Report on the Clean Neighbourhoods and Environment Bill

Clean Neighbourhoods and Environment Bill Report.pdf (10.59 mb)

Committee for the Environment

Report on
the Clean Neighbourhoods and Environment Bill (NIA 31/09)

Together with the Minutes of Proceedings, Minutes of Evidence and 
Written Submissions Relating to the Report

Ordered by The Committee for the Environment to be printed 27 January 2011
Report: NIA 08/10/11R Committee for the Environment

Session 2010/2011

Fourth Report

Membership and Powers

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

The Committee has power to:

-

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

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

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

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

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

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

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

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

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

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

8 On 1 February 2010 Jonathan Bell replaced Mr Adrian McQuillan.

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

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

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

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

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

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

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

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

Table of Contents

Report

Executive summary

Recommendations

Introduction

Consideration of the Bill by the Committee

Key issues 16

Clause by clause consideration of the Bill

Appendix 1

Minutes of Proceedings

Appendix 2

Minutes of Evidence

Appendix 3

Written Submissions

Appendix 4

List of Witnesses

Appendix 5

Research papers requested by the Committee

Appendix 6

Other papers submitted to the Committee

Executive Summary

Purpose

1. This report sets out the Committee for the Environment’s consideration of the Clean Neighbourhoods and Environment Bill.

2. Members sought a balanced range of views as part of their deliberations on the Clean Neighbourhoods and Environment Bill and requested evidence from interested organisations and individuals as well as from the DOE.

3. The Committee made eight recommendations in relation to the Bill and the Department agreed to amend three clauses to address some of these. In addition the Committee accepted the advice of the Examiner of Statutory Rules relating to seven powers in the Bill which allow the Department to make orders to alter the amount of a Fixed Penalty Notice. The Department agreed to amend these in accordance with the Committee’s recommendation.

4. Although the Committee was broadly supportive of the Bill and agreed the large majority of the clauses without dissent, a number of key issues were identified which are highlighted below.

Key Issues

• Delegated powers of the Bill
• Fixed penalty notices
• Gating orders
• Parking 2 or more motor vehicles on the road side for sale within 500 metres of each other
• Repairing vehicles on a road
• Prescribed periods for landowner objections
• Definition of litter
• Penalty for failing to provide name
• Fixed penalty notices for litter
• Notice period for clearing litter
• Exemption of Crown Land
• Legislation for unsightly and unkempt gardens
• Street litter
• Free distribution of printed matter
• Fly-posting
• Flags and emblems
• Maximum number of dogs on leads
• Exclusion of private land from Dog Control Orders
• Delineating between responsibilities of local authorities and the PSNI
• Differentiating between intruder alarms and smoke alarms
• Informing of alarm designation areas and their withdrawal
• Obtaining details of key holders
• Powers of entry
• Liability for damage caused to alarms by councils
• Noise from illegal motor sports tracks
• Silting up of water courses
• Including pigeons as a statutory nuisance
• Definition of ‘owner’
• Vacant land
• Guidance
• Phased implementation
• Cost of the Bill
• Overcrowding
• Child Poverty
• Multi-agency approach
• Anti-social behaviour orders
• Rural proofing

Delegated powers of the Bill

5. In relation to concerns about seven powers in the Bill which relate to altering fixed penalty payments the Committee agreed with the Examiner of Statutory Rules that these should be subject to draft affirmative procedure and the Department agreed to make these amendments.

Fixed penalty notices

6. A suggestion was made that incentives to encourage payment within a shorter timeframe should be in the Bill. The Department indicates that the draft legislation already includes this provision.

7. A lack of consultation with the business community on the proposals was highlighted despite the proposals having serious consequences on small businesses.

8. Opposition to introduce Fixed Penalty Notices to children and young people came from groups representing this section of the community. Some Members also expressed concern at this. The Department acknowledged that a different approach may be required in relation to children and that guidance on this issue will be consulted on.

Gating orders

9. On the issue of Gating Orders the Committee received a range of opinions. Local councils for example welcomed their introduction as a means to resolve anti-social behaviour and illegal dumping while children’s organisations raised serious concerns that Gating Orders had the potential to restrict the ability of children to have free access in their home environment and therefore inhibit their independence. These organisations also questioned the value of such orders to reduce crime or anti-social behaviour suggesting that these would simply be displaced to another area where Gating Orders have not been implemented and also reduce adult supervision of children. Yet another concern was the possibility that this provision would raise the expectations of residents for alleyways to be gated.

10. The Committee acknowledged these legitimate concerns and reflected this in a recommendation that the Department should remind councils to engage in a comprehensive consultation with all stakeholders prior to making a Gating Order.

Vehicles

Parking two or more vehicles on the road side for sale within 500 metres of each other

11. Although the clauses relating to vehicles were generally welcome, clarification was required to distinguish between selling a car on the road and from a driveway. The Committee was satisfied that the clause did not prevent anyone selling a car from their driveway but was intended to deal with nuisance parking such as businesses using the road as a “mock showroom" and allowed councils to issue a fixed penalty and keep the receipts.

Repairing vehicles on a road

12. Submissions received by the Committee on the issue of businesses using roads to repair cars were largely supportive of the Bill. The Committee acknowledged that while there might be a detrimental impact on some businesses it was necessary to create a level playing field and encourage all small businesses to operate more responsibly. The Committee was reassured that the provision would not apply to owners of broken down vehicles who, in any case, had 72 hours to remove their vehicle and accepted that further amendments to the Bill, to address taxi businesses operating from domestic premises for example, were not achievable within the legislative timeframe.

Prescribed periods for landowner objections

13. Some councils advised that there should be further clarification on the period for objections from landowners on vehicle removal and from vehicle owners on disposal of vehicles. However the Committee was content that these periods would be prescribed in other DOE and DRD regulations which would be consulted on as soon as possible.

Litter

Definition of litter

14. Although some consultees advocated a broader definition of litter and suggested amendments to provide definitions comparable to legislation in England and Wales the Committee accepted the Department’s position that the definition is comprehensive. They also agreed that ‘littering in water’ was covered by the dropping of litter ‘in any place’.

Penalty for failing to provide a name

15. The issue related to failing to provide a name was whether this should be addressed by a fixed penalty or whether this should be an offence considered by the court. Children’s organisations opposed making this measure an offence citing limited consultation with them and suggesting it contravened Section 75 obligations. The Committee ultimately did not see any advantage in introducing a fixed penalty system because in the absence of a correct name it could not be administered plus the Department advised that on summary conviction for giving false information or failing to give information, the fine would rise from £200 to £1000.

Fixed penalty notices for litter offences

16. Although current proposals bring the level of fixed penalty notices on par with England concern was expressed that this was still too low. The Department explained that the suggested level (£75) was the default level but that local councils, like their counterparts in England, could specify their own level. The Department maintained that fixed penalty notices are an effective way to deal with littering offences and councils still had the option to prosecute offenders where they deemed such action appropriate.

Notice period for clearing litter

17. The notice period for and exemptions to Litter Clearing Orders were felt by some respondents to the Committee’s call for evidence to be too long. However the Committee accepted that the notice period relates to the length of time allocated to making an appeal.

Exemption of Crown Land

18. Some respondents were concerned at the proposed exemption for Crown Land or land of an educational institution but the Committee accepted that these were already covered under a statutory duty to be kept clear of litter.

Legislation for unsightly and unkempt gardens

19. Several councils called for the Bill to make provisions for them to address unsightly and unkempt gardens and the Department advised that this is addressed through the new ‘litter clearing notice’ in Clause 17.

Street Litter

20. Concerns were raised about litter generated by offices and commercial multi-occupancy tenancy premises as a result of new smoking legislation. The Department confirmed that this will be addressed through subordinate legislation which will be put out to consultation.

Free distribution of printed matter

21. Distribution of free literature is possible in areas designated for this purpose. However the concern of some councils that it would be necessary to prove that the person distributing literature was aware that an area was not designated for this purpose was countered by the Department which referred to the requirement of the councils to make this information available to the public. Importantly there are exemptions for material distributed for charitable, religious and political purposes. The Committee also accepted the Department’s response on how this issue extends to Crown Land.

22. The Committee recognised the reliance of small businesses on fly-posting and free distribution of printed material to advertise their services and made a recommendation to address this.

Graffiti and other defacement

Fly-posting

23. It was suggested that it would be impossible for councils to administer the proposals relating to fly-posting due to the time-consuming and costly nature of removing fly-posters. However, there is provision for councils to administer a fee to cover these costs.

24. Despite Committee concerns the Department acknowledged that under this Bill the owners of buildings defaced by fly-posters could not recover the costs from the beneficiaries of the fly-posting.

25. The Committee agreed to make a recommendation that councils should be encouraged to provide spaces where small and medium sized businesses could place advertising material for free or a small administration charge.

Flags and Emblems

26. This was raised by one organisation that felt the Bill should be used to address these issues. The Committee accepted the Department’s response that flags and emblems are being addressed in the Executive’s inter-agency ‘Joint Protocol in relation to the Display of Flags in Public Areas’.

Dogs

Maximum number of dogs on leads

27. Some concerns were raised regarding the maximum number of dogs to be walked by one person and the requirement for authorised officers to undergo training in dog behaviour in order to be able to recognise when to use the Dogs on Leads Direction Order. The Department was clear that the number of dogs to be walked by one person could be managed by local councils who would be given the power to create their own exemptions.

28. The Committee agreed to make a recommendation that councils adopt a balanced approach to the maximum number of dogs to be walked by one person and that officers tasked with enforcing the legislation undergo training in dog behaviour.

Exclusion of private land from Dog Control Orders

29. In response to councils’ concerns the Department clarified that land in private ownership such as sports grounds and leisure parks would be included under Dog Control Orders as they are areas to which the public is entitled to access.

Noise

Delineating between responsibilities of local authorities and the PSNI

30. In response to concerns about delineating between the responsibilities of councils and the PSNI in respect of road use regulations, the Department stressed that the new provisions relating to alarm notification areas are aimed at premises fitted with audible intruder alarms not vehicle alarms.

Differentiating between intruder alarms and smoke alarms

31. Several respondents were concerned about the difficulties of determining between intruder and smoke alarms and suggested the inclusion of provisions for both within this Bill. The Department indicated that the new provisions are to deal with intruder alarms and supplement rather than replace existing council powers for audible alarms.

