered what should be done on planning. The Ministers made it clear that they wanted the matter to be left until there was devolution in Northern Ireland. Hence, we are here today.

On devolution, Planning Service was underfunded, under pressure and underperforming. It was - and still is - the subject of much criticism from the public and from elected representatives. Planning Service needed more resources, and it also needed a complete overhaul of its policies, processes and powers.

Since becoming Minister, I have viewed that as a matter of utmost importance. I wish to see a speedy and effective planning decision process for those who operate within the law. However, I also wish to see a speedy and effective sanction for those who flout the law. The Department has received resources. Early in 2001 we started to consider the Planning (Amendment) Bill. Since then, the Department has engaged with the Committee for the Environment to discuss the various proposals. The Committee has welcomed, and had already identified, many of the issues that we have taken forward in the Bill. However, it has expressed concern that some issues were not being addressed.

The first such issue was development without planning permission. The Committee expressed concern that there were no provisions in the Bill to make the commencement of development without planning permission unlawful. Since becoming Minister of the Environment and being involved in these issues, I have empathised with the Environment Committee's wish to see that highly undesirable and unwelcome practice addressed.

My Department commissioned research from Queen's University into the extent of the problem in other jurisdictions, and initial findings confirm my view that there is considerable merit in creating a new offence, as proposed by the Committee. That could be done by amending the Bill. However, several important issues and procedural matters must be considered before making such an amendment. I want constructive discussion with the Committee, but some questions need to be addressed. What will the new offences be? What fines and penalties should there be? To try to answer those questions, I sent a policy paper to the Committee earlier today.

If we were to create a new offence, the Executive would have to agree any proposed draft amendment. Above all, we would be creating a new offence in Northern Ireland law, and that would require the approval of the Secretary of State because creating a criminal offence in planning is a reserved matter. I have had preliminary discussions with the Secretary of State about this in principle, and I intend to consult him further if firm proposals come through.

The Committee was concerned that the maximum fine in a Magistrate's Court for breaching planning legislation is an insufficient deterrent to those who flout the law. However, the Bill already provides for a significant increase in the fines that a Magistrate's Court can impose - from the current maximum of £5,000 to a proposed maximum of £20,000 - which is in line with the position in Great Britain. The Bill also includes provisions to enable a case regarding general enforcement notices to be brought to trial before a Crown Court, where there would be no limit on the level of fine that could be imposed. Those significant measures should be welcomed.

However, I empathise with the Committee's concerns and intend to consider further the level of fines that a Magistrate's Court should be able to impose. Again, as a basis for discussion, I sent a detailed policy paper to the Committee on that today, too. After that discussion, I hope we will consider whether an appropriate amendment can be brought forward. As I said, the creation of a new offence must involve the Executive and the Secretary of State.

The Committee also expressed concern, which I must address, that there is no provision in the Bill to introduce third-party appeals. I am less sympathetic to the Committee's concerns on this - it would not be judicious to proceed at this stage. I accept that the Committee, and many others here, support the introduction of third-party appeals. Many argue that it is a matter of natural justice. A developer or householder who does not get planning approval can appeal - whereas those who object to an approval have no right of appeal. There is, therefore, a matter of natural justice between the two sides.

12.15 pm

Much has been said in favour of third-party appeals. Members have argued that the lack of such a provision breaches the European Convention on Human Rights. That is not so, as has been amply shown by several recent Court of Appeal and House of Lords decisions. I am satisfied, on the basis of legal advice, that our planning processes, together with the availability of judicial review, comply with the European Convention, so there is no legal imperative to introduce third-party appeals.

In addition, the introduction of third-party appeals would represent a fundamental change to the planning process. Research carried out by Queen's University suggests that they would be a new insertion into the legislative framework. That would cause serious difficulties for the planning process, particularly for its operational efficiency, which must be considered. There would probably be increased delays in making decisions; the delays are bad enough now. It would also result in uncertainty for people who wished to invest in Northern Ireland. More recent research by Queen's has shown that several issues need to be considered, and policy objectives must be absolutely clear. There are many different ways in which third-party appeals could be introduced.

Mr Close said that, through the review of public administration, some authority might be devolved to local government. If decision-making powers and planning are to be devolved to local authorities, the Assembly would have to be concerned about the desirability of that when a third-party appeal would allow a decision go to the Planning Appeals Commission. I ask the Assembly to consider that. The potentially adverse implications of introducing third-party appeals must be carefully considered - not just the benefits that have been referred to often.

As with the other two matters that were raised by the Environment Committee, I want to discuss that with it. I have today sent a third paper to the Committee as the basis for further detailed discussion on third-party appeals. Those three papers show my genuine efforts over several weeks.

A motion is to be moved in the Assembly tomorrow to extend the Committee Stage of the Local Government (Miscellaneous Provisions) Bill to 17 October 2002. During that period, I wish to have earnest discussion on those three issues, which the Environment Committee raised as being of particular concern.

No major decision on third-party appeals should be made without exposing the full range of options and consequences to full and detailed public consultation. Therefore, I propose to publish a detailed consultation paper on that important subject as soon as possible. Third-party appeals cannot, and should not, be dealt with in this Bill. Indeed, to attempt to do so might jeopardise the passage of the Bill in its entirety.

I turn to the wider context in which I have been dealing with the Planning (Amendment) Bill and the wider aspects that must be dealt with. I said that resources were needed. Additional resources have been secured - 103 new staff have been recruited and 50 more are to follow. New powers have been proposed in the Bill. It is one thing to have new powers, but to be truly effective, those powers need resources to deliver on the law. Therefore, I will be targeting further resources for enforcement matters.

We are also bringing forward new area plans, updating and revising policy planning statements, and modernising the planning process. The modernisation proposal was published in February, and a statement will be made later in the year. I emphasise that this is the most comprehensive review of planning processes in Northern Ireland since 1973.

I have made a substantial bid through the Executive programme funds to overhaul the IT systems of Planning Service and move its IT provision into the best practice of the twenty-first century. If that bid is successful, it will move Planning Service to the cutting edge of IT and produce a quantum leap in the way in which the service operates. Those elements represent a substantial programme of work to improve the operations and functions of Planning Service, and must not be forgotten in the context of the Bill.

There are 32 clauses and two schedules in the Bill. Clauses 1 to 14 propose a substantial strengthening of enforcement powers. For example, clause 1 proposes the introduction of a planning contravention notice. Clause 2 provides for a breach of condition notice. Clause 3 deals with the very important matter of injunctions, where the Department will have direct recourse to the courts to prevent breaches of regulations. That will speed up and strengthen the enforcement process. It is also planned to introduce increased fines for non-compliance with enforcement notices, stop notices and hazardous substances controls. Fines will range from £5,000 to £20,000. If the Bill is enacted, it will, for the first time, allow a Crown Court in Northern Ireland to impose an unlimited fine.

In addition to higher fines for contravention of listed building enforcement notices, there is to be a new provision for custodial sentences for those offences where a listed building is tampered with, by demolition or otherwise, of up to six months in the Magistrates' Court or up to two years in a Crown Court. There will also be new powers of entry for the purposes of investigation of alleged breaches of planning control. The Bill will also allow enforcement notices to be withdrawn or varied.

Clauses 15 to 23 deal with controls over development. By way of example, there will be controls over the demolition of buildings. There will be new powers to decline to determine planning applications.

Moreover, clause 22 introduces a building preservation notice, a matter that has exercised the minds of those in the Chamber over the past weeks: it is commonly referred to as "spot-listing". A building can be spot-listed immediately and a full investigation carried out over the subsequent six months to determine if it is worthy of listing. That important provision will allow the Department to move quickly in circumstances where buildings are at risk and provide a breathing space where necessary. It is the very thing that Members were concerned about several weeks ago, and I said then that such a provision would be included in this Bill.

Clause 23 deals with the protection of trees. There are new enforcement powers to provide greater protection for trees that are subject to preservation orders. For example, there will be a new duty to replace such trees. I remind the Assembly that breaches of the requirements will be subject to the same level of fines as previously mentioned - up to £20,000. Should a case reach a higher court, there may be no limit on the amount of the fine. A new provision has been made to enable the Department to protect trees in conservation areas.

Clauses 24 to 32 of the Bill contain miscellaneous provisions. For example, there are measures to give primacy to development plans in the determination of planning applications. There are provisions for new powers for the Planning Appeals Commission to dismiss appeals in certain circumstances, and for the Department to extend its grant-aiding powers in respect of the built environment.

The provisions of the Bill will significantly improve the legislative framework under which the planning system operates. Importantly, the Bill will enhance the Department's enforcement powers and will enable enforcement action to be taken more quickly and effectively.

Mr McGrady:

I suppose that I speak for most Members in welcoming the Bill. I thank the Minister for the detailed exposition of his intent and purpose, and his "empathies", as he called them, in his presentation of the Bill.

I have a sense of déjà vu about the Bill, in that in 1995 the Northern Ireland Affairs Select Committee held an inquiry into planning in Northern Ireland and, some two years later, issued a full report. However, it has taken a further five years for some of the report's recommendations to see the light of day in this Bill. I am reminded of some of the evidence given to that Committee in the House of Commons.

The Minister referred to aspects of the Bill that are important to the ordinary citizen - if it is possible to identify an ordinary citizen nowadays. Although these are not in order of priority, the first was the matter of demolition. The Minister correctly said that recently there have been some "headbanging" examples of demolitions that should not have taken place. I refer not only to the Heaney residence, but to Oxford House, which I read about in the national press last week. That beautiful building and its surrounding mature trees were destroyed in an afternoon.

The Minister rightly spent some time describing the Department's enhanced powers to prevent the demolition of those structures and buildings that should be retained and, perhaps, rehabilitated for posterity. He touched on the question of preservation of the surrounding environment - not just trees. I am not sure that he was convinced that the Bill gives him, the Department and the planners the ability to step in with the urgency and immediacy that are required.

I presume that, in order to do so, the Department will have to identify those buildings and environmental assets that will require either a prevention order or a preservation order. That will be an enormous task in itself because, very often, once a deed is done, it cannot be undone. Will the Department therefore conduct a survey of properties that should be preserved and attach an early warning signal to them that would enable enforcing orders and preservation orders to be triggered?

12.30 pm

The Minister said that he had empathy with that, but things are easier said than done. All Members have experienced the rapidity with which modern machinery can obliterate our heritage before anyone can keep a tab on it.

That brings me automatically to an anomaly in the planning law, which the Bill will address. It is the issue of the legalisation of actions taken before planning permission is granted - assuming that it is granted. There seems to be no justification for the continuation of that anomaly because there is a statutory requirement for six to eight weeks to elapse between the submission of applications and the granting of permission. Therefore the retrospective legality of taking action before planning permission is not a matter that we should continue.

One of the few measures that the Minister did not have empathy with was third-party appeals. It is an important provision, which is missing from the Bill. It is also missing from the consultative document on modernising planning processes. I do not know whether it is contained in the three documents that the Minister said have been issued to the Committee for the Environment today. I hope that those documents will be issued for wider consultation to enable others, who are not members of the Committee and who have an interest in such matters, to make their opinions known to the Department and the Minister before the introduction of the next planning Bill.

The Minister has set his mind against provision for third-party appeal - perhaps those words are too strong, but he has quoted liberally from as yet unpublished research by Queen's University on the matter. However, the Northern Ireland Affairs Select Committee conducted an in-depth enquiry, and all the political parties and most of the district councils argued for the need for third-party appeals. Therefore it is a major issue that must be addressed, and it should have been addressed as a matter of considerable urgency by the Department. I cannot lay blame at the door of the Minister, who has been in office for only a few months, but I can blame the process. There was a body of opinion - [Interruption].

Mr McCartney:

Any reform is bound to make a change in the legislative arrangements for planning. Therefore to suggest that third-party appeals would make some change in the legislative arrangements is no argument at all.

Mr McGrady:

The hon Member has just referred to a matter that puzzles me, and it is one that I am about to come to. The Minister stated that he had little empathy for two aspects. First, that there is no legal imperative.