Informing of alarm designation areas and their withdrawal

32. Councils were concerned that the requirements for notifying about alarm designations would be onerous and costly. The Department indicated it would be issuing guidance making it clear that existing council publications would be an acceptable form of communication for this requirement.

Obtaining details of key holders

33. Councils were concerned about the difficulty of obtaining details of key holders but the Committee was content with the Department’s response indicating that the new powers will make it mandatory to notify councils of nominated key holders.

Powers of entry

34. Councils sought clarification between ‘premises’ and ‘property boundaries’ in relation to their powers of entry to silence an alarm. The Department clarified that a special warrant will not be required to enter property boundaries to silence an alarm.

Liability for damage caused to alarms by councils

35. The Committee sought confirmation that councils would not be held liable for damage to an alarm when trying to silence it. The Department confirmed this was the case provided their action was carried out ‘in good faith’.

Statutory Noise

Noise from illegal motor sports tracks

36. The Committee asked if the new provisions would provide powers to councils to deal more effectively with noise emitted from land that is prejudicial to health or a nuisance. The Department confirmed that Clause 60 of the new Bill allowed councils to serve an Abatement Notice if they were satisfied that the noise from the illegal motor sports track is a statutory nuisance.

Silting up of water courses

37. The Committee sought confirmation that the natural silting up of water bodies could not be constituted a statutory nuisance under Clause 60(1)(l). The Department confirmed that case law in England has established that where a natural water course becomes silted up by natural causes the landowner is unlikely to be held liable.

Including pigeons as a statutory nuisance

38. Many submissions to the Committee called for the inclusion of pigeons under statutory nuisance provisions. However the Committee was content with the Department’s response indicating that the Bill as drafted provides sufficient scope for councils to deal with pigeons.

Definition of ‘owner’

39. The Committee agreed with the many respondents that suggested the definition of ‘owner’ should be extended to the whole of Part 7 and rather than being confined to Clause 65 as drafted and agreed to make a recommendation to this effect. The Department agreed to make the necessary amendments to Part 7 accordingly.

General

40. There was a general concern that more guidance was required from the Department on a range of issues addressed in the legislation.

41. Concerns about enforcing Litter Clearing Notices on vacant land were voiced but the Department noted that if vacant, then a notice could be served on the owner.

42. A phased implementation of the Bill was advocated by some organisations. In addition there were concerns that implementation of the Bill would present an additional cost to councils. However the Department viewed the Bill as cost-neutral.

43. Overcrowding in dwellings which also raised concerns is a priority of the Department of Social Development.

44. In relation to a suggestion that the Bill would impact on child poverty the Department stressed that it had consulted widely including taking account of the views of children’s organisations.

45. The Department recognised the need to maintain close liaison with the Department of Justice to ensure a multi-agency approach to ensure safe neighbourhoods.

46. Concerns that Anti-Social Behaviour Orders were not included in the Bill were addressed by the Department which noted that they can already be used to deal with environmental crime. Furthermore, it is likely that the new Justice Bill will also deal with low-level environmental crime.

47. In addressing concerns about Rural Proofing the Department stated that the Bill had been subject to a Rural Proofing exercise and that it will not have a differential impact in rural areas.

Recommendations

Delegated powers (several clauses)

48. On the advice of the Examiner of Statutory Rules the Committee recommends that the seven powers in the Bill under which the Department may make orders to alter the amount of a fixed penalty payment specified on the face of the Bill are made subject to draft affirmative procedure with the following amendments:

Clause 58, Page 47, Line 36,

At end insert ‘and after “section" insert “8A(7) or";

(b) after subsection (3) insert—

“(4) An order under section 8A(7) shall not be made unless a draft of the order has been laid before and approved by a resolution of the Assembly.".’

Clause 72, Page 63, Line 1

After ‘(3)’ insert ‘, (3A)’

Clause 72, Page 63, Line 3

At end insert—

‘(3A) An order under—

(a) section 4(9);

(b) section 27(5);

(c) section 42(6); or

(d) section 50(6),

shall not be made unless a draft of the order has been laid before and approved by a resolution of the Assembly.’

Schedule 3, Page 71, Line 11

At end insert—

‘The Pollution Control and Local Government (Northern Ireland) Order 1978 (NI 19)

A1. In Article 86—

(a) in paragraph (1) at the beginning insert “Subject to paragraph (1A),";

(b) after paragraph (1) insert—

“(1A) An order under Article 29A(9) shall not be made unless a draft of the order has been laid before and approved by a resolution of the Assembly.’

Schedule 3, Page 71, Line 26

At end insert—

‘(6) In Article 25—

(a) in paragraph (1) at the beginning insert “Subject to paragraph (1A),";

(b) after paragraph (1) insert—

“(1A) An order under Article 18A(3) shall not be made unless a draft of the order has been laid before and approved by a resolution of the Assembly."’

Gating Orders (Clause 1)

49. The Committee recommends that in conjunction with the commencement of the Bill the Department should issue a reminder to all councils of the need for comprehensive consultation of all representative bodies and authorities prior to making a Gating Order.

Issuing fixed penalty notices for litter offences to minors (Clause 16)

50. The Committee recommends that the Department issues guidance to councils requiring them to adopt special procedures for issuing notices to young offenders that will ensure that their functions with regard to issuing fixed penalty notices for litter offences to juveniles, are discharged in a way that safeguards and upholds the welfare of children. The Committee agreed Clause 16 subject to an amendment to this effect.

Penalty notices for graffiti and fly-posting (Clause 26)

51. The Committee recommends that councils are encouraged to provide sites where small and medium enterprises can place advertising literature for free or for a nominal not-for-profit administration charge. Procedures put in place for using such sites should be straightforward and flexible allowing for a quick reaction to market conditions. They should also include measures to ensure those using the sites keep them and the surrounding areas tidy and up-to-date.

Lower age limit for selling aerosols spray paint (Clause 36)

52. The Committee recommends that the lower age limit under which it should be an offence to sell aerosol paints is raised from 16 to 18 with the following amendments:

Clause 36, Page 32, Line 35

Leave out ‘16’ and insert ‘18

Clause 36, Page 33, Line 5

Leave out ‘16’ and insert ‘18’

Differentiating between flyposting and illegal advertising (Clause 37)

53. The Committee recommends that in order to ensure that councils are able to implement the new fly-posting powers provided in this Bill effectively, Planning Service should tighten up its control of advertising.

Maximum number of dogs on leads (Clause 38)

54. The Committee recommends that councils adopt a balanced approach to limiting the maximum number of dogs on leads and that officers tasked with enforcing the legislation hold or are required to undergo training in dog behaviour so that they can enforce the legislation equitably.

Definition of ‘owner’ (Clause 65)

55. The Committee recommends that the definition of ‘owner’ in Clause 65 is extended to the rest of Part 7 with the following amendments:

Clause 60, Page 50, Line 15

At end insert—

‘“owner", in relation to any premises consisting of land, means a person (other than a mortgagee not in possession) who, whether in that person’s own right or as agent trustee for any other person, is entitled to receive the rack rent of the premises or, where the premises are not let at a rack rent, would be so entitled if they were so let;’

Clause 60, Page 51, Line 7

After ‘1981 (NI 4)’ insert ‘(except for the definition of “owner")’

Clause 65, Page 58,

Leave out lines 4 to 8

Introduction

56. The Clean Neighbourhoods and Environment Bill was referred to the Committee for the Environment for consideration in accordance with Standing Order 33(1) on completion of the Second Stage of the Bill on 30 June 2010.

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

‘In my view the Clean Neighbourhoods and Environment Bill would be within the legislative competence of the Northern Ireland Assembly’.

58. The Bill aims to improve the quality of the local environment by giving district councils additional powers to deal with litter, nuisance alleys, graffiti and fly-posting, abandoned and nuisance vehicles, dogs, noise and statutory nuisance.

59. During the period covered by this Report, the Committee considered the Bill and related issues at meetings on 11 February 2010, 4 March 2010, 10 June 2010, 1 July 2010, 16 September 2010, 30 September 2010, 7 October 2010, 4 November 2010, 11 November 2010, 18 November 2010, 25 November 2010, 2 December 2010, 9 December 2010, 16 December 2010, 13 January 2011, 26 January 2011 and 27 January 2011. The relevant extract from the Minutes of Proceedings for these meetings are included at Appendix 1.

60. The Committee had before it the Clean Neighbourhoods and Environment Bill (NIA 31/09) and the Explanatory and Financial Memorandum that accompanied the Bill.

61. On referral of the Bill to the Committee after Second Stage, the Committee inserted advertisements on 5 July 2010 in the Belfast Telegraph, Belfast Telegraph North West edition, Irish News and News Letter seeking written evidence on the Bill.

62. A total of 21 organisations responded to the request for written evidence and copies of the submissions received by the Committee are included at Appendix 3.

63. The Committee was first briefed by officials about the consultation stages and policy development of the policy areas covered by the Bill on 30 September 2010. The Committee was also briefed by Pubs of Ulster, Children’s Law Centre, PlayBoard, Children in Northern Ireland, Include Youth, Tom Ekin, NILGA, Tidy NI, Countryside Alliance and The Kennel Club.

64. The Committee began its formal clause by clause scrutiny of the Bill on 16 December 2010 and concluded this on 26 January 2011.

Extension of Committee Stage of the Bill

65. On 11 October 2010, the Assembly agreed to extend the Committee Stage of the Bill to 28 January 2011.

Report on the Clean Neighbourhoods and Environment Bill

66. At its meeting on 27 January 2011the Committee agreed its report on the Bill and agreed that it should be printed.

Consideration of the Bill by the Committee

67. The Bill consists of 76 clauses and 4 Schedules and is divided into 8 distinct Parts.

Departmental briefing on the Clean Neighbourhoods and Environment Bill, 30 September 2010

68. Departmental officials briefed the Committee on the Bill at its meeting on 30 September 2010.

69. The Department stated that the Bill is, essentially, an important first step in the Department’s Clean neighbourhoods agenda programme. Throughout the Bill, much greater use is made of fixed penalty notices as an alternative to prosecution and district councils are given the power to retain the money that they receive from fixed penalties. The remit of the Bill is to bring Northern Ireland into line with improvements brought about by this type of legislation in England and Wales — the Clean Neighbourhoods and Environment Act 2005 and antisocial behaviour legislation.