I do not understand the phrase "no legal imperative" - that simply means not doing anything about it. However, there is a community imperative to do it. The fact that there is no legal imperative means nothing, given that we are here to make the law. That is why that was a rather odd phrase to use; perhaps the Minister meant something different from what I picked up.

The Minister also said that another reason for not having third-party appeals was the possibility of delays; I did not quite catch his words. Third-party appeals are difficult, and I do not deny the difficulty of accommodating them. Many European countries, and, indeed, our neighbours in the Republic of Ireland, have a third-party appeal process that does not unduly hamper the planning process. Individuals have a significant right to third-party appeals, so there is experience that we can learn from. The Minister can hear from several European countries, including the Republic of Ireland, about the matter. It must be addressed urgently.

The Minster also said that recent cases in the House of Lords and elsewhere show that human rights are not being infringed. I hope that he is right, but I also suggest that with the correct emphasis on human rights, it will not be long before someone challenges him on that. It would be better to deal with a messy legal situation involving human rights, third-party appeals and planning by emphatically pre-empting it in the legislation.

I know that many other Members wish to participate, so I shall quickly touch on two other matters. First, the legislation gives primacy to development plans when determining planning applications. A plan-led system could raise concerns that development plans will take precedence over policy, so it is essential to know in the development plans - which will be the criteria on which applications are adjudicated - that full consultation and the subsequent input of an agreed planning policy had taken place. The policy should be overriding, irrespective of what has been written in a plan, and a fairly in-depth consultation is needed to achieve that.

My second point deals with the problem that most Members, as public representatives, have had when dealing with planning matters, which is the lack of uniformity in applying planning policy. As we travel in our fair countryside we see glaring examples of that, and that brings planning into disrepute. A person who has been refused or denied some aspect of his planning application will immediately say "Ah, but what about?" That phrase is used so frequently. When travelling at the weekend, I noticed startling examples of where planning permission had been granted to undeserving private houses and of where the planning policy of one area should have been the policy of other areas but was not. Legislation is not necessary, but planning officers who deal with applications should be trained in interpretation.

Finally, I am surprised that mobile phone masts are not mentioned in the Bill. The Minister's predecessor promised us that the legislation on this would be brought before the Assembly before the end of May.

We are now nearly at the end of June, and we are heading towards recess at the end of next week. This is one aspect of planning that agitates many in the community, whether they are users or non-users of mobile phones. Representations have been made by many bodies and people over the past few years, culminating in the promise of the Minister's predecessor, Mr Sam Foster, that legislation would be brought to the House before the end of May. It is strange, therefore, that nothing has been mentioned about it in the Bill or anything else that I have read. Will the Minister tell us where that legislation is and what stage it is at? Given that this is one of the most emotive issues facing the community, will that legislation be resurrected, dusted down and brought before us?

In general, I welcome the legislation. Having voiced my criticisms and concerns, I hope the Minister will view them as constructive criticisms and expressions of concern in the public interest. I hope that those who are not on the Environment Committee, and those who are not in the House, will have ample opportunity to address the issues raised, or not raised, in the next planning Bill, which should follow fairly quickly, and in the three consultative documents put to the Environment Committee, details of which I tried to jot down as the Minister was speaking.

Mr M Murphy:

Go raibh maith agat, a Cheann Comhairle. I welcome the enforcement powers that address the matter of builders and developers breaching planning control. However, a major concern is that the fines are too light, particularly for large construction companies. I welcome the introduction of penalties for those involved in the demolishing of listed buildings.

As a member of the Environment Committee, I view the new powers enabling the Department to enforce the duty to replace trees that are subject to tree preservation orders (TPOs) as a progressive step. However, tree replacement should be made on a like-for-like basis - the size and species of the tree should be taken into consideration.

The issue of third-party appeals requires more consideration, and the adverse absence needs to be taken into account. The Committee's concerns should be looked at in greater detail and should involve full public consultation. The Committee recognised that the procedure would affect the planning process. However, the procedure already operates in the Republic, and it seems to be working properly. Third parties here have no right of appeal under the present rules. Where planning practice is not to the satisfaction of the local population, it should be clarified for all concerned. District councillors are concerned that their views on third-party appeal issues should be heard and taken on board.

Mr McGrady mentioned mobile phone masts. There is no mention of proper development of planning policies on them, other than that full planning permission is required. That is not good enough. The local population is very concerned about the matter. I ask the Minister to readdress the problem. Go raibh maith agat.

Mr McCarthy:

On behalf of my Alliance Colleagues, I give a general welcome to the Bill. For too long the planning system has failed to operate for the good of all the people of Northern Ireland. The updating of planning law is long overdue - it should have been one of the first acts of the devolved Government.

My Colleague David Ford has already been involved in detailed discussions in the Committee for the Environment on various aspects of the Bill. He and other Committee members have much work to do to improve the Bill and to ensure that it becomes the best possible Act to set the terms for planning in years to come.

12.45 pm

As this is the Second Stage, I wish to put a few questions to the Minister. I have no doubt that some of them will not be answered to our satisfaction this morning, but I ask him to consider them seriously. The Minister has spoken on the issues about which we have concerns, so perhaps he will take my comments on board.

First, the biggest gap in the Bill is the absence of a third-party appeal system. The Minister and other Members have spoken on that matter. It is simply not acceptable for an individual who is refused planning permission to have a right of appeal, while objectors to the granting of permission have no right of appeal, apart from an expensive and legalistic judicial review. We all know who benefits from that. I do not wish to allow a neighbour with a grudge, but no objective reason for his or her objection, to delay the granting of planning permission in every case. We must achieve a balance, as none exists at present. Surely it is possible to devise a form of words that will allow a right of appeal for objectors who have substantial backing. For example, we could measure support by requiring a significant proportion of a local council to support the objectors or by requiring a certain number of signatures. If third-party appeals are not to be included in the Bill, when does the Minister hope to introduce such an appeal system?

Stronger enforcement powers are necessary. The details of the clauses show how deficient the law is. However, clause 12, as described in the explanatory and financial memorandum, mentions only some marginal financial implications. What on earth is the point of stronger enforcement powers if the Department does not have the resources to make use of them?

The procedures for listed buildings are known to be archaic and cumbersome. We know what has happened recently in Belfast. We need a better system than the Minister standing in the street crying, "Shame!" as the bulldozers do their work. I welcome the proposals for building preservation notices and temporary listings in clause 22. I hope that the Committee will ensure that those powers are as robust as they are in other parts of the United Kingdom and in the Republic of Ireland.

One of the principal concerns that many citizens have on planning issues is the preservation of mature trees. That leads on to the need to protect growing trees and saplings and to the protection of woodland, which includes small copses and units, and the scrub, brush and wild flowers that grow under the trees.

Mr ONeill:

Does the Member agree that the legislation does not make it clear what would happen if a site were purchased, sold on, cleared by the second sale and sold on again, and possibly sold on for a fourth time before a development application were made? How does the Department propose to include in the legislation provision for checking up on the land, for deciding penalties for desecration and for imposing those penalties?

Mr McCarthy:

I thank the Member for drawing that to our attention. We agree with his comments. The Minister listened and I am sure that he will answer the question appropriately.

Should there not be a presumption that all mature trees on a site for development will be preserved under a development plan until that development plan has been approved, rather than a presumption that anything that is not individually protected can be destroyed?

We must know more about the penalties and the requirements to plant replacement trees; otherwise there may be large financial benefits for people who cut down trees. That follows on from Mr ONeill's remarks. Will the Minister tell us whether his proposals will protect undergrowth in woods, which is so important to wildlife?

The Alliance Party supports the Bill in principle and welcomes the Second Stage. I hope to see the Bill strengthened at Consideration Stage.

Mr Watson:

As a Member of the Committee for the Environment, I apologise for the absence of the Chairperson and Deputy Chairperson, who had previous engagements. I thank the Minister for introducing the Bill. Members of the Committee for the Environment look forward to discussing the clauses of the Bill at Committee Stage, so I will keep my comments relatively short.

The Minister will be aware that the Committee has already had several detailed presentations on the consultation exercise that preceded the Bill and on the draft Bill. There will be a further presentation and discussion on major policy issues this Thursday with departmental officials. This demonstrates the importance with which the Committee views the legislation - and, indeed, all legislation - and its clear determination to come to terms with the detail of some complex legislation. For too long, the outdated and ineffective planning laws in Northern Ireland have failed to reflect the demands of a modern developing society, and this has been coupled with inadequate resources, lack of co-ordination between the various agencies in the former Department of the Environment and a lack of political resolve to address the real issues.

One major problem, given that the Bill is long overdue, is that so much is expected of it. Planning law is not only concerned with what may be built, where and when, and ensuring that what is built conforms to the permission given, but is also about giving vital support to those charged with the conservation and preservation of our built heritage. The forthcoming presentation by departmental officials, which is to be based on recent research at Queen's University, will focus on three important and relevant matters. The first is third-party appeals. For too long, the planning system has been biased - and I do not use that word lightly - in favour of developers, and those most affected are often left feeling helpless once a decision has been given. In previous presentations to the Committee, departmental officials have been anxious to explain the difficulties involved with the introduction of third-party appeals into the current planning system, and consequently their introduction into the Bill. The Committee appreciates fully that there may be difficulties, but members want to hear solutions. If third-party appeals work elsewhere, why can they not work in Northern Ireland?

Secondly, the Committee will wish to discuss fines with officials. The Bill will increase fines for those developers who commit the most serious breaches of planning law to a maximum of £20,000. From the outset, the Committee has questioned the inadequacy of fines, and it continues to do so. What kind of deterrent is a £20,000 fine to a developer who will make £1 million profit for breaching a planning law? The Department has told the Committee - and this has been reinforced by the Minister's words today - that a new culture will ensure that more lawbreakers are taken to a higher court where unlimited fines, and even imprisonment, can be imposed. I have seen no evidence of that and cannot see how the Bill, as it is worded, will change radically the Department's enforcement policy and practices.

The Committee will examine this aspect of the Bill very closely. It has been told that the new fines are the same as those in England and Wales and cannot be increased without the Secretary of State's approval. Will the Minister tell us why fines are being introduced that will mean little to those making huge profits? Will he also tell us what representations regarding facts and statistics about planning law abuse he has made, or will make, to the Secretary of State?

Finally, departmental officials will discuss with the Committee the introduction of a new offence that will make it illegal to start development before planning permission is given, or even applied for. All too often, developers move to demolish a building or level a site without planning permission. That must be stopped, and the Bill is the opportunity to do something about it.

We have again heard from the Minister on this, but the Secretary of State must be pressed to give his approval. What representations has the Minister made, or will he make, to obtain that approval? Although the Committee believes that the legislation is long overdue and must progress with all speed, its members have already identified some concerns with the Bill. We will have to examine how those concerns have been or will be addressed.

(Mr Deputy Speaker [Mr McClelland] in the Chair)

When the Minister came before the Committee in March 2002, we discussed a proactive approach to co-operating with him to deal with no less than five Bills coming from his Department. At that time, the Minister agreed to forward policy memoranda on Bills to the Committee as early as possible, and the Committee pledged full co-operation with the Department, subject to being fully satisfied with the terms of the Bills. That is still the Committee's intention. However, I can assure the Minister that the Committee will be both diligent and thorough in its consideration of the details in the Bill, as he would expect. If necessary, we will come back with amendments at Consideration Stage.

Ms Morrice:

Members are aware that this is a hugely important issue. Every MLA is aware of the local community's increasing frustration at how the planning process has operated in the past. The Bill is a vital change in updating that process. This is our opportunity to make our mark on something that affects every member of our community. We know that through the stack of letters on our desks.

Mr McCarthy said that the planning procedure to date has failed the local community. We agree; it must be changed, and it needs teeth. We welcome the Minister's attempts to do this, and we were very pleased to hear Mr Watson say on behalf of the Committee for the Environment that it will dedicate itself to scrutinising this and putting pressure on the Minister to ensure that the changes happen.

The most important thing in updating planning legislation is to change the culture of the legislation. Members have touched on that. We are talking about equality of opportunity; as Mr Watson said, planning legislation is in favour of the developers. Last week, I asked the Minister to detail the number of applications from developers that are successful on appeal; the number was extremely high. Nevertheless, the local community has absolutely no right of appeal. Why does the local community not have equal opportunity? This is about third-party appeal.

We do not at all accept that third-party appeal could bring unwanted delay. Development is progress, and progress should not be stopped short. However, if it is to the detriment of the desires of the local community, it is not valuable progress. The important thing is that equal opportunity be given to the developer and the local community in third-party appeal. Research is under way to consider how it may be introduced, but I fail to understand the reluctance I detect to third-party appeal. If it has been introduced elsewhere, why can that not be done here? I am tempted to say that it could even be introduced on a trial basis, but that would not work. We must accept that the local community needs a right to reply and a right to appeal. For example, in dealing with large development projects, environmental impact assessments are carried out. We ask the birds, bees, flowers and trees to see what effect it will have on them, but there is no community impact assessment to ensure that the neighbours and the local community are consulted in these stages of the development process.

That is an essential aspect of planning, and the Minister must take that on board. If the Environment Committee does not attempt to introduce amendments to allow for third-party appeal, we will do it ourselves. I assure the Minister that there will be a great deal of pressure, either from the Committee or from individual Members, to get provision for third-party appeals added to this legislation.

1.00 pm

Some Members have already mentioned demolition. We have all seen the effects of that, whether it is Ardmara in Bangor or Séamus Heaney's house. I have written to the Minister regarding properties in Demesne Road and Bangor Road in Holywood that are also at risk. We do not want to see the Minister on television again saying that it is a shame. There will be egg on his face at some stage if these demolitions keep occurring and nothing is done to change the legislation to prevent it from happening. The issue of demolition should be part of the planning application process so that developers cannot knock down buildings to ensure that planning permission goes through.

I welcome the increase in fines, although it will never be enough. Sometimes fines are drops in the ocean when they are increased by a couple of thousand pounds. I have a suggestion that might be useful. Some of the money raised from fines could go to voluntary environmental and heritage groups, such as Conservation Volunteers Northern Ireland, to bolster their highly valuable work. They alert us to what is going on, and their work should be rewarded in some way.

Spot-listing is one way of stopping demolition in advance. However, when the legislation was brought over here the reference to spot-listing was removed. Why was it taken out, and why can it not be slipped back in again? It should be a guaranteed factor in this legislation that the Minister can draw on to protect buildings.

I will draw my remarks to a close, as other Members want to speak. I turn finally to the principles of planning policy and the need to consult the local community and bring it on board. Play areas in large housing developments should be guaranteed. The Irish legislation guarantees that every hundredth house is converted into a crèche or something similar that recognises the value of children's play. We have estates such as Poleglass and Kilcooley with hundreds of families, and not one slide or one swing between them. That is a disgrace, and it must not happen again. Children's play areas must come high up on the agenda of any planning application for a large housing development.

There are examples of townscape character in the South. When you drive into a village you smile because of the colours and signage. Work has been done to make those villages aesthetically appealing to tourists, and that is important. We should remove the idea of town cramming and unsympathetic development. All that must be part and parcel of the culture of planning. In this devolved institution we have the ability to listen and react to the local community, and that is what it wants.

I put all my confidence in the Committee to ensure that the Minister, who is sympathetically disposed, will take those issues on board.

Mr McCartney:

The overwhelming majority of complaints to the Northern Ireland Ombudsman have related to planning. I therefore welcome this legislative attempt - belated as it is - to deal with some of the anomalies and ghastly gaps in planning law that have been the source of many of those complaints.

The Assembly is fortunate to have had such a thoughtful, practical and comprehensive contribution by Mr McGrady, who has a sense of reality about what can be done. I will develop some of the matters that he adumbrated.

Regardless of the difficulties, procedural or otherwise, that the introduction of third-party appeals may entail, most people affected by planning decisions have an overwhelming desire for that provision. Planning laws, like every other law, should be enacted for the benefit of those whom they affect; therefore, strong, clear and pressing considerations must be present before such a desire could be ignored in the legislation.

Suggestions have been made as to why third-party appeals should not form part of the legislation. The Minister's mind seems to be set against them, although we are to be treated to a consultation process before a final decision is made. It is surprising that detailed amendments by the Minister, or the suggestion of a consultation process, should take place now. Why were those matters not considered in detail long before the Second Stage? If changes were to be made, one would hope that every aspect would be considered in detail.

I will deal with the arguments against, and the merits of, third-party appeals. It is suggested that third-party appeals would interfere with the principles of existing legislation on such appeals and the planning process generally. Any reform or legislation to make improvements or to introduce benefits is bound to affect existing legislation; therefore, the argument that a necessary and much-sought-after reform should be objected to because it would change a system lacks merit.

The second question is that of delay. I do not suppose that third-party appeals will be made against the vast majority of planning approvals. They will be made in respect of decisions that affect a large section of the community and to which there is popular objection. Ms Morrice made the positive point that we have impact assessments about the birds and the bees, and flora and fauna. In the context of planning, the most important fauna are human.

I have often attended and been professionally involved in planning appeals where planners have produced a set of logical guidelines and principles to support their statement that they can do nothing about a development, despite the massive objection of the humans who will be most intimately affected by the decision. The present law does not require planning approval for demolition, so a developer can move into a zoned or residential area and demolish an Edwardian or a Victorian building, which may not be listed or of specific architectural or historical merit, but which is part of the fabric, atmosphere and age of the area. The building's demolition leaves a piece of open ground in an area where a developer is bound to get permission for a residential development.

The planners' only control over that is a collection of nebulous guidelines that the proportions of the new building must be roughly similar to those of surrounding developments. Permission for some apartments is then granted to the developer. However - and this is the nub of the matter - the builder builds the development but adds an extra floor comprising an additional six flats costing £250,000 or £300,000 apiece. That has happened in north Down; developers are making a killing. When local people object on the basis that there has been a breach of contract, there is a marked reluctance by Planning Service to instruct that the building be demolished. There is then much toing and froing, which the builder ignores, and, in 10 cases out of 10 - not nine out of 10 - he is given retrospective permission. At that stage the developer has made a killing, and a coach and four have been driven through the planning laws. The Assembly must think carefully before ignoring third-party appeals or adhering strictly to planning decisions.

Third-party appeals would be relatively few, and it would be easy to legislate that, in order to gain a right to such an appeal, a person must present a prima facie case. Under those terms, only where a prima facie case is demonstrated would a third-party appeal be allowed. That litmus test would eliminate many of the fears that envious or vindictive neighbours would, willy-nilly, make third-party appeals.

It might also be legislated that costs may be awarded where a third-party appeal is lost and an inspector decides that the case never had merit. Those are not the only methods, but such provisions might remove many of the Minister's fears about third-party appeals.

1.15 pm

Some Members who have spoken have heavily canvassed the issue of fines. I endorse the frequent suggestion that the fines are inadequate, even at their present limit. Developers can get £250,000 or £300,000 for an apartment, and if they can get a further four apartments by adding an extra storey, that is very big money. The fines are relatively innocuous in proportion to that and would not deter anyone.

The other point I want to make is about the relationship between developers and planners. Developers are there every day. In some cases in which I have been involved, there has been such a multiplicity of plans that the average person going to inspect them cannot understand them unless he brings an architect who has half a day to spend on them. Members must be careful about dismissing the introduction of third-party appeals, because there is a suggestion that developers have a big "in": they are professionals; they know what is required; they have existing relationships with planners; and they often get away with things that an ordinary individual would not.

There is a presumption in the planning culture that if developers are providing employment, putting money into the economy and doing something that has a veneer of public benefit to it, such as additional housing, they should get planning permission. That sort of culture must end.

I endorse what Mr McGrady said about what is not in the Bill. There is nothing in it about masts. Planning should be for people who live in communities. It is not good enough not to pay strict attention to what a significant number of ordinary people feel about the possible dangers of radiation from masts. That should be provided for in the Bill. Am I being cynical in saying that once again this is a question of big business? Vodafone, Orange or whoever puts up the masts have a subliminal clout that the rest of us do not have. While I support the Second Stage of the Bill in principle, there are worrying omissions and failures to address various matters.

The Chairperson of the Committee for the Environment (Rev Dr William McCrea):

I apologise to the Assembly and the Minister for being unable to be here at the beginning of the debate, but the Minister for Social Development was in my constituency this morning. As I was unable to hear the Minister's opening comments, I will keep my remarks brief. However, I will read, with great care, what he and other Members said in that part of in the debate. It is important for the Committee to consider carefully the views of Members who are not members of the Committee and cannot make their views known there. I will ensure that the Committee receives a copy of the record and that it gives due recognition to what is said.

No one would say that all is well and that we have effective planning laws that reflect the demands of our society. Many matters need to be brought to the attention of the House, and the Planning (Amendment) Bill ought to consider other matters that the Minister and the Department have not taken into consideration. I will confine my remarks to three areas. Ms Morrice and Mr McCartney touched on them, as did others.

I want to make it clear that the Minister cannot duck the question of third-party appeals, nor will the Assembly allow him a way to do that. The Committee for the Environment fundamentally supports the necessity for third-party appeals, and we have been strong in our representation to the Department, as the previous Minister and the current Minister both know. The issue cannot be put on the long finger. Developers have priority over the community under current planning legislation, and that cannot be permitted to continue.

Mr McCartney said that when developers are mentioned we hear about how they provide employment and invest in the economy - and rightly so. No one in my Committee wants to stop developers doing anything that will benefit the community. However, they are not the only ones putting something into the local economy and providing employment; the people in the community are also putting a lot into it. Let us never forget their value and commitment to their areas. It is vitally important to ensure that the rights of the ordinary citizen in a community are taken into consideration. If an applicant is refused, he has the right to appeal. However, if a community feels that its rights are being trampled over, it has no right of appeal.

I gather that the Minister said that he is not taking forward third-party appeals at this time. Several Members have drawn that to my attention. The rights of individuals can be violated, and they ought to have the right to appeal. This issue, whether pursued by my Committee or by individuals, will not go away. It will be on the agenda, and the Assembly will have the opportunity to give its opinion.

If the Minister had listened to the will of the House in past debates, then he would have introduced the right of appeal in this Bill. Even at this late stage, the Minister should accede to that will. If he does not accept that it is the will of the House, then we should put it to the test in a democratic fashion through a vote. This is a live issue, and it will be dealt with in the Assembly, whether through the Minister's intervention or through the intervention of others. I hope that that gives some assurance to Members that the matter is being taken seriously.

I want to deal with the level of fines being suggested in the Bill. Those fines are as nothing when measured against the high profits that developers can make by breaching planning law. The answer will come that cases can be taken to the Crown Court, where there is no limit on the fines that can be imposed. If that is so, and if the Department believes that it is a serious issue, then local courts should also have the right to impose fines relevant to the huge profits being made.

What is £20,000 to a developer who is probably making £1 million from his development? It is absolutely nothing. He laughs all the way to the court and out of it, and he laughs at the community, which feels aggrieved by what has been done. Serious consideration must be given to this. The Minister and his officials have told the Committee that the Secretary of State would have to agree to a large increase in fines. If that is so, the Committee requests that the Secretary of State be approached. Northern Ireland has particular needs, so if fines cannot be increased without the Secretary of State's intervention, he should listen to the will and desire of the House and do something about it.

There must be proper enforcement. I am told that the Minister said that more staff would be employed in the Department's enforcement section, which has an abysmal record. There must be real enforcement, because many people in Northern Ireland think that they can breach planning law and that nothing will be done about it.

Mr McCartney said that there was hesitation in forcing people to demolish buildings. I have not found that to be the case with regard to ordinary people, who seem to be faced with greater threats than those who have financial clout. I want to see building development in the Province, and I want to see planning permissions being granted. However, Planning Service must be sensitive to particular areas and to older buildings that are being pulled down, with new buildings being erected in their place. New buildings are often out of place and are more of an eyesore than the original good-quality buildings. That has been the scenario in Belfast recently.