70. The main areas of discussion with the officials were the cost neutrality of the Bill, fly-posting, the experience of similar legislation elsewhere, the use of fixed penalty notices, noise levels and alleygating.

Pubs of Ulster briefing on the Clean Neighbourhoods and Environment Bill, 7 October 2010

71. A representative from the Pubs of Ulster briefed the Committee on the Bill at its meeting on 7 October 2010.

72. The Pubs of Ulster stated that they welcomed the Bill but had concerns as to the impact some of the proposals would have on the commercial viability of its members’ businesses if no cost-effective alternative is put in place in relation to penalty notices for fly-posting and controls on free distribution of printed material.

73. These methods often provide the only way a small business can afford to advertise and the resulting economic impact would be the loss of jobs and income. Therefore the Pubs of Ulster would seek an amendment to the proposed bill. In regards to fly-posting the Pubs of Ulster suggested that a district council would be required to provide legal poster sites on which small local businesses can advertise for a not-for-profit fee, which covers the operational cost to the Council. In relation to the distribution of printed material the organisation felt that the Bill should be amended to specify a nominal fee for a licence to distribute printed material.

NILGA briefing on the Clean Neighbourhoods and Environment Bill, 4 November 2010

74. NILGA representatives briefed the Committee on the Bill at its meeting on 4 November 2010.

75. NILGA’s view is that much of the Bill is a new burden on local government in Northern Ireland. NILGA disagreed with the Department’s view that the implementation of the legislation would be cost-neutral across local government and also believed that fixed penalty funding will not be nearly enough to resource the powers that are included in the Bill and that the full cost should not have to be met by ratepayers.

76. NILGA also stated that it strongly believed that there is a need for a lead-in period for the legislation and a need for clear guidance, which is required to allow councils to adapt to, or prepare for, new and additional powers as many of the proposals will require clear and concise technical guidance to enable consistent and satisfactory implementation.

77. NILGA stated that it felt there was one serious omission from the Bill, which is the ability to deal with derelict property which it feels is a massive issue and that the Bill merely puts a sticking plaster on. NILGA feels the problem is increasing due to the current economic situation and that guidance to councils on this issue is needed.

78. The additional powers that will allow councils to more effectively deal with and tackle issues such as littered pieces of land and leaflet distribution were welcomed by NILGA. NILGA also welcomed the use of fixed penalties powers in relation to litter, particularly for some of the offences that have been cited in the Bill, but also sought their extension to other areas such as the giving of false names and addresses.

79. NILGA feels that powers to prosecute the perpetrators and beneficiaries of fly-posting are needed and are encouraged by the fact that the Department seeks to amend the Bill to ensure that those key powers are available to councils as well as the Planning Service.

80. In relation to dog control enforcement NILGA stated it had two concerns, the first was the adoption of legislation that is in practice in England and Wales, so, in having to resort to prosecution for failure to pay a fixed penalty, the council does not recover costs due to the Northern Ireland Magistrate’s Court rules. The charges are limited to £75 and will, therefore, in NILGA’s opinion, incur great costs on Northern Ireland councils.

81. The second concern related to the repeal of Article 4 of the Litter (Northern Ireland) Order 1994 and how that would diminish the ability to obtain information as in Article 20 of the same Order. NILGA felt that the new dog control order regime should ensure the retention of powers equivalent to those in Article 20 of the Litter Order, particularly in relation to the ability to obtain information from any person.

82. The additional powers in relation to noise were welcomed by NILGA but the organisation felt that they will introduce an additional workload for councils, as new types of noise complaints will require a thorough investigation as opposed to the current arrangements, which allow only for advice and informal action to be taken.

83. One of NILGA’s major concerns in relation to noise is the lack of clarity surrounding the definition of an owner as this has implications for actions on landlords and agents, particularly those who live in the Republic of Ireland.

Northern Ireland Environmental Quality Forum (NIEQF) on the Clean Neighbourhoods and Environment Bill, 4 November 2010

84. NIEQF representatives briefed the Committee on the Bill at its meeting on 4 November 2010.

85. The NIEQF stated that it warmly and wholeheartedly welcomed the legislation as a big step forward in Northern Ireland. The group want a no-nonsense approach to enforcement, which requires the legislation to be in place.

86. The group also stated that it wanted to be sure that any legislation that comes into

87. force means that all landowners will adhere to the same standards. At the moment, the Bill focuses on councils, and councils take all the flak when there is a problem. There is a concern that the Bill does nothing to bring about improvements in what the public already see on other landowners’ property, particularly those who might have Crown immunity, even if they are statutory undertakers, where litter is not seen as an issue that needs to be dealt with.

88. NIEQF feel that fixed penalty notices have to be set at a level that would be a proper deterrent and that there needs to be a lot of thinking about the level of fines and deterrents.

89. In relation to enforcement, NIEQF stated that the legislation needs to be enabling of the enforcement officers which links through to ASBOs, which the group feels are also an important element that can be in the armoury of the enforcement officers. This is mentioned in the English legislation and the group feel that if Northern Ireland is going to have parity, it needs to be brought into the legislation here.

Briefing by children and youth groups on the Clean Neighbourhoods and Environment Bill, 4 November 2010

90. The Committee was briefed on the Bill at its meeting on 4 November 2010 by representatives from PlayBoard, Children in Northern Ireland, Children’s Law Centre and Include Youth.

91. Although the groups support the proposed legislation’s broad aims, they struggle to see how some of its actions — as they relate to children, young people and their families — will achieve the desired outcomes. The groups believe that the aims of the Bill run the risk of further alienating, even criminalising, some of the already excluded young people.

92. The groups further stated that the Bill does not specifically address some of the criminal justice legislation as it relates to the fining of children and young people. They feel that there is no recognition that imposing a fine on or issuing a notice to a child may have child protection or safeguarding implications. In the groups’ view, the Bill does not seem to take cognisance of the impact of fixed penalty notices on already economically and socially deprived families and does not sufficiently consider how punitive actions may result in the criminalising of children and young people.

93. In relation to gating orders within the Bill, the groups stated that the Bill needs to consider the importance of children’s ability to roam and to have free access in their home environment. The groups feel that children and young people should be able to travel actively and independently when visiting friends or going out to play. Furthermore, the groups stated that it is perceived that gating orders will deter crime and antisocial behaviour but, although they will improve crime rates in some areas, so-called nuisance behaviour among young people will not be put right by the mere installation of gates or barriers. In fact, children will see that as a challenge or simply congregate somewhere else. The groups felt that the root cause of children and young people being labelled as disaffected and antisocial must be addressed to reduce and eradicate any perceived annoyance caused. A Gating Order must give consideration to compensating children and young people for the displacement and restriction of play spaces previously accessible to them.

94. The groups felt that the Department failed to consult properly on the Bill and failed to take children’s views on board and strongly advocated that the Department respond to and engage with children and young people as equal citizens and primary stakeholders in their neighbourhood environments so that all residents feel a sense of ownership and can deliver on the issues that affect the local community in ways that respect and value their contribution.

95. There were also concerns raised that a full equality impact assessment was carried out on the draft Bill in the initial consultation phase. The children’s organisations stated that they were extremely puzzled as to how and why that happened as they believe that children do have different needs and experiences in relation to the issues that the Bill raises.

Briefing by Kennel Club and Countryside Alliance Ireland on the Clean Neighbourhoods and Environment Bill, 11 November 2010

96. Representatives from the Kennel Club and Countryside Alliance Ireland briefed the Committee on the Bill at its meeting on 11 November 2010.

97. The Kennel Club stated that, although it generally favours approaches that place greater emphasis on informal management of land, it views a national framework of dog control orders as a means of ensuring consistency and fairness in managing access, provided that accompanying guidance is followed.

98. The organisation feel that, without good management, Dog Control Orders can simply displace problems, pushing dog owners onto farmland and other areas where they have not been before, potentially leading to increased conflict with livestock, farmers and wildlife. The Kennel Club acknowledged that a case can be made for restrictions in certain instances, but to ensure that that makes things better for dog owners and landowners alike, the group asked that an objective, proportionate and evidence-based approach is adopted in each case.

99. The Kennel Club stated its support for the use of Dog Fouling Orders and Dogs on Leads by Direction Orders, and appreciated that there will at times be justification for the use of Dogs on Leads and Dog Exclusion Orders, though it wanted those to be used as frugally as possible. The group support the use of maximum number of dog’s orders, as it considers them to be arbitrary.

100. Furthermore, the Kennel Club believes that the other orders introduced in the Bill — the Dogs on Leads by Direction Orders and the Dog Fouling Orders — would be adequate to deal with the potential negative consequences of anyone struggling to control a large number of dogs.

101. The organisation stated that it is seeking the introduction of a right of appeal against the types and extent of orders implemented or an obligation to review orders after a certain period; for instance, two years. Although it envisaged appeal being an absolutely last resort, the group feel that it is necessary to ensure that a fair process is followed, which takes into account the needs of all access users. The group felt that, under the current Bill, once orders are implemented there is no mechanism to challenge the fairness of them, even if they are clearly disproportionate to the problem that they seek to address.

102. The Kennel Club stated that it wants local authorities to be required to specify the land to which any proposed orders will apply as it views that information as absolutely integral to ensuring that meaningful public consultation can take place, because without it consultees would find it impossible to give an informed response. The group also called for a requirement for authorised officers tasked with enforcing legislation to hold or undergo training in dog behaviour, to enable them to adequately determine when to use the dogs on leads by direction order.

103. Countryside Alliance Ireland stated that it fully supported the Kennel Club’s position but that it had a few problems with Clause 38. The organisation believes that for the order to be implemented successfully there needs to be proper disposal facilities and education on dog fouling.

104. The group further believe that believe that the exclusion of dogs from lands is excessive and will unnecessarily reduce the freedom of movement and the public access allowed for dog owners. If both the dog fouling and Dogs on Leads by Direction Orders are enforced adequately and adhered to, the group feel there should be no reason to exclude dogs from lands. Furthermore, the group stated that there needs to be a clear exemption for working dogs and packs of hounds or beagles as without the exemption, there is a possibility of persecuting country sports groups that are carrying out their normal activities.

Briefing by Mr Tom Ekin on the Clean Neighbourhoods and Environment Bill, 11 November 2010

105. Mr Tom Ekin briefed the Committee on the Bill at its meeting on 11 November 2010.

106. Mr Ekin stated that time was of the essence and that he wished to see the legislation introduced as soon as possible. One of the main issues that needed to be addressed was that of ownership of buildings and Mr Ekin felt that the Bill must have open enough powers that enable the authorities to determine ownership

107. On fly-posting, Mr Ekin felt that it might be an idea for councils to provide legal poster sites on which small local businesses could advertise.

108. Mr Ekin also stated that more needed to be done in relation to derelict buildings as the problem is increasing due to the current economic situation.

Key Issues

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

Relating to several clauses

• Delegated powers of the Bill
• Fixed penalty notices

Part 1 – Gating Orders

Relating to Clause 1

• Gating orders

Part 2 – Vehicles

Relating to Clause 2

• Parking 2 or more motor vehicles on the road side for sale within 500 metres of each other

Relating to Clause 3

• Repairing vehicles on a road

Relating to Clause 8

• Prescribed periods for landowner objections

Part 3 – Litter

Relating to Clause 14

• Definition of litter

Relating to Clause 15

• Penalty for failing to provide name

Relating to Clause 16

• Fixed penalty notices for litter

Relating to Clause 17

• Notice period for clearing litter
• Exemption of Crown Land
• Legislation for unsightly and unkempt gardens

Relating to Clause 18

• Street litter

Relating to Clause 21

• Free distribution of printed matter

Part 4 – Graffiti and Other Defacement

Relating to Clause 26

• Fly-posting
• Flags and emblems

Part 5 – Dogs

Relating to Clause 38

• Maximum number of dogs on leads

Relating to Clause 39

• Exclusion of private land from Dog Control Orders

Part 6 – Noise

Relating to Clause 45

• Delineating between responsibilities of local authorities and the PSNI
• Differentiating between intruder alarms and smoke alarms

Relating to Clause 46 and 47

• Informing of alarm designation areas and their withdrawal

Relating to Clause 47

• Obtaining details of key holders

Relating to Clause 53

• Powers of entry
• Liability for damage caused to alarms by councils

Statutory Nuisance

Relating to Clause 60

• Noise from illegal motor sports tracks
• Silting up of water courses
• Including pigeons as a statutory nuisance
• Definition of ‘owner’

General

• Vacant land
• Guidance
• Phased implementation
• Cost of the Bill
• Overcrowding
• Child Poverty
• Multi-agency approach
• Anti-social behaviour orders
• Rural proofing

Delegated powers of the Bill (several clauses)

110. The Committee sought advice from the Examiner of Statutory Rules in relation to the delegated powers within the Bill. The Examiner advised that the Bill contains a number of powers to make subordinate legislation including some vested in the Department for Regional Development, e.g. in amendments to the Roads (Northern Ireland) Order 1993 in respect of gating orders, Part 1 of the Bill.

111. Most of the powers to make regulations and orders within the Bill are subject to negative resolution which the Examiner of Statutory Rules felt is an appropriate level of scrutiny. Regulations under Clauses 38(4) and 39(1) are subject to draft affirmative procedure which again the Examiner felt was appropriate given that these involve the creation of criminal offences.

112. However there are seven powers in the Bill under which the Department may make orders subject to negative resolution to alter the amount of a fixed penalty payment specified on the face of the Bill. These are in:

• Clause 4(9)
• Clause 7 (new Article 29A(9) of the Pollution Control and Local Government (Northern Ireland) Order 1978)
• Clause 22 (new Article 18A(3) of the Litter (Northern Ireland) Order 1994)
• Clause 27(5)
• Clause 42(6)
• Clause 50(6)
• Clause 58(2) (new section 8A of the Noise Act 1996)

113. These powers allow for direct amendments of penalty provisions set out on the face of the Bill and the Examiner of Statutory Rules argues that there are precedents for draft affirmative procedure in such circumstances in other Bills currently before the Assembly.

114. The Committee accepted the Examiner’s advice as it had previously when presented with a similar argument in relation to the Waste and Contaminated Land Bill, and asked the Department to make amendments to these seven powers which it did as follows:

Clause 58, Page 47, Line 36,

At end insert ‘and after “section" insert “8A(7) or";

(b) after subsection (3) insert—

“(4) An order under section 8A(7) shall not be made unless a draft of the order has been laid before and approved by a resolution of the Assembly."’

Clause 72, Page 63, Line 1

After ‘(3)’ insert ‘, (3A)’

Clause 72, Page 63, Line 3

At end insert—

‘(3A) An order under—

(a) section 4(9);

(b) section 27(5);

(c) section 42(6); or

(d) section 50(6),

shall not be made unless a draft of the order has been laid before and approved by a resolution of the Assembly.’

Schedule 3, Page 71, Line 11

At end insert—

‘The Pollution Control and Local Government (Northern Ireland) Order 1978 (NI 19)

A1. In Article 86—

(a) in paragraph (1) at the beginning insert “Subject to paragraph (1A),";

(b) after paragraph (1) insert—

“(1A) An order under Article 29A(9) shall not be made unless a draft of the order has been laid before and approved by a resolution of the Assembly.’

Schedule 3, Page 71, Line 26

At end insert—

‘(6) In Article 25—

(a) in paragraph (1) at the beginning insert “Subject to paragraph (1A),";

(b) after paragraph (1) insert—

“(1A) An order under Article 18A(3) shall not be made unless a draft of the order has been laid before and approved by a resolution of the Assembly."’

115. The Committee accepted the relevant clauses subject to these Departmental amendments.

Fixed Penalty Notices (several clauses)

116. The issue of fixed penalty notices throughout the Bill provoked a mixed reaction.

117. Councils welcomed the flexibility to set the levels of fines under the proposed changes but NILGA strongly encouraged the Department to set out the minimum and maximum ranges for fixed penalties. The Department stated that it intends to consult on this issue prior to issuing regulations.

118. In relation to fines for fly-posting, Mr Tom Ekin stated that any sensible solution is to fine the beneficiaries in the event of the perpetrator not being found in action. Ards Borough Council were in support of this stating that the ability to fine, within certain controls, a person whose business or service is advertised would act as a much greater deterrent and would have a much greater effect in eliminating indiscriminate fly-posting.

119. Other respondents urged the Department to allow incentives to be used to encourage compliance such as the fine costing less if paid in a shorter time. The Department agreed and indicated that the draft legislation already allows councils to treat a fixed penalty as having been paid if a lesser amount is paid before the end of a specified period.

120. Pubs of Ulster were concerned at the lack of consultation with the business community with regard to these proposals and the subsequent lack of balance within the responses. In particular they stated that there was no consultation with the small business sector and their representative bodies, both within and outside their own sector, despite the fact that these proposals will have severe consequences on the sustainability of their businesses.

121. The children and young people’s groups that responded were against the proposal to introduce Fixed Penalty Notices to children and young people as they felt it was unacceptable that these penalties can be applied directly onto children under 16 years of age.

122. Children in Northern Ireland stated that although it did not underestimate the detrimental impact which issues including graffiti and litter can have on communities, they believed that these issues should be tackled pro-actively through approaches which engage all members of the community in identifying local solutions. Some members of the Committee were also concerned that fixed penalty notices could, as a result of this legislation, be served on juveniles as young as 10 while others were content with the proposals.

123. The Department explained that the age of criminal responsibility was established in different legislation. However it accepted that a different approach in terms of fixed penalty notices is required in respect of children and guidance on this issue, which will be subject to full consultation before publication, will form an important part of the overall clean neighbourhoods agenda. The Department provided the Committee with the guidance for issuing fixed penalty notices to juveniles already in force in England and Wales (Appendix 6).

Part 1 – Gating Orders

Gating Orders (Clause 1)

124. There were mixed views on gating orders from the submissions to the Committee’s call for evidence.

125. Organisations such as NILGA, the Northern Ireland Environmental Quality Forum, Armagh City Council and Ballymena Borough Council welcomed the introduction of gating orders. Their views were that the orders would provide an alternative means to resolving noise disturbance and disorder, crime prevention and illegal dumping although there were some concerns about expectations being raised among residents that all alleyways should be gated when there is no necessity to do so. There was also a feeling that clear guidance was needed to address concerns such as access for emergency services, the Department for Regional Development’s role and neighbourhood approval.

126. Some respondents were concerned that the new powers would raise expectations among residents for gating orders to be put readily in place. The Department indicated that publication of clear and transparent council policy should help address this concern and in addition noted that gating orders may only be made in respect of relevant roads and provided that the Department for Regional Development approves the proposal and the conditions specified in the new powers. It was also stressed that councils will need to be satisfied that section 75 implications have been considered prior to making a gating order.

127. The children and young people’s groups that replied to the Committee were opposed to gating orders as they felt that the orders would have a potentially adverse impact not just on young people but on parents with young children, older people, the disabled and the socially excluded who are less likely to be able to afford cars. There were also concerns that gating orders may shift anti-social behaviour from one area to another and that the orders may result in children being moved further from their homes and adult supervision.

128. The Department stressed that the new powers provided in the Bill were not imposing a duty on councils and should not be seen as the primary or only measure to address these issues. They provide an extra tool that councils can consider when trying to address anti-social behaviour and the Department suggested that proof that other measures have been considered may be required as part of the application process.

129. The Committee felt it was important that councils viewed gating orders as a last option and that full consultation with all affected parties should take place in advance of any decision being made. It agreed a recommendation to this effect.

130. The Committee for Regional Development was content with the provisions relating to Gating Orders and welcomed the powers for local councils to make orders to erect gates where a need was identified. In particular the Committee acknowledged the positive impact this will have in relation to reducing the time required to make orders although some concern was raised that there was no maximum time limit for councils to make orders i.e. the process should be time-bound. The Committee also felt that greater clarity was required on the “reasonable charge" to be applied in respect of 69(E)(2).

Part 2 – Vehicles

131. The clauses in the Bill relating to vehicles were generally welcomed by most respondents however the following concerns were raised and/or discussed.

Parking two or more motor vehicles on the road side for sale within 500 metres of each other (Clause 2)

132. Measures to prevent the sale of two or more motor vehicles on the road side within 500 metres of each other were welcomed in principle but several respondents suggested there were a number of loopholes in the proposals. Some organisations suggested that in England/Wales these loopholes have been closed by street trading legislation and similar provisions would be welcome in Northern Ireland along with a Level 4 penalty.