The Committee will listen carefully to what the Department has to say. However, the Minister is aware that the Committee has a mind of its own and will challenge the Department. If the Department is not willing to yield on matters on which the Committee has strong feelings, the Committee will not be behind the door in telling the Minister and the Department what it thinks. If it must bring the matter before the House, it will be happy to do so.

Mr Nesbitt:

I am trying to ensure that when I move the Dispatch Box I do not cowp or demolish my glass.

Rev Dr William McCrea:

Do you have planning permission to put the glass there?

Mr Nesbitt:

I have placed my glass where others have placed theirs, so we are in accord with one another. It is good to note that the Chairperson of the Committee for the Environment and the Minister of the Environment are acting in harmony and accord.

Ms Morrice:

There may be a third-party appeal.

Mr Nesbitt:

Someone may wish to lodge a third-party appeal on where the glass is situated. However, that is a serious matter with regard to the Planning (Amendment) Bill. Eight or nine Members have spoken, and much concern has been expressed about inadequacies in the planning system in Northern Ireland.

I am mindful of economist John Simpson's words in the business section of the 'Belfast Telegraph' some weeks ago that everyone has something to say about Planning Service, just as everyone has something to say about the weather - but at least, on some days, the weather is good. That gave food for thought, and I referred to it at the start of my address. Planning Service has been under pressure and needs more resources. There are difficulties that must be addressed, and I am not ducking them, as I said in my opening remarks.

I thank Mr McGrady for his comments about the empathy that I have shown. I reiterate, in the presence of the Chairperson of the Committee for the Environment, who was not present earlier, that I empathise with many of the comments that the Committee has made to my officials and to me.

Mr McGrady mentioned the House of Commons Select Committee on Northern Ireland Affairs inquiry into planning in 1995, and that many issues dealt with then are being discussed again. I am conscious of that. It is mentioned in the paper that was sent to the Environment Committee today.

1.30 pm

Mr McGrady also mentioned urgency and immediacy. He said that he was unsure about the scope of enhanced provisions to prevent demolition because the Department will have to quickly identify important buildings that might be demolished. He talked about the listing of buildings. He said that it is fine to have a new rule preventing demolition, but that such orders must be enforced, because once a building has been demolished, nothing can undo it.

Contrary to Ms Morrice's belief, spot-listing is contained in the Bill. I am not sure where the Member heard that it had somehow been taken out. It is not out. Spot-listing is clearly provided for in the Bill.

Mr McGrady stressed that it is fine to have the Bill, and fine to have these provisions - as long as one uses them and knows when they must be used. Surveys have been carried out. The first, conducted in 1970, was on a wing and a prayer. It ended up comprising of just one photograph of a building because resources were not available.

The problem with listed buildings is threefold. First, we do not know the status of some of those buildings. Secondly, we do not have the resources to deal with them. Thirdly, we do not have the enforcement measures to deal with them. More resources are needed, and we must be clear about those buildings that can or cannot be listed.

I mentioned that point in an article that I wrote in the 'Belfast Telegraph', in which I invited people in Northern Ireland who feel that there is a building that could, or should, be listed to notify the Department. I was responding to and empathising - if I may use that word again - with that paper's editorial, which commented that we must work together as a community to make sure that our built heritage is protected. [Interruption]

My time is limited. I am not being disrespectful to Mr McGrady. [Interruption].

If I have as long as I like, I will give way to Mr McGrady, but I will not give way ad nauseam to all and sundry.

Mr McGrady:

It has been so long since I spoke that I can hardly remember what it was about.

The Minister said that it will be possible to list buildings to prevent their demolition. Is he conscious that listed buildings are being demolished and virtually no action is being taken?

Mr Nesbitt:

That may be the case. I cannot comment on specific examples. However, I have stressed that part of the Bill is to ensure greater rigour of enforcement. Penalties will be made very clear. The Department and I are serious in our intentions; not only about built heritage, but also that the planning regime is clear and transparent, and that those who abide by the law will have a speedy decision while those who breach the law will be swiftly penalised. I abide by my opening comments to that effect and will ensure that they are reflected throughout this Bill.

Mr McGrady mentioned third-party appeals. That issue came up quite often. He also hoped that the three documents that have been issued to the Environment Committee would be made available to the Assembly. That is a reasonable request. It has taken some time for officials and myself to deliberate those issues. Indeed, we worked on them over the weekend to ensure that we got to grips with their nuances in preparation for this debate. The papers were sent to the Committee today, and other Members should also have them.

Mr McGrady said that I have set my mind against third-party appeals. I am less sympathetic to, and not completely persuaded by, third-party appeals. However, I want more consultation. He said that all political parties and most district councils want them. I wish that Mr McCartney were here, because he said that there was a desire for third-party appeals, regardless of their difficulties.

This is not an exact analogy, but many people have a desire for speed and cars that can travel at 160 miles an hour. However, the fact that people have a desire for something does not mean that the law permits them to realise that desire.

I am sorry that Mr McCartney is not present. His criterion of desire is not -

The Chairperson of the Committee for the Environment (Rev Dr William McCrea):

The desire to speed is irrelevant; that is an illegal desire. Mr McCartney referred to the will of elected representatives and the public. The Department must get on with reform, because the desire is not illegal, and it should have the backing of the Department.

Mr Nesbitt:

I am dealing with the choice of words, which are important to lawyers, and, therefore, to Mr McCartney. He used the term "desire"; I said that desire alone does not justify an action. All aspects must be assessed. However, I said that I wished to discuss the matter further with the Committee and others.

Mr McCartney said that the phrase "no legal imperative" was an odd one. The legal imperative to which I referred was European Convention law, whereby a body outside the jurisdiction of the United Kingdom could dictate how something must be done, as with European Directives, which when passed through certain procedures, automatically become Northern Ireland law. That legal imperative has been tested in the courts, and we have not contravened it.

Mr McCartney said that it was strange that mobile phone masts were not included in the Bill, and he spoke of their dangers. Some Members must have a mental block; that matter was dealt with. Some Members said that we had an obligation to bring forward the matter; it was brought forward. The Planning (General Development) (Amendment) Order (Northern Ireland) 2002 came into force on 21 June 2002, and copies are available in the Library. Full planning permission for mobile phone masts is required. We followed the Stewart principles on precautionary measures, and Policy Planning Statement No.11 made clear our modus operandi in respect of telecommunication masts. Why do Members say that we have omitted to deal with mobile phone masts, when the reverse is true?

I thank Mick Murphy, a member of the Committee for the Environment, for his comments on our progressive approach to trees and other matters. There is much good in what has been said, as well as some bad. Trees should be replaced like for like. Another Member mentioned the protection of the undergrowth, the habitat of birds and wildlife, but we can protect only trees. Mr ONeill, who is not present, asked whether a tree preservation order would continue to apply if the ownership of the land changed. If trees are removed from an area protected by a tree preservation order, the trees must be replaced, and the order still applies. The trees cannot be removed to create space for development.

Mr Mick Murphy and Mr McGrady stated that, given that third-party appeals are provided for in the Republic of Ireland, they should be included in this Bill. I am not against implementing measures because they are law in the Republic of Ireland. In fact, research issued to the Committee for the Environment about practice in the South and in Northern Ireland projects that, contrary to Mr McCartney's belief, there could be between 500 and 700 more cases a year in Northern Ireland, costing £1 million. In the South, cases are subject to an 11-month delay because of third-party appeals.

The research found that, by involving district councils, the North has a more consultative-deliberative planning process than does the South. We are therefore not comparing like with like, and we must deal carefully with the issue of third-party appeals.

I thank Mr McCarthy for remaining in the Chamber.

Mr Ford:

Mr McCarthy has manners, unlike some Members.

Mr Nesbitt:

I did not catch what the leader of the Alliance Party said. However, having made a comment, does he now resile from repeating it? That is most unusual.

A Member:

It was a complimentary comment.

Mr Nesbitt:

If it was a compliment, I accept it, but only because a Colleague of mine on my left says so - in case it was not a compliment.

I agree with Mr McCarthy that the Committee has much work to do. We all do. I empathise with many of the Environment Committee's recommendations, and my officials and I want to work with it.

I note the extension to 17 October 2002 that Rev Dr William McCrea seeks for the deliberation of the Bill. I say yes; we have weeks in which to work together to achieve a resolution based on evidence, not emotion.

Mr McCarthy also said that the absence of third-party appeals, and the fact that objectors have no right to appeal, is unacceptable. I concur that there must be balance and that we must avoid vexatious claims from people on neighbouring properties. It is a complicated process, and that is why I wish to issue a consultative document to determine the best way forward. Mr McCarthy stated that listing powers are useless if adequate resources are not available. Again, I agree with him, and for that reason I will target enforcement for resources.

Mr Watson referred to a planning system that is biased in favour of developers. I want a system that is biased in favour of law-keepers, not lawbreakers, regardless of whether they are developers or Mr and Mrs Joe Bloggs in the country. I want the planning system to be efficient and effective for law-keepers; and, for lawbreakers, I want a service that will ensure that penalties are imposed speedily. Therefore if the planning system is biased in favour of developers, I trust that it will not be in the future. It is a simple matter of right and wrong. It is a question of having a law that reflects the Assembly's wishes and of ensuring that they are enforced rigorously.

Mr Watson stated that fines of £20,000 are not a significant or adequate deterrent and that he has seen no evidence that the new measures will work. To determine whether the new measures will work, we must implement them. It is therefore illogical for Mr Watson to claim that there is no evidence that they will work.

1.45 pm

He said in his conclusion that the Committee would be diligent. I concur that the Committee has been diligent, and I have no doubt that it will continue to be so.

Ms Jane Morrice said that Members would themselves propose amendments providing for third-party appeals if others did not. My advice is not to do that. Those points have been covered. She suggests that fines should return to the voluntary sector - that the money raised should be repackaged and passed on to that sector. That request is interesting, and the Minister of Finance and Personnel would also find it interesting.

I have already covered Ms Morrice's point where she alleged that someone had removed the line on spot-listing. I wrote "No, definitely not" in my notes. It was not taken out. I agree with Ms Morrice when she said that cramming in towns, and other such issues, must be dealt with. We do need a new culture; we need change, and we also need to know people's views. However, I was concerned when she said that she would put her trust in the Committee, because I hope that she also has some trust in me and in what I am doing. Working with the Committee, we will deal with the issue.

I have noted carefully what Mr McCartney said. Indeed, I note what all Members say, but Mr McCartney is judicious and correct in his use of words, I trust. He referred to third-party appeals, and he said that it is quite clear that, regardless of the difficulties, there is an overwhelming desire for such third-party appeals. That is a criterion alone. I have already referred to the use of the word "desire" in my answer.

Ms Morrice:

Third-party appeal is interesting, because the Minister compared our legislation with that in the South, referring to the delays, and so forth. He said that there is more consultation in Northern Ireland than in the South. He cited the role of local government in that consultation process. Is it not true that even if an entire council opposed a development, it could still proceed? What value is the consultation process if it serves no end?

Mr Nesbitt:

That is the position to a certain extent, but I am the Minister who is accountable for decisions. The council is consulted. De jure, I make all the 24,000 decisions that must be made in the year; de facto, I may make some decisions on significant or contentious issues.

Ms Morrice may recall that I mentioned the review of public administration. On other occasions the House has recommended that we wait for the outcome of the review of public administration, as it did in the case of the Local Government (Best Value) Bill. As a result of the review of public administration, it may be that the authority for deciding on these matters would reside with a district council or its replacement. That could be the elected body to make the decision, and, therefore, a third party might take that decision out of its hands to a planning appeals commission. That highlights the difficult issues that we must address, assess and assimilate. As I said, we base our decisions on evidence, not emotion.