133. The Committee requested clarification on the difference between ‘street’ and ‘drive’ and if the Bill should specify that cars cannot be sold on the street, but can be sold from private property.

134. The Department’s reply stated that Clause 2 deals with the sale of 2 or more motor vehicles parked within 500 metres of each other on a “road". The Street Trading Act (NI) 2001 defines a “road" as including a public road and any street, carriageway, highway or roadway to which the public has access. Clause 2 is not intended to cover all situations and existing legislation such as the Street Trading Act (NI) 2001 can still be used where appropriate. There is nothing in the Bill or in the street trading legislation to prevent someone from selling a car from their driveway.

135. The Department stressed that this is an additional power being given to district councils to deal with a particular type of nuisance parking i.e. it is intended to specifically target businesses using the road as a “mock showroom". In these circumstances, it gives councils the flexibility to deal with the offence by way of a fixed penalty and allows the councils to retain the receipts. There is also a stiffer penalty on summary conviction for this offence i.e. Level 4 as opposed to Level 3 for an offence under the Street Trading Act (NI) 2001. Guidance will be consulted on as soon as possible.

136. NILGA also wanted assurance that the definition of a vehicle is wide enough to cover abandoned caravans and trailers and the Department stated that the current definition of “motor vehicle" in the Pollution Control and Local Government (NI) Order 1978 already covers caravans.

137. The Committee was content with the explanations.

Repairing vehicles on a road (Clause 3)

138. This clause was generally acceptable to respondents even though it was acknowledged that there might be some detrimental impact on some businesses whose space for car sales will be reduced. The Department justified this stating that such practices cause nuisance and businesses use roads to avoid overheads which provides unfair competition for other small businesses operating more responsibly and the Committee accepted this argument.

139. Several respondents also suggested the clause should have gone further to include vehicles awaiting repair and taxi businesses operating from domestic premises. The Department replied that these are significant proposals which would require detailed consideration and amendment which was not possible within the legislative timetable.

140. Conversely, the Committee was concerned that broken down vehicles might inadvertently find themselves in breach of this clause and sought reassurance from the Department that this would not be the case. The Department advised that owners of motor vehicles that break down have 72 hours to repair or remove their vehicle and this alleviated the Committee’s concerns.

Prescribed periods for landowner and vehicle owner objections (Clause 8)

141. Some councils were keen to see clarity provided on the prescribed periods for land owner objections for removal and vehicle owner objections for disposal of vehicles and suggested that a 7-day notice system would be suitable. The Department advised that the relevant periods would be prescribed in regulations by DOE under the Pollution Control and Local Government (NI) Order 1978 and by the Department for Regional Development (DRD) under the Road Traffic Regulation (NI) Order 1997. These will be consulted on as soon as possible and the Committee accepted this response.

Part 3 - Litter

Definition of litter (Clause 14)

142. Some respondents to the Committee’s call for evidence felt that the Bill needed to give a broader definition of litter and others felt that the proposed changes to the litter legislation will have little impact as an Article 3 offence remains unchanged.

143. NILGA felt that, contrary to the Department’s assertion, the definition of litter and the offence of littering in water are not well provided for in the Bill but that some rewording would provide a much more robust piece of legislation for councils to enforce. The organisation also felt that The Litter (NI) Order 1994 should be amended to ensure the definitions are as comprehensive as the Clean Neighbourhoods and Environment Act in England and Wales regarding litter deposited into water and smoking-related/chewing gum.

144. The Department however is satisfied that Article 3 of the Litter (NI) Order 1994 together with the amendment inserted by Clause 14 of this Bill is very comprehensive covering the dropping of litter in ‘any place’ including water. It is also satisfied that the definition of litter is very comprehensive and does not require any further amendment.

Penalty for failing to provide a name (Clause 15)

145. This clause creates an offence for failing to give the correct name and address details when questioned for a litter offence. Several respondents felt that it would be quicker and cheaper to introduce fixed penalty notices for giving false information relating to name/address when questioned rather than bringing to court. There is a perception that Magistrates do not give weight to environmental offences and councils would not be able to recoup their legal costs.

146. However, not everyone was in favour of making it an offence for failure to provide a name and address to an authorised person or to give a false name. Representatives of the youth sector were strongly opposed to the measure and felt that there had been extremely limited consultation with children’s organisations during the initial consultation process and suggested this contravened section 75 obligations to consult directly with those likely to be affected by the policy.

147. The Department argued that the introduction of fixed penalty notices instead of making it an offence to provide incorrect details was a significant proposal that would require detailed consideration and amendment to the Bill. Members of the Committee failed to see any advantage in introducing a fixed penalty system for questioned individuals who refused to provide information or who provided incorrect information. The Department noted that this clause of the Bill included a disincentive to provide inaccurate information in that failure to give information or giving false information will result in an increase to the maximum fine, on summary conviction, from £200 to £1000.

Fixed penalty notices for litter offences (Clause 16)

148. The Northern Ireland Environmental Quality Forum (NIEQF) strongly believed that the upper level of fines should be raised beyond the £75 in the draft Bill. The organisation accepted that the current proposals bring parity with legislation in England but at a level of £75 the fines would leave Northern Ireland issuing fixed penalties that are lower than in the Republic of Ireland where leaving or throwing litter in a public place is an offence that can be subject to an on-the-spot fine of €150 or a maximum fine of €3,000 upon conviction.

149. In its response, the Department states that the aim of the Bill is to provide councils in Northern Ireland with broadly the same powers as their counterparts in England and Wales. It also pointed out that many councils in England have chosen to have higher fixed penalty fines (~£80) and that the £75 proposal in this bill is the default position should a council choose not to specify its own fine level.

150. The Department also notes that as a fixed penalty notice is offered as an alternative to prosecution the district council could deal with repeat offenders by ceasing to issue an individual with fixed penalty notices and instead go down the prosecution route. Upon conviction it would be for the courts to decide on any appropriate punishment.

151. One organisation expressed concern that the introduction of a fixed penalty approach would remove the public stigma that accompanies prosecution which acts as an added disincentive not to drop litter. In response the Department argued that fixed penalty notices are an effective way of dealing with environmental offences and if used properly, provide an effective deterrent and avoid the cost of court action. The option to prosecute is also available to district councils and the Committee accepted this.

152. The Committee remained concerned about the issuing of fixed penalty notices for litter offences to juveniles and agreed to recommend that this clause should be amended to address those concerns.

Notice period for clearing litter (Clause 17)

153. Some respondents felt that the proposed 28 day notice period for allowing a landowner/occupier to comply with a Litter Clearing Order was too long. The Department argued that this new provision replaces existing procedures and makes them simpler. The length of time reflects that a person served with a Litter Clearing Order is allowed 21 days to make an appeal and the Committee accepted this rationale.

Exemption of Crown Land (Clause 17)

154. Some respondents and members of the Committee were concerned at the proposed exemption of Crown Land or land of an educational institution from being served with a Litter Clearing Order. There was also a perception that there is a big disparity between what councils have to do in relation to litter and what other landowning bodies have to do. The Department replied that by virtue of Article 7 of the Litter (NI) Order 1984 the bodies listed in Clause 17 are already under a statutory duty to ensure that their land is kept clear of litter.

Legislation for unsightly and unkempt gardens (Clause 17)

155. Several councils suggested that current powers would be strengthened if unsightly and unkempt gardens and properties in residential areas were legislated for. Under current powers it is not possible to establish that statutory nuisance conditions exist from these unless they are dangerous or harbourage for pests. Councils have no redress to formal action and can only use informal approaches to property owners. By contrast such powers are available to English and Welsh councils through the Town and Country Planning Act 1990, to require land to be cleaned up when its condition adversely affects the amenity of the area.

156. The Department responded that this is addressed through the new ‘litter clearing notice’ provisions in this clause of the Bill

Street Litter (Clause 18)

157. This clause was generally welcome but several stakeholders suggested that further powers were necessary to require offices and commercial multi-occupancy tenancy premises to control waste being left outside as a result of new smoking laws. In response, the Department indicated that it will handle this through subordinate legislation, on which it will consult, bringing Northern Ireland into line with England.

Free distribution of printed matter (Clause 21)

158. In relation to this clause NILGA made the point that the proposals make a distinction in the offence of distributing leaflets without consent between those who distribute the leaflets and those who cause another person to distribute. In determining if an offence has been committed in the first instance by the person who is distributing the leaflets, a council must prove that the person distributing the leaflets knew that the area was or was not designated. They felt that in practice this will be difficult to prove and envisage that few fixed penalties will be issued for this offence.

159. The Department responded that every council is required to keep a copy of street litter control notices and orders designating land where free literature cannot be distributed without consent, on a register that must be available at all reasonable times for public inspection. In addition, each council will need to ensure that they adequately publish details of land in their areas which has been designated and it will be providing guidance on this in due course.

160. Some respondents suggested that the Department should make it an offence for failure to adhere to conditions set in respect of leaflet distribution which could be addressed through the use of a fixed penalty notice. The Department’s response indicated that the Bill provides for a district council to revoke consent if the person to whom the consent was granted fails to comply with the conditions imposed. With consent removed an offence would be committee if distribution takes place in a designated area and fixed penalty notices may be issued as an alternative to prosecution. It also stressed that material distributed for charitable, religious and political purposes is exempted from offence.

161. The Committee requested more information on the extent of this clause, specifically if it extends to Crown property. In its reply the Department indicated that the power in Clause 21 to enable councils to control the free distribution of printed matter does not extend to Crown land. However under existing law, where a council is satisfied that Crown land is defaced by litter it can serve a litter abatement notice requiring that the litter be cleared. The Committee accepted this response.

Part 4 – Graffiti and other defacement

162. The clauses in the Bill relating to graffiti and other defacement were generally welcomed by most respondents however the following concerns were raised and/or discussed.

Fly-posting (Clause 26)

163. The proposal from the Department to make current Planning Service powers available to councils to deal with fly-posting was supported by most respondents.

164. Several respondents were of the opinion that those whose goods or services were advertised on fly-posters should also be included in any penalties being imposed, particularly if the distributor cannot be found.

165. NILGA felt that the Planning Service does not enforce its legislation in respect of fly-posting activity and stated that it has refused to enter into partnership with councils to proactively pursue beneficiaries of fly-posting. NILGA also stated that serving removal notices in respect of fly-posters would be onerous, costly, time-consuming and in realistic terms, impossible to administer.