Mr McCartney also said that I said that third-party appeals would interfere with legislation. He then said that the argument that third-party appeals may interfere with legislation lacks any merit. Let me make it clear - and the record will show, as I repeat it - that when I referred to legislation, I said that the impact of legislation would be in the planning process and the operational efficiency of planning. That is the outcome of changing legislation. Of course we can change legislation, and we have the authority to do that. However, we must weigh the impact and the merit of changing the legislation. I simply point out that changing the legislation will have a significant impact on the planning process and its operational efficiency.

Rather than my argument lacking merit, it has merit. A judgement must be made. The Assembly is about balancing judgements against competing demands. Mr McCartney stated that

" in 10 cases out of 10"

the developer is given retrospective planning permission and thus builds bigger. Mr McCartney also stated that

"The Assembly must be careful in ignoring third-party appeals".

I do not want to see that happening; the Assembly must ensure that the law is adhered to.

Mr McCartney also spoke about mobile phone masts. I cannot understand his statement that there is nothing in the Bill about masts. We have already dealt with it.

I accept Mr McCrea's apology for his absence at the start of the debate. When I stand to speak, I check that the august Chairman of the Committee for the Environment is present, as his presence always makes the debate more interesting. I said to myself, "William is not here today", but I am glad that he appeared later for the final analysis.

Mr McCrea said that I cannot duck the question of third-party appeals - I am not ducking the issue. I have referred to significant matters that must be addressed. I am not putting them on the long finger. Mr McCartney and Mr McCrea also said that developers seem to have priority status. I do not want that to be the case. Mr McCrea also said that the value of the ordinary citizen should not be forgotten. I agree entirely. The matter is a question of right and wrong, and of ensuring that the law is implemented - it has nothing to do with the size of the development; whether it be a small bungalow or a multi-faceted development.

Mr McCrea asked whether I should meet the Secretary of State. I have had initial discussions with him. We are progressing the matter positively through the Committee's deliberations and through my meetings with my officials. Those meetings will run parallel to discussions with the Secretary of State.

The final three words that I noted down are those of William McCrea. He said that we "need real enforcement" - I agree entirely.

Question put and agreed to.

Resolved: That the Second Stage of the Planning (Amendment) Bill (NIA 12/01) be agreed.

ANNEX 13

LETTER FROM:
THE MINISTER
DEPARTMENT OF THE ENVIRONMENT

24 June 2002

I am aware that during recent presentations by my officials to the Environment Committee on the Planning (Amendment) Bill, your Committee expressed concern that no provisions have been included in the Bill to introduce third party appeals or to make it an offence to commence development without planning permission.

At the presentation on 30 May 2002 your Committee also indicated its view that the proposed levels of fines within the Bill were too low. In particular, the Committee suggested that the levels of fines in the magistrates' court should be higher, or, indeed, that there should be no maximum level, thereby leaving it to the magistrate to decide the appropriate level of fine for any particular case.

I empathise with your sentiments and actively encouraged the preparation of the attached papers. I will summarise the main issues as follows:-

Third Party Appeals (annex a)

The policy paper on this issue refers to recent Queen's University research and identifies a wide range of issues that will require careful consideration in advance of any decision on whether third party appeals should be introduced. I have noted the Committee's concerns, but strongly believe that this major issue should be the subject of full and detailed public consultation and impact assessment. The Department will continue to actively pursue the many complex issues involved and I look forward to engaging further with your Committee on this important subject.

Development Commenced Without Planning Permission (annex b)

It is my view that the problems caused by unauthorised development which starts without proper planning permission, need to be addressed and that appropriate deterrents need to be put in place. This could of course be addressed through an amendment to the Planning (Amendment) Bill and I am considering that option. However, the paper makes it clear, that any such amendment would be subject to Executive Committee agreement, as well as Secretary of State approval in relation to the creation of a new offence. I wish to take your Committee's views on the details of this and I will ask officials to prepare a detailed case for submission to the Executive Committee and the Secretary of State seeking the necessary approvals.

Levels of Fines (annex c)

You will note that this paper outlines the levels of fines proposed in the Bill and, in particular, the provisions that will allow conviction on indictment in the Crown Court, where there would be no limit on the level of fines that the Court could impose. The paper describes the structure of the court system in Northern Ireland and, in particular, the role of the magistrates' court. You will note that the paper concludes that unlimited fines, as proposed by the Committee, would not be appropriate, given the role of magistrates' courts. I do, however, recognise that the fine level of £20,000 proposed in the Bill, was originally introduced in GB in 1991, and that the effects of inflation should be taken into account in setting a new maximum fine level. An examination of inflation rates since 1991 suggests that a figure of perhaps £30,000 would be appropriate in 2002/03. I wish to take the views of the Committee on the issues raised and I will ask officials to prepare a case to the Executive Committee and the Secretary of State proposing higher fines on this basis.

Finally, I am grateful to the Committee for the comments and recommendations it has made in relation to the Planning (Amendment) Bill. We have considered these carefully and look forward to the Committee's further comments on the policy papers attached.

DERMOT NESBITT MLA
Minister of the Environment

ANNEX A

THIRD PARTY APPEALS AGAINST PLANNING APPROVALS

Background

1. The case for introducing third party appeals has been considered on a number of occasions in the past, both for policy reasons and in the context of the requirements of the Human Rights Act and the European Convention on Human Rights (ECHR). In relation to Human Rights, legal advice to the Department, following the House of Lord's judgement on the Alconbury case, was that the planning process, with some administrative adjustment, together with the availability of Judicial Review, should satisfy ECHR requirements. The administrative adjustments proposed, introducing greater transparency into the planning process, have been made.

2. In relation to the policy case, the Environment Committee, during its discussions with officials on the Planning (Amendment) Bill, has expressed concern about the absence in the Bill of any proposals to introduce third party appeals. In subsequent correspondence, the Committee has made it clear that it is keen to see third party appeals introduced.

Policy Analysis

3. The Department has considered the subject of third party appeals on a number of occasions and, in 2001, commissioned research from Queen's University Belfast (QUB) on the possible implications for Northern Ireland's planning system of the introduction of third party appeals. In addition, further research was commissioned recently from QUB to examine the third party appeal systems available in other jurisdictions within the European Union; the scope/availability of these systems to third parties; and details of any statutory restrictions applied. All of these research projects are relevant and should help to inform discussion.

Northern Ireland Affairs Committee Report on the Planning System - 1996

4. Following its examination of the Planning system in Northern Ireland, the House of Commons Northern Ireland Affairs Committee published a Report in 1996. This Report made a number of recommendations relating to the Planning system, including the recommendation that Government should consider opening access to appeals by third parties. In its response to the Committee's Report, the Government concluded that it was not persuaded of the value of allowing third party objectors to appeal. The arguments cited by the Government included: -

• The introduction of third party appeals would represent a radical departure from the key principles on which the Planning system was founded. The Government response indicated that the purpose of the Planning system was to regulate the development and use of land in the public interest - it did not exist to protect the private interests of one person against activities of another.
• Third party appeals would add delay, uncertainty and costs to the development process and would be open to abuse.
• Article 31 of the Planning (Northern Ireland) Order 1991 already made provision for the calling of Public Inquiries to consider major development proposals, including those affecting the whole of a neighbourhood.
• Third party appeals would be too popular an avenue for disappointed neighbours or others wishing to oppose planning applications.
• One of the likely consequences of giving appeal rights to third parties would be to transfer the final decision on controversial planning applications from Ministers to the Planning Appeals Commission.
• Third parties already had other options open to them if they wished to challenge the Department's handling of planning matters.

Departmental Working Group Report

5. In late 1999, the then Department of the Environment established a working group to examine the policy case for introducing third party appeals in Northern Ireland. The project approach included discussions with the Planning Appeals Commission (PAC); DOE (Dublin); An Bord Pleanala (the appeal body in ROI); and senior professional planners within Planning Service.

6. The conclusions reached were that third party appeals had served ROI well, but that delays and increased costs were a consequence of third party appeals and their introduction in Northern Ireland would have significant resource implications for both Planning Service and the PAC and would require a comprehensive review of the planning process.

7. In addition, the Departmental working group report highlighted the significant procedures already in place within the planning system in Northern Ireland which enabled third parties to make representations, lodge objections and challenge planning decisions.

8. The working group concluded that third party appeals would create delay and uncertainty within the planning process, would have significant resource implications and should not be introduced.

QUB 2001 Research

9. In September 2000, the Department agreed to part-fund a QUB research project into the possible implications for the planning system in Northern Ireland of introducing third party appeals. The project also examined the operation of third party appeals in the Republic of Ireland (ROI). The research concluded that:

• third party appeals are generally well accepted by ROI society;
• third party appeals have a very high success rate;
• appeals often result in delay and additional costs to applicants; the research indicated that the average delay was 11.4 months;
• almost all major applications become subject to third party appeal with decisions being made by the appeal body, rather than elected representatives;
• the availability of third party appeals has resulted in an adversarial, rather than participative approach, in reaching planning decisions;
• if third party appeals were introduced in Northern Ireland, between 600 and 700 additional appeals per year could be anticipated;
• there would be a significant resource impact on Planning Service and the Planning Appeals Commission (PAC).
• substantial legislative change would be required to introduce third party appeals in Northern Ireland;
• a comprehensive review of the planning system in Northern Ireland would be required, given the high levels of participation already present in the Northern Ireland system.

10. The report made no firm recommendation as to whether third party appeals should be introduced in Northern Ireland. It did suggest, however, that any decision to introduce third party rights should be part of a wider fundamental review of the planning system.

11. The Department considers this to be an important point, since simply adding third party appeals to the existing planning system, with its high levels of public participation and consultation in the early stages, would significantly lengthen the planning application process. A review of the entire process, with specific focus on whether the current levels of consultation and participation could be maintained, would, therefore, be important.

QUB 2002 Research

12. This research, completed in early June 2002, has provided useful information on existing models of third party appeals operated in other EU jurisdictions.

13. The research findings show that third party appeals systems are operating in a number of European Countries but in a wide variety of forms. This variety stems from a number of factors, e.g.: -

• Time Limits. The time limits for making an appeal can range greatly;
• The body to which an appeal can be made. The body can be the authority that made the decision or a higher body.
• Rules of Standing. Appeals may be open to anyone or may be subject to a test of standing. There are a number of tests that can be applied and these include:

(i) restricted to any person who made a submission on the original application, or

(ii) owners or occupiers of a site adjacent to the proposed development site, or

(iii) anyone adversely affected by the proposed development, or

(iv) to specified organisations recognised to represent some aspect of the public interest.

• Type of Decision. Appeals may be available on the basis of a building permit (or permission), or legally binding plan that allocates development rights. Appeals may be based on the decision-making procedure, or the substantive basis of the decision. Appeals can be made against any decision issued by the Planning Authority or may be restricted to certain decisions only. The restrictions include: -

(i) developments subject to specific regulations, on account of their environmental effects, e.g. Environmental Impact Assessments

(ii) developments over certain size thresholds

(iii) developments not in conformity with the Development Plan,

The findings suggest that considerable work would be necessary to devise a system of third party appeals. This would have to address issues such as policy objectives, scope, the types of decisions to be covered, the means of restricting access, time limits, and how third party appeals should be integrated into the existing planning system.

Costs/Benefits of third party appeals

14. This section outlines the key arguments for and against the introduction of third party appeals. The analysis is informed by the QUB and Departmental working group research projects. The case for introducing third party rights of appeal was also considered both by a previous Northern Ireland Assembly in 1983, and, as indicated earlier, by a House of Commons Northern Ireland Affairs Committee in 1996. Although, in 1983, the then Assembly supported the introduction of third party appeals, the then Department of the Environment concluded that third party appeals would have significant resource implications, would introduce uncertainty and delay into the planning system and should not be introduced. In 1996, the Department reached the same conclusion in relation to the Northern Ireland Affairs Committee recommendations.