166. In relation to costs, the Department noted that councils would be able to charge a fee to cover the administrative costs of issuing consents. It recognised that this would impact on businesses that rely on literature distribution for their main source of income but does not foresee any additional cost implications for those acting with district council consent.

167. The Committee was also concerned about the powers of the Bill in relation to fly-posting and asked the Department if the Bill provided the power for an innocent party to recoup costs for the removal of posters that have been fly-posted from the beneficiaries of the advertisement. The Department stated that under clause 31 a council may serve a Defacement Removal Notice, however privately-owned buildings such as shops would not normally be covered by this provision.

168. The Pubs of Ulster were concerned about a lack of consultation on proposals on this issue with the business sector, especially small to medium enterprises (SMEs). The organisation suggested an amendment that would require councils to provide legal poster sites on which SMEs can advertise for a not-for-profit fee.

169. The Department suggested that it was for individual councils to consider if they wished to provide legal sites for posters to be displayed. The Committee considered the option of making this compulsory among councils but concluded that while councils should be encouraged to provide such sites, they should have the discretion to make the decision that best suited their area. The Committee agreed to make a recommendation to this effect.

Flags and emblems (Clause 26)

170. One organisation suggested the Bill should include measures to address flags and emblems. The Department responded that this is a cross-cutting issue that it does not believe can be solely addressed by DOE. It indicated that the Executive has commenced a review of the inter-agency ‘Joint Protocol in relation to the Display of Flags in Public Areas’. This protocol was launched in April 2005 and it set out an agreed partnership approach to deal with flags issues. The main aim of the protocol has been to work proactively with communities to address the removal of flags and emblems from arterial routes and town centres and to remove all paramilitary flags and displays.

Notice period for defacement removal notices (Clause 31)

171. Several councils felt that allowing 28 days for the recipient of a defacement removal notice to act was too long and suggested that the equivalent period of 2 days in English legislation was much more appropriate. The Department clarified that the proposed 28 days is exactly the same as that provided in England and explained that defacement removal notices are meant to enable district councils to address situations in which relevant surfaces are defaced by graffiti or fly-posting.

172. The Committee was advised that it is the Department’s view that the owners of street furniture, such as telecommunication companies and utilities, should share the responsibility with councils for the condition of their structures. The Department stressed that privately owned property would not be affected by this clause.

Recovery of expenditure (Clause 32)

173. In response to suggestions that the Bill should include powers to prosecute persons responsible for a surface which has been defaced, the Department considered this inappropriate and argued that the power to issue Defacement Removal Notices provided in this clause of this Bill – giving powers to district councils to act and recover costs where necessary – is a more appropriate course of action.

174. The Committee asked the Department if innocent parties would be provided with powers to recoup expenses incurred in cleaning their street furniture from the beneficiaries of the advertising. The Department responded that such a provision would not be provided and that it would be difficult to operate such a system in practice. The Committee accepted this explanation.

Lower age limit for selling aerosols spray paint (Clause 36)

175. The Bill proposes to introduce a lower age limit of 16 below which it will be illegal to sell aerosol paints. Many councils and organisations suggested that this limit should be raised to 18 bringing it on a par with other restricted products such as tobacco and butane gas. Arguments for this included removing the need to introduce a separate test-purchasing exercise solely for this purpose and the Committee was in support.

176. The Department initially suggested that many 16 to 18 year olds might have legitimate reasons for needing such paints, they might be householders in their own right or own a vehicle that needs repair. It also suggested that introducing a different age limit to GB could cause difficulties and confusion. The Committee did not accept these arguments as having sufficient merit for keeping the lower age limit at 16 and therefore welcomed the Minister’s agreement to bring forward an amendment raising it to 18 as follows:

Clause 36, Page 32, Line 35

Leave out ‘16’ and insert ‘18’

Clause 36, Page 33, Line 5

Leave out ‘16’ and insert ‘18’

Differentiating between fly-posting and illegal advertising (Clause 37)

177. Most organisations welcomed the proposed new powers for councils to address fly-posting. However, the Committee was concerned that councils were likely to experience difficulty in practice trying to disentangle fly-posting from wider advertising which comes under the control of Planning Service and is generally considered to be poorly enforced. The Committee accepted that the Bill could not be amended to address this concern but agreed to recommend that Planning Service should tighten up its control of advertising to ensure councils are able to implement their new fly-posting powers effectively.

Part 5 – Dogs

178. The introduction of the proposed powers in this part was welcomed by most councils and their representative body as they felt they would provide councils with the necessary measures to manage dogs more effectively.

Maximum number of dogs on leads (Clause 38)

179. Whilst the Kennel Club and Countryside Alliance Ireland stated their support for the introduction, use and promotion of Dog Fouling/Dogs on Leads Orders as a basic principle of responsible dog ownership they opposed proposals for the maximum number of dogs to be walked by one person. Keen to see a balanced approach, they suggested instead the establishment of a permit scheme to help regulate this group.

180. The Kennel Club and Countryside Alliance Ireland also called for a requirement for authorised officers tasked with enforcing legislation to hold or undergo training in dog behaviour enabling them to adequately determine when in use the ‘Dogs on Leads by Direction’ Order.

181. The Committee asked the Department about the feasibility of a permit scheme and were advised that it would be cumbersome, costly and over bureaucratic. However they stressed that councils could create their own exemptions where they saw appropriate, for example for ‘assistance’ dogs.

182. The Committee accepted the argument regarding a permit scheme but agreed to recommend that councils adopt a balanced approach to limiting the maximum number of dogs on leads and that officers tasked with enforcing the legislation hold, or are required to undergo, training in dog behaviour so that they can enforce the legislation equitably.

Exclusion of private land from Dog Control Orders (Clause 39)

183. Some councils were concerned that Dog Control Orders would only apply to land which is open to the air and to which the public are entitled or permitted to have access and that land in private ownership, such as sports grounds, would be excluded.

184. The Department responded that legal guidance clarified that land in private ownership such as sports grounds, playing fields and recreation grounds would be covered as they would be areas to which the public are entitled to have access. The Committee accepted this response.

Part 6 – Noise

185. Most respondents to the Committee’s call for evidence welcomed the additional powers introduced by the Bill as a means of addressing local noise problems and therefore assisting in improving quality of life and health.

Delineating between responsibilities of local authorities and the PSNI (Clause 45)

186. Respondents called for clear guidance to delineate the responsibilities between councils and the PSNI in respect to The Road Vehicles Construction and Use Regulations. The Department noted this but stressed that the new provisions relating to Alarm Notification Areas are aimed at premises fitted with audible intruder alarms, not vehicles which are addressed under statutory nuisance.

Differentiating between intruder alarms and smoke alarms (Clause 45)

187. Several respondents expressed concerns that it is often impossible to determine whether a sounding alarm is associated with an intruder system of a heat/smoke system until having gained access to the premises. They felt that differentiating between an alarm and an intruder alarm weakened the order and that the Department should consider including noise associated with other alarm types within the provisions.

188. The Department indicated that the new provisions dealing with audible intruder alarms supplement rather replace existing council powers to deal with audible alarms and councils will still be able to use these.

Informing of alarm designation areas and their withdrawal (Clauses 46 and 47)

189. Councils felt that the requirement to send a copy of the notice to all premises in the area informing of an alarm designation area or the withdrawal of that designation would be an unnecessary cost. They suggested that an amendment should be made to allow an advertised public notice to be sufficient cover, similar to other statutory advertisements.

190. The Department replied that guidance will make it clear that utilising existing news-letters and magazines will be an acceptable form of communication regarding Alarm Notification Areas.

Obtaining details of key holders (Clause 47)

191. NILGA and several individual councils were concerned that obtaining the details of a named key-holder and responsible person for shared housing, flats and houses of multiple occupancy was costly and difficult, if at all feasible.

192. The Department indicated that the new powers will make it mandatory to notify the council of a nominated key-holder. Failure to do so will be an offence liable on summary conviction to a fine not exceeding Level 3. The requirement for those in Alarm Notification Areas will be specifically targeted at those premises which have an audible intruder alarm.

Powers of entry (Clause 53)

193. Several councils sought clarification on the powers of entry. Whilst they felt the legislation was clear regarding the entering of property per se to silence an alarm, they wanted more information regarding entry within a property boundary. The Department specified that a warrant will not be required to enter a property boundary in order to silence an alarm.

Liability for damage cause to alarms by council (Clause 53)

194. The Committee asked the Department to clarify to what extent a council would be liable if it caused damage to an alarm when silencing it. The Department replied that Clause 55(9) of the bill states that “nothing done by, or by a member of, a district council or by an officer of or another person authorised by a district council, if done in good faith ….. is subject to the council or any of those persons personally to any action, liability, claim or demand". Council officers, and those authorised by a council, are therefore indemnified from any damage caused in exercising their powers of entry to silence an alarm, provided the action is exercised in good faith. The Committee was content with this response.

Part 7 – Statutory Nuisance

Most respondents to the Committee’s call for evidence welcomed the extended list of statutory nuisances in this part. However the following key issues were discussed:

Noise from illegal motor sports tracks (Clause 60)

195. The Committee asked the Department to consider an amendment that would ensure councils could address noise from illegal motor sports tracks.

196. The Department’s response indicated that the improved procedures for dealing with statutory nuisances brought about in this part of the Bill will enable councils to deal more effectively with noise emitted from land that is prejudicial to health or a nuisance. Clause 60(1)(i) of the Bill specifies a statutory nuisance as noise emitted from premises so as to be prejudicial to health or a nuisance. By virtue of Clause 60(10) “premises" includes land. If a council is satisfied that noise from an illegal motor sports track is a statutory nuisance the council shall serve an abatement notice requiring the abatement of the nuisance or prohibiting or restricting its occurrence or recurrence. It also provides a council, where it is satisfied that a statutory nuisance in respect of noise emitted from land is likely to occur or recur, with a seven day period to take such steps as it thinks appropriate for the purpose of persuading the person responsible for the nuisance or the landowner to abate the nuisance or prohibit or restrict its occurrence or recurrence. A person failing to comply with an abatement notice is liable on summary conviction to a fine not exceeding Level 5 (currently £5,000) on the standard scale.