Benefits

• Third party appeals would tend to be welcomed by environmental groups, residents groups and the general public, in so far as they wish to extend their rights as objectors to development. They would also probably be supported by some District Councils and other elected representatives, though it is a matter for conjecture whether this preference would continue to apply if planning powers were transferred to local government.
• A third party right of appeal would provide objectors, who felt that Planning Service had not properly considered their views, with an alternative means of challenging planning decisions.
• Would be perceived as remedying an inequity (disappointed applicants can appeal to the PAC, objectors cannot).
• Developers, faced with the possibility of a third party appeal might be more willing to engage with third party objectors to produce more balanced and acceptable developments.
• The ROI experience has suggested that the availability of a third party right of appeal has resulted, on occasions, in important appeal decisions, which have safeguarded the environment.

Disadvantages

• An additional 600-700 appeals per year could result. This would have resource implications for both Planning Service and the PAC, estimated at some £1 million per year.
• The need for additional professional resources could create serious recruitment difficulties.
• Some delay and uncertainty in the planning system would be unavoidable. For example, a developer could not activate a planning permission until the period during which a third party appeal could be made (probably four weeks) had expired. If the decision was appealed, no action could be taken until the appeal was determined. This could take up to six months or, perhaps, longer. The ROI experience suggests that the average delay from a third party right of appeal is 11.4 months.
• Significant additional costs to all parties involved in a third party appeal, for example, the costs associated with legal representation and, in the case of applicants, the cost of delayed development.
• Likely to be opposed by development and business interests.
• It is possible that any additional delay and uncertainty would act as a disincentive to developers. The possible impact of third party appeals on the pace of development could cause concern to the business/development sector. Indeed a prolonged planning process caused by third party appeals could result in delays and costs to developers which might be perceived by developers as introducing a new element of uncertainty which could adversely affect investment in property development, particularly in our towns and city centres. With this in mind, the Department believes that further research is needed into the potential economic impact third party appeals might have on Northern Ireland's economy and inward investment opportunities.
• an initial examination of the replies to the Department's consultation paper "Modernising Planning Processes" suggests a mixed response with business, industry and commercial groups opposed to third party appeals and community groups, individuals and some District Councils in support.
• could be used by third parties simply to delay development. In ROI, the government has been concerned that developers are being held to ransom by objectors seeking payment in return for their objections being withdrawn. In response, new legislation in ROI has sought to restrict the right to bring forward a third party appeal, by restricting appeals to those third parties who made previous representations in advance of the planning decision, and by introducing a fee for making a representation.
• could hinder current efforts to improve efficiency within the planning process and it would be in tension with PfG aspiration for more streamlined planning system.

Adequacy of current procedures

15. There are already significant procedures in place to assist third parties to make representations, lodge objections and challenge planning decisions:-

• the neighbour notification scheme ensures that third parties close to a development are made aware of a planning application; third parties are also alerted by way of public advertisement;
• third parties are able to make representations or submit objections at planning application stage;
• at District Council consultation stage, third parties are able to lobby Councillors to object on their behalf;
• in the case of Article 31 applications, the Department is able to call for a public inquiry to enable debate about major development proposals;
• at Development Plan stage, interested groups and individuals have the opportunity to make representations in relation to draft development plans and attend public inquiries;
• where a third party is unhappy with a planning decision on a point of law, he/she may apply to the Courts for Judicial Review;
• where a third party is unhappy with the way in which the Planning Service has handled a planning application, he/she may refer the matter to the Parliamentary Commissioner for Administration.
• In addition, Planning Service has reviewed its Development Control procedures within the context of the Human Rights Act, and has introduced greater transparency into the planning process, thereby creating further opportunities for third parties to access the planning system and make representations.

The above indicates the level of measures in place through which third parties can express their objections and concerns in relation to proposed developments and the Department considers all such views when making its decisions. The Department has a continuing commitment to enhancing the ways in which applicants, third parties and objectors can interact with the Planning Service.

GB Position

16. In England, the Department for Transport, Local Government and the Regions (DTLR), in its Planning Green Paper - "Planning: Delivering a Fundamental Change"- makes it clear that it is not persuaded by the arguments for a third party right of appeal.

17. In the paper, DTLR suggests that third party appeals could add costs and uncertainties to planning, and indicates that it believes that the right way forward is to make the planning system more accessible and transparent and to strengthen the opportunities for community involvement throughout the process.

18. A review of other consultation papers covering possible changes in planning within Scotland and Wales has confirmed that this view is consistent with the position being adopted throughout GB.

Third party appeals in the Republic of Ireland

19. Although third party appeals are available in ROI, it should be noted that, in ROI, the level of participation at planning application stage is less comprehensive than in Northern Ireland, where there is considerable opportunity for participation, including current District Council consultation arrangements. The lower level of participation in ROI, heightens and supports the need for third party appeals there. This is a view endorsed by the 2001 QUB research study. Indeed, the QUB Report went on to suggest that any decision to introduce third party appeals in Northern Ireland, would require a comprehensive review of the current planning system. The report commented that any attempt to introduce third party appeals without such a review could cause long-term damage to the planning system. The 2002 QUB research has reinforced this point.

Options for Third Party Appeal Systems

20. A review of possible different models of third party appeal systems illustrates the many policy issues which would have to be addressed in the context of any decision to introduce third party appeals. A wide range of factors would have to be considered. For example:

• A need to establish clearly the policy objectives of any decision to introduce third party appeals. These objectives would dictate the main features and characteristics of any system that was to be introduced.
• A wide range of options for restricting numbers and reducing the possibility of vexatious appeals -

• Unrestricted
• Restricted to where there has been a departure from an Area Plan
• Restricted to major projects
• Restricted to projects with potential environmental impact
• Restricted by a test of standing; owners/occupiers of adjacent sites; individuals directly affected by the proposal, etc.
• Restricted to specific "watchdogs" groups

• Appeal Body - who should hear third party appeals?
• Types of decisions?

• Restricted to planning applications only
• Extended to include other decisions i.e. Listed Building consents, reserved matters applications, TPO consents etc.

• The timescales to be applied under any system of third party appeals would also have to be considered.

21. In addition, consideration would also have to be given to whether or not Article 31 decisions on major planning applications would be subject to third party appeal rights. The effect of this would be to effectively transfer decision-making on major planning applications from an elected Minister to the appeal body.

Review of Public Administration

22. The review of public administration will examine the administration and delivery of public services in Northern Ireland and the possibility exists that at least some planning functions could return to District Councils. The objective of any such transfer of functions would be to place planning decisions, which have important local impacts, under the control of democratically elected and accountable local government. Any proposed system of third party appeals would, therefore, have to be considered within the context of any administrative or organisational changes that might emerge relating to the administration of planning. In particular, the desirability of transferring a body of planning decisions from locally accountable politicians to the PAC would require careful consideration. This suggests that any attempt at this time to formulate and introduce a system of third party appeals may be premature.

Conclusions

23. His paper has identified a wide range of issues that would require careful consideration in advance of any decision on whether third party appeals should be introduced.

24. The paper indicates clearly the fundamental change that would result from a decision to introduce third party appeals into the planning system. At this time, the Minister is not persuaded of the merit of introducing third party rights of appeal given the potential impact on the existing planning process, the speed at which planning applications could be decided and given the increased delay and uncertainty that would result. The Minister is also concerned about the wider potential impact that the introduction of third party appeals might have on the Northern Ireland economy in terms of lost investment, jobs not gained etc.

25. Whilst the Minister fully recognises the desire to facilitate and protect third party interests, there are many arguments both for - on the grounds of natural justice - and against - based on the potential implications for the planning process and the possible economic implications for Northern Ireland.

26. Accordingly, the Minister believes that this major issue should be the subject of full and detailed public consultation and impact assessment.

27. The Department is continuing to actively pursue the many complex issues involved and both the Minister and officials hope to engage with the Environment Committee, on the issue of third Party Appeals.

ANNEX B

Addressing development commenced without planning permission

Background

1. During discussions with the Environment Committee about the Planning (Amendment) Bill, the Committee expressed concerns about the disregard by some developers for the requirement to obtain planning permission prior to commencing development. The commencement of unauthorised development is a cause of great concern to the general public and the Committee's view clearly is that making such development a criminal offence is the best way of dealing with the matter.

Current Position in Northern Ireland

2. In Northern Ireland the powers available to the Department to deal with breaches of planning control, including development started without planning permission, are included in two different sections of the Planning (Northern Ireland) Order 1991.

3. Article 23 provides that where it appears to the Department that development has been carried out without the grant of planning permission it may issue a notice requiring the making of an application for such permission. This provision is generally used where the Department believes that the development being undertaken would be likely to meet with planning requirements and receive planning permission if sought. However, any person failing to comply with an Article 23 notice is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale (currently £1,000.). Notices under Article 23 are normally used for minor breaches of control.

4. Article 68 provides that where unauthorised development is taking place, including development commenced without the grant of planning permission, the Department has powers to issue an Enforcement Notice requiring the breach of planning control to be remedied. Any person who fails to comply with the steps required by an Enforcement Notice within the stipulated period shall be guilty of an offence and liable on summary conviction to a fine not exceeding £5,000. These notices are normally used in respect of unauthorised development where the Department believes that a grant of planning permission would be unlikely.

Current Difficulties

5. The Department has limited powers to obtain information in respect of activities on land prior to taking enforcement action. These powers are restricted to those set out in Article 125 of the Planning (Northern Ireland) Order 1991. Enforcement procedures are also complex and include no flexibility for modification of an enforcement notice or for part enforcement. In addition, the current level of fines that the Courts can impose for non-compliance with an enforcement notice (current maximum £5,000) are considered by many to be too low, providing no real deterrent.

6. The Department has experienced difficulties in recent years in pursuing enforcement action as vigorously as it would like, in part due to the difficulties outlined above, but also because of resource difficulties. However, the Department is committed to being much more pro-active in pursuing breaches of planning control and to ensuring quicker and more effective enforcement action.

7. The above will be accommodated in part by the introduction of the Planning (Amendment) Bill. New powers will include: -

• Contravention Notices: The purpose will be to strengthen the power to obtain information prior to taking enforcement action, to encourage dialogue with any persons thought to be in breach of planning control and to secure their co-operation in taking corrective action. Any person found guilty of non-compliance with any requirement of a contravention notice will be liable to a fine not exceeding £1,000, and any person found guilty of making any statement purporting to comply with a requirement of a contravention notice, which he knows to be false or misleading, will be liable to a fine not exceeding £5,000.
• Injunction: It is proposed to give the Department an express power to apply to the High Court for an injunction to prevent any actual or threatened breach of planning control. The intention is to integrate injunctions into the range of enforcement powers available to the Department so that they may be used whether or not other enforcement powers have been, or may be, used.
• Reduction in legal complexity: It is intended to reduce the legal complexity of the provisions that apply to the preparation, issue and service of enforcement notices. This should minimise the possibility of minor drafting errors, or legal or technical deficiencies which can result in a notice being quashed. The provisions will provide the Department with flexibility to require only partial remedy of a breach of planning control where, at the time of enforcement, a total remedy is notconsidered necessary. The provisions will also allow for the withdrawal or variation of an enforcement notice, without prejudice to the Department's power to issue a further notice.
• Increased penalties: To avoid the situation whereby a person is not deterred by the financial penalties imposed by the courts for breaching an enforcement notice, it is proposed: -

(i) to increase the maximum level of fine, on summary conviction in the magistrates court, from £5,000 to £20,000; and

(ii) for the first time in Northern Ireland, in relation to general enforcement powers, to allow for a person to be convicted on indictment in a Crown Court for this type of offence. In these circumstances the courts would be able to impose an unlimited fine.

When determining the level of fine in either case, both the magistrates court and the Crown Court shall be required, in particular, to have regard to any financial benefit which has accrued, or appears likely to accrue, in consequence of the offence. The clause also makes it clear that a person found guilty of an offence, and who continues not to comply with a notice, may be guilty of a further offence, and subsequently, of still further offences until there is compliance with the notice.

In addition, a person found guilty of an offence involving demolition, or alteration or extension of a listed building affecting its character will be liable: -

• on summary conviction, to a term of imprisonment not exceeding 6 months or a fine not exceeding £20,000 or both; or
• on conviction on indictment, to imprisonment for not more than 2 years, or a fine.