197. Accordingly, the Department was of the view that an amendment to the Bill in relation to noise from illegal motor sports tracks is not required as the situation is already adequately covered by the Bill and the Committee accepted this response.

Silting up of water courses (Clause 60)

198. The Committee was concerned that the inclusion of obstructed water courses due to silting up in the definitions of statutory nuisances (Clause 60(1)(l) could be used to impede the natural progression of water systems and asked the Department for further details.

199. The Department replied that as regards this sub-section (“any part of a watercourse ….which is so choked or silted up as to obstruct or impede the flow of water"), English case law has established that the range of potential recipients of abatement notices under this provision is subject to an important limitation. Where a natural watercourse becomes silted up by natural causes and causes a nuisance by flooding, the landowner is unlikely to be held liable under this provision. By contrast, if a watercourse is created or substantially altered by humankind, then the landowner or occupier is responsible for its design, construction and maintenance and may be “in default" in respect of their inadequacies. The Committee was content with this explanation.

Including pigeons as a statutory nuisance (Clause 61)

200. In response to several submissions from councils, the Committee asked the Department to consider the inclusion of pigeons within the definitions of statutory nuisance.

201. In response the Department maintained that the Bill as drafted provided sufficient scope for councils to deal with pigeons as follows:

‘…the Department considers that the existing powers available to councils in Clause 61(1)(a) “any premises in such a state as to be prejudicial to health or a nuisance" and 61(1)(e) “any accumulation or deposit which is prejudicial to health or a nuisance" are sufficient to allow councils to serve an abatement notice where there are problems associated with pigeons. Councils also have powers under Article 71 (Reduction of numbers of pigeons and other birds in built-up areas) of the Pollution Control and Local Government (NI) Order 1978 “to take any steps for the purpose of abating or mitigating any nuisance, annoyance or damage caused by the congregation in any built-up area of feral pigeons…"’

202. The Committee accepted this argument.

Definition of ‘owner’ (Clause 65)

203. Several councils called for the definition of ‘owner’ used in Clause 65 to be extended to the rest of Part 7 and the Committee supported this call. The Department agreed and indicated that it would table the following amendments at consideration stage of the Bill:

Clause 60, Page 50, Line 15

At end insert—

‘“owner", in relation to any premises consisting of land, means a person (other than a mortgagee not in possession) who, whether in that person’s own right or as agent trustee for any other person, is entitled to receive the rack rent of the premises or, where the premises are not let at a rack rent, would be so entitled if they were so let;’

Clause 60, Page 51, Line 7

After ‘1981 (NI 4)’ insert ‘(except for the definition of “owner")’

Clause 65, Page 58,

Leave out lines 4 to 8

204. The Committee accepted these amendments.

Vacant Land (General)

205. Respondents to the Committee’s call for evidence raised concerns about how and if the powers being given to councils by the Bill could be used in relation to vacant land. Organisations such as Banbridge District Council and the Northern Ireland Environmental Quality Forum stated that they had concern that the provision of Clause 17 to amend the Litter (NI) Order 1994 with Article 12A(10) exempts Crown land or land of an educational institution or statutory undertaker. They felt that retaining this exemption will not assist in improving general amenity and does not allow for efficient management of vacant , derelict land or open spaces in relation to litter, that are owned by other bodies.

206. The Department’s reply stated that, under the Bill, litter clearing notices can be served on the occupier of the land to which it relates or, if the land is not occupied, the owner.

Guidance (General)

207. Most respondents to the Committee’s call for evidence emphasised the need for clear guidance on the legislation.

208. In particular, guidance was requested on Gating Orders to address concerns such as access for emergency services, the Department for Regional Development’s role and neighbourhood approval.

209. In addition NILGA and the several councils that responded also called for guidance on nuisance parking, issuing fixed penalty notices, enforcement powers, Dog Control Orders, on assessing if artificial light is causing a nuisance and on delineating the responsibilities between councils and the PSNI with respect to The Road Vehicles Construction and Use Regulations.

Phased implementation (General)

210. Due to the complexity and wide ranging nature of the Bill several respondents stated that a lead-in period will be necessary for the implementation of the legislation. Ballymena Borough Council recommended 3 months between the making of the legislation and the commencement order date to allow councils to prepare.

Cost of the bill (General)

211. There were concerns expressed by several local government respondents that the Bill and the additional powers it would introduce would require additional resources at an additional cost to councils. NILGA felt that the powers would incur considerable additional cost to councils and should be appropriately resourced, yet there appeared to be no process for doing so and the organisation urged the Department to consider this as a ‘new burden’.

212. In terms of fixed penalty notices, the concern was expressed by several local government organisations that if councils had to resort to prosecution for failure to pay a fixed penalty they would not have the ability to recover costs due to the Northern Ireland Magistrates rules’ where charges are limited to £75, so any costs in excess of this would have to be borne by the Local Authority.

213. The Department maintained its view that the Bill is cost-neutral with limited exceptions. It suggested that the provisions contained in the Bill do not generally impose a duty on councils to act but provide a range of powers which councils may decide to use where there is a net benefit in doing so in the local context. In relation to statutory nuisance and noise, an area where several councils will have new duties and were particularly concerned about resources, the Department feels it should be possible for them to deal with it through existing and well established structures.

Overcrowding (General)

214. Several councils expressed disappointment that unlike equivalent legislation in England and Wales, there is no proposal to introduce a Northern Ireland standard for overcrowding in a dwelling. The Department indicated that this issue had been brought to the attention of the Department for Social Development which has policy responsibility in Northern Ireland for housing matters, including overcrowding. The Department also indicated to the Committee that it was aware this issue was being treated as a priority by DSD.

Child Poverty (General)

215. The organisations representing children and young people were concerned the Bill would have a detrimental impact on child poverty and suggested its progress should be halted pending the Review of Children and the Criminal Justice System promised within the Hillsborough Review.

216. They wanted to see the Department respond to and engage children and young people as primary stakeholders and make reference within the legislation to the best interest of the child.

217. The Department stressed that it had consulted and taken account of the views of children’s organisations and that the legislation is designed to improve the quality of life for everyone in Northern Ireland including children and future generations. It also noted that the Bill enjoys cross-party support and aims to bring it into force as soon as possible

Multi-agency approach (General)

218. One respondent stressed the need for multi-agency approaches that embrace prevention and early intervention as the key to ensuring neighbourhoods and communities are safe areas where everyone can feel secure and meet their diverse needs.

219. The Department stated that it understood that it is a key priority for the Department of Justice (DOJ) to develop a new Community Safety Strategy for Northern Ireland and the Department maintains close liaison with DOJ concerning the development of this strategy and its linkages with the Clean Neighbourhoods Agenda.

Anti-social behaviour orders (General)

220. One organisation wanted to see environmental crime incorporated into social behaviour strategies and indicated that Anti-Social Behaviour Orders were a significant and powerful weapon in this area. Section 1 in the Clean Neighbourhood and Environment Act in England includes such measures and it was felt that a similar inclusion in this Bill would be beneficial.

221. The Department replied that Anti-Social Behaviour Orders can already be used to deal with environmental crime. Both DOJ and the Department recognise how the developing Community Safety Strategy and clean neighbourhoods agenda complement each other. By virtue of section 1 of the Clean Neighbourhoods and Environment Act, Crime and Disorder Reduction Partnerships in England and Wales have to take anti-social and other behaviour adversely affecting the local environment into account when developing their strategies. This mandatory approach was possible because the formulation and implementation of crime and disorder strategies is a legislative requirement under the Crime and Disorder Act 1998. This is not currently the case in Northern Ireland. However, the Department understands that the new Justice Bill contains provisions to establish Policing and Community Safety Partnerships and will consider the likely impact and potential the proposals in the Justice Bill have in terms of helping to deal with low-level environmental crime issues.

Rural proofing (General)

222. NILGA was keen to see that appropriate rural proofing of this legislation takes place as rural councils can have a very different experience of some issues to urban councils particularly regarding the source of nuisance noises and smells. Rural dwellers also have potentially different needs than those of the urban population.

223. In reply, the Department indicated that a Rural Proofing screening exercise was carried out on the draft Bill. It was concluded that it will not have a differential impact in rural areas and does not affect accessibility to public services in rural areas.

Clause by Clause Consideration of the Bill

224. The Committee conducted its clause by clause scrutiny of the Bill on 16 December 2010 and 13 January 2011– see Appendix 2. The Committee recommended several amendments which are outlined below.

Clause 1 - Gating orders

225. At the meeting on 16 December 2010 the Committee was content with the Clause as drafted.

Clause 2 - Exposing vehicles for sale on a road

226. At the meeting on 16 December 2010 the Committee was content with the Clause as drafted.

Clause 3 - Repairing vehicles on a road

227. At the meeting on 16 December 2010 the Committee was content with the Clause as drafted.

Clause 4 - Power to give fixed penalty notices

228. At the meeting on 16 December 2010 the Committee was content with the Clause subject to the amendment proposed by the Department to make orders under sub-section 9 subject to draft affirmative procedure.

Clause 5 - Power to require name and address

229. At the meeting on 16 December 2010 the Committee was content with the Clause as drafted.

Clause 6 - Use of fixed penalty receipts

230. At the meeting on 16 December 2010 the Committee was content with the Clause as drafted.

Clause 7 - Offence of abandoning a vehicle: fixed penalty notices

231. At the meeting on 16 December 2010 the Committee was content with the Clause as drafted.

Clause 8 - Notice of removal of vehicle by district council

232. At the meeting on 16 December 2010 the Committee was content with the Clause as drafted.

Clause 9 - Disposal of removed vehicle by district council

233. At the meeting on 16 December 2010 the Committee was content with the Clause as drafted.

Clause 10 – Guidance

234. At the meeting on 16 December 2010 the Committee was content with the Clause as drafted.

Clause 11 - Notice of removal of vehicle

235. At the meeting on 16 December 2010 the Committee was content with the Clause as drafted.

Clause 12 - Disposal of vehicle by police officer

236. At the meeting on 16 December 2010 the Committee was content with the Clause as drafted.

Clause 13 - Disposal of vehicle by Department

237. At the meeting on 16 December 2010 the Committee was content with the Clause as drafted.

Clause 14 - Offence of dropping litter in lake, pond or watercourse

238. At the meeting on 16 December 2010 the Committee was content with the Clause as drafted.

Clause 15 - Penalty for failing to provide name

239. At the meeting on 16 December 2010 the Committee was content with the Clause as drafted.

Clause 16 - Litter offence: fixed penalty notice

240. At the meeting on 16 December 2010 the Committee decided that a formal decision on this Clause was deferred until the meeting on 13 January 2011 when the Department provides the Committee with the guidance on the issuing of fixed penalty notices.