• Stop Notice: It is proposed that, when urgent action is required, a Stop Notice will be able to take effect immediately. To ensure parity with the new penalties for non-compliance with an Enforcement Notice, increased penalties are being introduced: -

• the maximum level of fine in the magistrates court for contravention of a Stop Notice will be increased from £5,000 to £20,000 on summary conviction;
• statute will allow, for the first time in Northern Ireland, for a person to be convicted on indictment in the Crown Court for this type of offence; and,
• the courts will be required to take account of any benefits accrued or which appear likely to accrue as a result of the offence.

The proposed level of increased fines in the Bill is a further issue about which the Committee has expressed views. A separate paper dealing with this issue and possible amendments to proposed fine levels has been submitted to the Committee for discussion.

8. The Department has indicated to the Committee that the new powers and higher penalties within the Bill, together with the Department's commitment to pursue enforcement more vigorously and, where appropriate, through the Crown Court, will enable quicker and more effective enforcement action to be taken in relation to all breaches of planning control, including development started without planning permission. The Committee, however, has continued to express concern that not enough is being done and that commencing development without planning permission should become an offence.

Current Position in GB

9. Over the years, the Westminister Government has continually resisted repeated attempts to make breaches of planning control criminal offences on the grounds that it was unnecessary, and that existing enforcement procedures provided a more pragmatic approach to dealing with breaches of planning control.

10. In its consideration of the Planning and Compensation Bill, on which the current Northern Ireland Planning (Amendment) Bill is largely based, the Government resisted several amendments, moved at different parliamentary stages, aimed at making breaches of planning control criminal offences. Ministers expressed the view that the other enforcement provisions provided by the Bill were sufficiently strong to overcome flagrant breaches of planning control. The Government argued that instead of making individuals who breach planning control potential criminals, that a more appropriate approach would be to give planning authorities more substantial enforcement powers with which they could respond to any particular breach of planning control. The Government regarded this as a pragmatic and cost-effective approach to the enormous range of planning control issues.

11. In December 2001, the Department for Transport, Local Government and the Regions (DTLR) issued a Green Paper entitled "Planning: Delivering A Fundamental Change", which, amongst other things, included a section on better enforcement. This section stated that deliberate evasion or abuse of the planning system was unfair to others and brought the system into disrepute and that more effective sanctions against those trying to cheat the system was needed.

12. The Green Paper concluded that DTLR (now the Office of the Deputy Prime Minister [ODPM]) would review current arrangements with the intention of introducing simpler procedures. As part of that process, it is proposed to consider whether punitive charges for retrospective applications should be considered and whether a deliberate breach of planning regulations should constitute an offence immediately pursuable through the courts.

13. Further separate public consultation on enforcement measures is proposed by ODPM and this is expected to begin in July 2002. The Department will carry out careful monitoring of this consultation exercise.

Republic of Ireland Position

14. Under Section 151 of the Republic of Ireland's (ROI) Planning and Development Act 2000, it is an offence to commence development without first having obtained planning permission. Provision also exists, however, for normal enforcement action to be taken using enforcement procedures similar to those that exist in Northern Ireland. Consideration of the most up-to-date statistics available from the Department of Environment and Local Government in Dublin and discussions with officials there has provided the following information on both direct prosecution through the Courts and on enforcement action taken by the various planning authorities during 1999:-

• 27 prosecutions were initiated through direct recourse to the Courts and 2 convictions were obtained;
• 234 prosecutions were initiated for non-compliance with a warning notice and 5 convictions were obtained; and
• 1,135 enforcement notices were issued and 205 convictions were obtained.

Advice from ROI officials is that prosecution in the Courts, without first seeking a resolution through available enforcement procedures, can be difficult to achieve and that the Courts will generally expect normal enforcement procedures in place to have been exhausted, before cases are brought to Court.

15. The legislative framework in ROI has been amended with the introduction of the Planning and Development Act 2000, the enforcement measures of which came into force on 11 March 2002. This Act amends earlier enforcement provisions, but provides a broadly similar basis for dealing with breaches of planning control.

QUB Research

16. In April 2002, the Department commissioned research by Queens University to: -

• Identify planning enforcement systems operating in other jurisdictions of the European Union;
• Establish the mechanisms available to deal with breaches of planning control within these systems; and
• Evaluate the effectiveness of such mechanisms and where possible focussing specifically on the deterrent value of the facility and the merits of punitive measures.

This research has now been completed. Consideration of the research findings indicates that there is possible merit in making it an offence to start development without planning permission. The research suggests that where it is transparent to the developer that the consequences of unauthorised development will be severe, planning enforcement is more effective. In the Republic of Ireland, the perception of those surveyed, working in enforcement, is that the deterrent value of strong legislative provisions, such as provisions making it an offence to commence development without planning permission, is likely to make a positive contribution to the effectiveness of an enforcement system.

17. The research confirms that most of mainland Europe has a plan led system and that development plans are legally binding. In addition, it is an offence in most jurisdictions to start development without the necessary permissions. A few comments on the systems which appear to be most effective are provided below:-

• France

The number of breaches of planning control in France is relatively low. The research concludes that the success of the French system is underpinned by the legally binding development plan and the procedures in place to ensure that its requirements are met, including the need to obtain a permit to begin construction, the inspection of sites at all stages of development and the need to obtain a declaration of satisfactory completion. Such procedures ensure that unauthorised development is kept to a minimum.

• Spain

Licences have to be obtained to carry out all development, demolition or land sub-division. Spain no longer experiences the level of unauthorised development it suffered in the 1960s and 1970s, although there are still relatively high levels of minor breaches of control. Although punitive measures appear to have deterred major offenders, it is recognised that inadequacies in practice and procedure, most importantly a lack of trained personnel and an absence of the will to enforce, has resulted in a high numbers of minor offences.

• Germany

The German planning system is characterised by a strong legal framework and each of the regions establishes a comprehensive plan for its territory in conformity with guidelines ensconced in the federal comprehensive regional planning law. It is an offence to carry out development without permission; indeed this forms the basis of an enforcement system that is perceived to be reasonably effective. In general, enforcement procedures are not used very often, largely due to the clear definition of development rights contained in the provisions of the federal and regional plans. An additional reason for the effectiveness of the German system is that when serious breaches of control occur, the law is applied to its maximum effect thereby deterring would be offenders.

In summary, the research suggests that severe and tough enforcement provisions provide a strong deterrent against unauthorised development.

Issues

18. Any decision to make it an offence to commence development without planning permission would require the consideration of various important issues in terms of how any such provision would be used: -

• If it were decided to pursue a breach of planning control directly through the courts, decisions to do so would have to be made early in the process. In deciding when to prosecute a range of factors would have to taken into account: -

(i) The evidence available;

(ii) The seriousness of the breach; and

(iii) A judgement as to whether it is in the public interest to pursue the prosecution.

• It would be extremely important that the Department used its powers equitably and not just to target large developers. This reinforces the need for careful consideration about how and when such a power would be used.

In addition, any decision to introduce new powers would require Executive Committee approval, as well as the consent of the Secretary of State, on the creation of any new offence.

Conclusions

19. In view of the Committee's continuing concern and representations; the findings of the QUB research; and the Minister's empathy with the Committee's views, the issue needs to be addressed during the Committee stage of the Planning (Amendment) Bill.

20. In response to the Department's public consultation paper setting out its proposals for the Planning (Amendment) Bill, only one consultee recommended that it should be unlawful to start development without planning permission. Other consultees, however, expressed general concern about the issue and the need to address the problem, but with no specific recommendations.

21. The creation of a new offence could be achieved through an amendment to the Planning (Amendment) Bill and the Minister is considering that option. Any such amendment, however, would require further careful consideration and examination of how a new offence would be applied and operated in practice. It would also be subject to Executive Committee agreement and further discussions with the Secretary of State in relation to the creation of a new offence.

22. Subject to the views of the Committee, the Department now intends to prepare a detailed case for submission to the Executive Committee and the Secretary of State seeking the necessary approvals.

23. Both the Minister and officials propose to have further discussions with the Environment Committee as proposals are developed.

ANNEX C

PROPOSED LEVELS OF FINES

Background

1. The Planning (Amendment) Bill 2002 proposes to increase the maximum level of fines that magistrates' courts can impose in relation to a range of offences under the Planning (Northern Ireland) Order 1991.

2. Under the 1991 Order, the maximum fine which the courts can impose, for example, in the case of non-compliance with an Enforcement Notice is £5,000. The Planning (Amendment) Bill 2002, introduced to the Assembly on 10 June, includes provisions to increase the maximum level of fine, on summary conviction, from £5,000 to £20,000. Provisions are also included to allow, for the first time in Northern Ireland, a person to be convicted on indictment in the Crown Court for this type of general enforcement offence. In the latter case, there will be no limit to the fine that the Crown Court can impose. Importantly, both courts when determining either level of fine shall, in particular, have regard to any financial benefit, which has accrued or appears likely to accrue, in consequence of the offence.

3. Similar increases in the levels of fines are proposed within the Bill for other offences relating to, for example, Stop Notices, breaches of Tree Preservation Orders, offences relating to listed buildings and offences relating to hazardous substances.

4. The Department believes that the proposed increases are significant and that the ability, which has not previously been available, to pursue cases on indictment through the Crown Court, with no limit to the fines that can be imposed, will act as a significant deterrent against unauthorised development. Similarly, proposals in the Bill relating to listed buildings will significantly strengthen the penalties available to the courts in cases where an individual is found guilty of an offence involving demolition of a listed building, or alteration or extension of a listed building affecting its character, by introducing custodial sentences. In such cases, a person would be liable on summary conviction to a term of imprisonment not exceeding 6 months or a fine not exceeding £20,000 or both; or on conviction on indictment to imprisonment for not more than 2 years, or a fine. The courts when determining either level of fine shall, in particular, be required to have regard to any financial benefit, which has accrued or appears likely to accrue in consequence of the offence.

Environment Committee comments

5. During discussions with Departmental officials to discuss the Planning (Amendment) Bill, the Environment Committee has expressed concern that the proposed levels of fines in the Bill are too low. The Committee has suggested that the levels of fines in the magistrates' court should be higher, or, indeed, that there should be no maximum level, thereby leaving it to the magistrate to decide the appropriate level of fine for any particular case.

ISSUES

6. In determining the proposed levels of fines to be included in the Bill a number of important considerations need to be examined.

The Role of the Courts

7. It is important firstly to consider the court structure in Northern Ireland in terms of the prosecution of offences. The law recognises that not all crimes are equally serious by providing two different forms of procedure and trial. Less serious offences are dealt with by a summary trial in a magistrates' court. These are generally relatively minor offences not considered serious enough to merit the extra time and expense required for trial on indictment. More serious offences are tried on indictment in the Crown Court.

8. The vast majority of criminal offences dealt with in Northern Ireland are tried summarily in magistrates' courts. Summary trial is quicker and less expensive than trial in the Crown Court, and the sentence that a magistrate can impose is much less severe than the sentence that could be imposed by a judge in the Crown Court. Generally, including planning matters, the most serious punishment that a magistrate can impose is a fine of £5,000 or six months in prison or both. However, the most common punishment in magistrates' courts is a fine.

9. Advice from the Northern Ireland Court Service is that a magistrates' court will always be limited in the fine it may impose by the statutory enactment empowering the imposition of the fine, ie magistrates' courts are never totally unfettered in their discretion to impose a fine and a maximum fine level is always imposed in statute. For summary offences the maximum fine will usually be expressed in terms of a level on the standard scale. Article 5(1) of the Fines and Penalties (NI) Order 1984 (as amended by Article 3(2) of the Criminal Justice (NI) Order 1994) created a standard scale of fines with five levels:

Level 1 Not exceeding £200

Level 2 Not exceeding £500

Level 3 Not exceeding £1,000

Level 4 Not exceeding £2,500

Level 5 ('Statutory maximum') Not exceeding £5,000

10. Consultation with the Court Service has indicated that in the case of offences that may only be dealt with in a magistrates' court, it would be unusual for the maximum fine to exceed £5,000. The Planning (Amendment) Bill, by prescribing maximum fines of £20,000, is already going well beyond the limits of the standard scale. The proposed level of £20,000 will, however, bring Northern Ireland's planning legislation and the prescribed levels of fines into line with GB and the Secretary of State's consent to the proposed levels has been obtained in accordance with the requirements of the Northern Ireland Act.

11. Given the respective responsibilities for offences and penalties of the magistrates' courts and the Crown Court, the Department does not believe that it would be appropriate to seek to introduce unlimited fines, as proposed by the Environment Committee.

Effects of Inflation

12. The Department does, however, recognise the Committee's concern that when cases go before a magistrates' court the penalties that the court can impose should be as high as possible. The Department also recognises that the level of £20,000 now proposed in the Planning (Amendment) Bill was originally introduced in GB in 1991. The Department accepts that the effects of inflation since 1991 should be considered. An examination of inflation rates suggests that a figure of perhaps £30,000 would be appropriate in 2002/03 and the Department will now consider presenting a case to the Executive Committee and the Secretary of State on this basis.

13. The Department realises that the Committee may feel that even a figure of £30,000 is still too low. The Committee is reminded, however, of the Department's commitment to pursue enforcement more vigorously in future and, where appropriate, to pursue the more serious breaches of planning control through the Crown Court. In such cases, there would be no limit on the level of fines that the Court could impose and, in deciding the level of fine, the Court would be required to take into consideration any financial benefit likely to accrue in consequence of the offence. Where an offence involves a less serious breach of planning control, the Department is satisfied that a maximum fine level of £30,000, which would represent a significant increase to the current level of £5,000, would be reasonable. The Committee should note that, even in these circumstances, the courts, when deciding the level of fine, will be required to take into consideration any financial benefit likely to accrue in consequence of the offence.

Percentage Fines

14. One further point raised by the Committee was the possible benefits of percentage fines. The intention was that these would be related to the likely level of profit that a developer might accrue through activities that breached planning control. The Department has considered the proposal but strongly believes that the freedom and discretion of the courts to determine appropriate punishments, including fine levels should not be undermined. The Committee will have noted that the proposals in the Bill will require the courts to take account of any financial benefit likely to accrue in consequence of an offence in deciding the level of fines. The Department believes that any more prescriptive requirements limiting the discretion of the Courts would be inappropriate.

15. The Committee may be aware of similar proposals to introduce a system of "unit fines" in England and Wales. These were introduced under the Criminal Justice Act 1991 and were meant to ensure that fines imposed by the courts would be related to a defendant's own personal circumstances. The system, which restricted the discretion of the courts, was so severely criticised by magistrates' and others in England and Wales that, in 1993, the Home Secretary announced that it was to be abolished.

CONCLUSIONS

16. Having considered the issues in this paper and recognizing the Committee's concern that fine levels in the magistrates' courts should be as high as possible, the Minister does not believe that substantially higher fines, or unlimited fines, would be appropriate given the structure and roles of magistrates' courts.

17. The Minister does recognise, however, that the level of £20,000 now proposed in the Planning (Amendment) Bill was originally introduced in GB in 1991 and that the effects of inflation since 1991 should be taken into account in setting a new maximum fine level. An examination of inflation rates suggests that a figure of perhaps £30,000 would be appropriate in 2002/03. The Minister wishes to take the Committee's views prior to putting forward a case to the Executive Committee and the Secretary of State.

18. Finally, the Minister and officials would welcome the Committee's comments on this issue.

ANNEX 14

LETTER FROM:
DEPARTMENT OF THE ENVIRONMENT

24 June 2002

PLANNING (AMENDMENT) BILL - QUB RESEARCH PAPERS ON THIRD PARTY
APPEALS AND CREATION OF A NEW OFFENCE FOR UNAUTHORISED DEVELOPMENT

During recent presentations on the Planning (Amendment) Bill officials advised the Committee that research had been commissioned from Queen's University Belfast on the above subjects. The Committee indicated that it would like to receive copies of the research papers when available.

The research reports were received earlier this month and a hard copy of each will be delivered to the Committee today. Summary analysis papers on each report have been prepared by the Department and copies are enclosed.

JENNIFER MCCAY
(Acting Assembly Liaison Officer)

ANNEX A

SUMMARY OF QUB RESEARCH FINDINGS ON THIRD PARTY APPEALS - JUNE 2002

1. On 22nd March 2002, the Department commissioned a research project into third party appeals from Queens University Belfast. This research was to be an extension of his previous research on this issue and was commissioned under the following terms of reference: -

• Identify those planning systems loosely based on British model of planning that have third party appeal mechanisms;
• For those systems, describe the third party appeal procedures and assess the statutory restrictions on third parties who wish to make planning appeals;
• Briefly review other European planning systems, identifying how they deal with third party objections and describe any mechanisms, if any, that may be relevant to the consideration of third party appeals in a Northern Ireland context;
• Provide an update on the impact of third party planning appeals in the Republic of Ireland, taking into account the impact of the restrictions introduced as part of the Planning and Development Act 2000;
• Outline a number of options for third party appeals that could be considered in a Northern Ireland context.

2. The research found that there were significant problems in making direct comparisons with the situation in Northern Ireland and other EU planning systems due to the different legal and planning systems in place. However, the research provides useful information on existing models of third party appeals operated in other EU jurisdictions.

3. The report findings were received in early June 2002 and are summarised below.

7.3 Main Findings

• Almost all other EU jurisdictions allow some form of third party appeal. Case studies reviewing how third party appeals are operated in other jurisdictions are provided.
• Third party appeal systems exist for a wide variety of reasons (Report Summary section 4):

• Protection of property rights
• To help secure the broader public interest
• For environmental protection reasons

• There is considerable variation in how each system of third party appeals operates (Report Summary Section 4). For example:

• In Denmark, appeals are allowed for environmental decisions only. Only specified environmental organisations allowed to appeal. Appeals must be made within 8 weeks of decision.
• In France, anyone may appeal any decision. Neighbours and environmental organisations have enhanced status. For these groups, appeals must be made within 6 months of decision.

Bureaucratically cumbersome, taking up to 3 years to resolve - extended period of uncertainty for development proposals.

• In Netherlands appeals must be made within 6 weeks. Appeals are made to deciding authority. Further opportunities to appeal to higher courts. Almost anyone can appeal

• It is essential to establish clearly the purpose of third party appeals (Report Summary 5.1). Purpose/origins identified are varied:

• To provide an accountability mechanism
• To safeguard individual rights
• Forum for public interest litigation, and in particular, environmental protection
• As a safeguard to adjacent landowners property rights
• Enhancement of public participation in planning decisions
• As a concession to popular and political pressure

• A wide variety of options is possible and many related issues need to be considered (Report Summary 5.2, 5.3, 5.4, 5.5) relating to:

• Nature of appeal body?
• Which third parties can appeal?
• Decisions that can be appealed?
• Time limits?

• Northern Ireland - third party appeals should not merely be inserted into the existing planning system. Broader procedural changes would be required to "retune" existing planning system (Report Summary 5.1)

ANNEX B

SUMMARY OF QUB RESEARCH FINDINGS ON THE CREATION OF A NEW OFFENCE FOR 
UNAUTHORISED DEVELOPMENT - JUNE 2002

*All references to page numbers relate to page numbers in the research report

1. On 22nd March 2002 the Department commissioned a research project into the creation of a new offence for unauthorised development under the following terms of reference: -

• Identify planning enforcement systems operating in other jurisdictions of the European Union
• Establish the mechanisms available to deal with breaches of planning control within these systems
• Evaluate the effectiveness of such mechanisms and where possible focus specifically on the deterrent value of the facility and the merits of punitive measures.

2. The research found that to draw conclusions about the different systems of planning enforcement in the European Union could only be assessed in relation to their own aims within their own legal and constitutional contexts, and it was not possible to say that one country's legal framework is better than that of another. (Page 115). The research paper, however, makes a number of helpful findings and recommendations.

Main Findings

• It is an offence in most of Europe to carry out development without permission. Examples are covered in the Report on pages 63, 79, 90, 97, 103 and 108.
• Most European systems require a building permit and enforcement action and punitive measures can be instigated if this is not obtained.

In Spain, the level of unauthorised development has reduced in relation to major development. Strong punitive measures appear to have deterred offenders. (Pages 97 and 101)

• The plan led legally binding system, when applied appropriately, is effective

In France, the success of the system is underpinned by the legally binding development plan and the procedures in place to ensure that its requirements are met. The number of breaches in France is relatively low. (Page 85)

• There appears to be merit in making it an offence to carry out development without permission.

In the Republic of Ireland, it is perceived that this law could make a positive contribution to planning enforcement in Northern Ireland. Punitive measures that became effective in March 2002 in ROI are perceived as a deterrent that will reap significant benefits. (Page 72)

• A number of other issues are identified in the conclusions of the report as necessary to make enforcement more effective: -

Enforcement should have equal status with forward planning and development control. (Page 117)

Allocation of resources and staff training - Evidence from Spain and the Netherlands, demonstrates that, although robust legislative frameworks are in place, without sufficient staff and resources, the systems remain relatively ineffective. (Issues 3 & 4 on Page 118)

Linkage with Building Control - Potential proactive benefits to be obtained from communication between Planning and Building Control authorities. (Issue 5 on Page 119)

Public Guidance - If public were provided with enforcement guidance at Department's information desks, this could result in time saving benefits for enforcement officers. (Page 120)

Profile of Enforcement Outside Department - Publicity of successful enforcement action would have benefits for Northern Ireland by increasing public awareness of the punitive measures resulting from prosecution and deterring potential offenders from flouting the law. (Page 120)

Encouragement to Comply - In addition, the report suggests that a facilitative philosophy that fosters a climate supportive of enforcement policy goals should be adopted. (Issue 8 on Page 121)

4. Conclusions for Northern Ireland

The report concludes that making it an offence to commence development without permission is a fundamental component of an effective planning enforcement system and has the potential to make a significant positive contribution to the planning system in Northern Ireland. (Page 92)

The key conclusion of the report is that when there is clear scope for the application of legal sanctions, and it is transparent to the developer that the consequences of unauthorised development will be severe, planning enforcement represents less of a problem. (Page 121)

ANNEX 15

SPEAKING NOTES FROM:
DEPARTMENTAL OFFICIALS 4 JULY 2002

PLANNING (AMENDMENT) BILL

The Committee will already be familiar with the background to this proposed Bill. Briefly, its purpose is to: -

• enhance and strengthen the Department's existing planning enforcement powers; and,

• give primacy to development plans in the determination of planning applications.

Overview

This Bill meets a commitment given by a previous administration to the House of Commons Northern Ireland Affairs Committee to introduce into Northern Ireland's planning law the new enforcement provisions contained in the Planning and Compensation Act 1991 in England, Scotland and Wales. It largely meets this commitment and introduces some new measures such as Building Preservation Notices that were already a feature of planning law elsewhere in the UK.

As requested, the following is a summary of the clauses in the Bill, indicating where applicable, issues raised by respondents to the consultation and by the Environment Committee. The absence of any specific comment indicates that either no comments were made or there was general support for the proposal.

Clause 1 - Planning Contravention Notice

This clause provides for the issue of a Planning Contravention Notice, the purpose of which is to strengthen the Department's power to obtain information prior to taking enforcement action, to encourage dialogue with any persons thought to be in breach of planning control and to secure their co-operation in taking corrective action.

Failure to comply with such a Notice within 21 days of its service would be an offence, liable on summary conviction, to a fine not exceeding level 3 on the standard scale (currently £1,000).

In addition, any person who makes a false or misleading statement in respect of a notice will be liable on summary conviction to a fine not exceeding level 5 on the standard scale (currently £5,000).

Failure to comply with a Notice could also affect any future entitlement to compensation payable in connection with Stop Notices.

Responses

Three responses suggested some minor changes to the detail of what is proposed, for example, that there should be full disclosure of information.