241. At the meeting on 26 January 2011 the Committee clarified its position on this Clause as agreed subject to an amendment that reflects the Committee’s position on issuing fixed penalty notices to juveniles.

Clause 17 - Litter clearing notices

242. At the meeting on 16 December 2010 the Committee was content with the Clause as drafted.

Clause 18 - Street litter: control notices

243. At the meeting on 16 December 2010 the Committee was content with the Clause as drafted.

Clause 19 - Street litter: supplementary provisions

244. At the meeting on 16 December 2010 the Committee was content with the Clause as drafted.

Clause 20 - Failure to comply with notice: fixed penalty notices

245. At the meeting on 16 December 2010 the Committee was content with the Clause as drafted.

Clause 21 - Controls on free distribution of printed matter

246. At the meeting on 16 December 2010 the Committee decided that a formal decision on this Clause was deferred until the meeting on 13 January 2011 when the Department provided the Committee with an answer to queries on the impact of this Clause on Crown land.

247. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

Clause 22 - Fixed penalty notices: supplementary

248. At the meeting on 16 December 2010 the Committee was content with the Clause as drafted.

Clause 23 - Exclusion of liability

249. At the meeting on 16 December 2010 the Committee was content with the Clause as drafted.

Clause 24 - Abandoned shopping and luggage trolleys

250. At the meeting on 16 December 2010 the Committee was content with the Clause as drafted.

Clause 25 - Section 24: transitional provision

251. At the meeting on 16 December 2010 the Committee was content with the Clause as drafted.

Clause 26 - Penalty notices for graffiti and fly-posting

252. At the meeting on 13 January 2011 the Committee was content with the Clause subject to the amendment proposed by the Department to allow councils to deal more effectively with graffiti and fly-posting.

Clause 27 - Amount of penalty

253. At the meeting on 13 January 2011 the Committee was content with the Clause subject to the amendment proposed by the Department to make the power to alter the amount of fixed penalty specified on the face of the Bill subject to draft affirmative procedure.

Clause 28 - Penalty notices: power to require name and address

254. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

Clause 29 - Penalty receipts

255. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

Clause 30 - Guidance

256. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

Clause 31 - Defacement removal notices

257. At the meeting on 13 January 2011 the Committee was content with the Clause subject to the amendment proposed by the Department to allow councils to deal more effectively with graffiti and fly-posting.

Clause 32 - Recovery of expenditure

258. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

Clause 33 - Guidance

259. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

Clause 34 - Appeals

260. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

Clause 35 - Exemption from liability in relation to defacement removal notices

261. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

New Clause

262. At the meeting on 13 January 2011 the Committee was content with the New Clause to be inserted after Clause 35 to allow councils to deal more effectively with graffiti and fly-posting.

Clause 36 - Sale of aerosol paint to children

263. At the meeting on 13 January 2011 the Committee was content with Clause 36 as amended by the Department to raise the limit below which it is illegal to sell aerosol paints to 18.

Clause 37 - Unlawful display of advertisements

264. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

New Clause

265. At the meeting on 13 January 2011 the Committee was content with the New Clause to be inserted after Clause 37 to give councils more information-gathering powers.

Clause 38 - Power to make dog control orders

266. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

Clause 39 - Dog control orders: supplementary

267. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

Clause 40 - Land to which this Part applies

268. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

Clause 41 - Fixed penalty notices for contravention of dog control order

269. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

Clause 42 - Amount of fixed penalties

270. At the meeting on 13 January 2011 the Committee was content with the Clause subject to the amendment proposed by the Department to make the power to alter the amount of fixed penalty specified on the face of the Bill subject to draft affirmative procedure.

Clause 43 - Power to require name and address

271. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

Clause 44 – Byelaws

272. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

New Clause

273. At the meeting on 13 January 2011 the Committee was content with the New Clause to be inserted after Clause 44 to give councils more information-gathering powers.

Clause 45 - Designation of alarm notification areas

274. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

Clause 46 - Withdrawal of designation

275. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

Clause 47 - Notification of nominated key-holders

276. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

Clause 48 - Nomination of key-holders

277. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

Clause 49 - Offences under section 47: fixed penalty notices

278. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

Clause 50 - Amount of fixed penalty

279. At the meeting on 13 January 2011 the Committee was content with the Clause subject to the amendment proposed by the Department to make the power to alter the amount of fixed penalty specified on the face of the Bill subject to draft affirmative procedure.

Clause 51 - Use of fixed penalty receipts

280. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

Clause 52 - Fixed penalty notices: power to require name and address

281. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

Clause 53 - Powers of entry

282. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

Clause 54 - Warrant to enter premises by force

283. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

Clause 55 - Powers of entry: supplementary

284. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

Clause 56 - Interpretation of this Chapter

285. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

Clause 57 - Dealing with noise at night

286. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

Clause 58 - Noise offences: fixed penalty notices

287. At the meeting on 13 January 2011 the Committee was content with the Clause subject to the amendment proposed by the Department to make the power to alter the amount of fixed penalty specified on the face of the Bill subject to draft affirmative procedure.

Clause 59 - Extension of Noise Act 1996 to licensed premises etc.

288. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

Clause 60 - Statutory nuisances

289. At the meeting on 13 January 2011 the Committee was content with the Clause subject to the amendments proposed by the Department to expand the definition of ‘owner’ in Clause 65 to the whole of Part 7.

Clause 61 - Duty of district council to inspect for statutory nuisance

290. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

Clause 62 - Summary proceedings for statutory nuisances

291. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

Clause 63 - Abatement notice in respect of noise in the street

292. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

Clause 64 - Supplementary provisions

293. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

Clause 65 - Expenses recoverable from owner to be a charge on premises

294. At the meeting on 13 January 2011 the Committee was content with the Clause subject to the amendment proposed by the Department to expand the definition of ‘owner’ in this clause to the whole of Part 7.

Clause 66 - Payment of expenses by instalments

295. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

Clause 67 - Summary proceedings by persons aggrieved by statutory nuisances

296. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

Clause 68 - Application of this Part to Crown

297. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

Clause 69 - Use of penalty receipts

298. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

Clause 70 - Offences relating to pollution etc.: penalties on conviction

299. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

Clause 71 - Offences by bodies corporate

300. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

Clause 72 - Regulations and orders

301. At the meeting on 13 January 2011 the Committee was content with the Clause subject to the amendments proposed by the Department to make the powers to alter the amount of fixed penalty specified on the face of the Bill subject to draft affirmative procedure.

Clause 73 – Interpretation

302. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

Clause 74 - Minor and consequential amendments and repeals

303. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

Clause 75 – Commencement

304. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

Clause 76 - Short title

305. At the meeting on 13 January 2011 the Committee was content with the Clause as drafted.

Schedule 1

306. At the meeting on 13 January 2011 the Committee was content with the Schedule as drafted.

Schedule 2

307. At the meeting on 13 January 2011 the Committee was content with the Schedule as drafted.

Schedule 3

308. At the meeting on 13 January 2011 the Committee was content with the Schedule as drafted.

Long Title

309. At the meeting on 13 January 2011 the Committee was content with the Long Title as drafted.

Appendix 1

Minutes of Proceedings Relating to the Report

Thursday 11 February 2010,
Room 144, Parliament Buildings

Present: Mr Roy Beggs
Mr John Dallat
Mr David Ford
Mrs Dolores Kelly (Chairperson)
Mr Danny Kinahan
Mr Ian McCrea
Mr Alastair Ross
Mr Peter Weir

In Attendance: Dr Alex McGarel (Assembly Clerk)
Mr Sean McCann (Assistant Clerk)
Mr Nathan McVeigh (Clerical Supervisor)
Ms Antoinette Bowen (Clerical Officer)

Apologies: Mr Jonathan Bell
Mr Cathal Boylan (Deputy Chairperson)

5. Departmental briefing on draft Clean Neighbourhood and Environment Bill - Outline of Policy Proposals

The following members declared an interest:

Roy Beggs – Member of Carrickfergus Borough Council

Ian McCrea – Member of Cookstown District Council

John Dallat – Member of Coleraine Borough Council

Dolores Kelly – Member of Craigavon Borough Council

Danny Kinahan – Member of Antrim Borough Council

Departmental officials briefed the Committee and answered members’ questions on the draft Clean Neighbourhood and Environment Bill - Outline of Policy Proposals

The main areas of discussion were enforcement, collection of fines and fixed penalty notices.

Dolores Kelly

Chairperson, Committee for the Environment
18 February 2010

[EXTRACT]

Thursday 4 March 2010,
Room 144, Parliament Buildings

Present: Mr Jonathan Bell
Mr Roy Beggs
Mr John Dallat
Mr David Ford
Mrs Dolores Kelly (Chairperson)
Mr Danny Kinahan
Mr Alastair Ross

In Attendance: Dr Alex McGarel (Assembly Clerk)
Mr Sean McCann (Assistant Clerk)
Mr Nathan McVeigh (Clerical Supervisor)
Ms Antoinette Bowen (Clerical Officer)

Apologies: Mr Cathal Boylan (Deputy Chairperson)
Mr Ian McCrea
Mr Daithi McKay
Mr Peter Weir

Consultation on draft Clean Neighbourhood and Environment Bill

Agreed: That Committee staff draft an interim response to this consultation.

Dolores Kelly

Chairperson, Committee for the Environment
4 March 2010

[EXTRACT]

Thursday 10 June 2010,
Room 144, Parliament Buildings

Present: Mr Roy Beggs
Mr Cathal Boylan (Chairperson)
Mr John Dallat
Mr Danny Kinahan
Mr Ian McCrea
Mr Patsy McGlone
Mr Alastair Ross
Mr Peter Weir
Mr Brian Wilson

In Attendance: Dr Alex McGarel (Assembly Clerk)
Mr Sean McCann (Assistant Clerk)
Mr Nathan McVeigh (Clerical Supervisor)
Ms Antoinette Bowen (Clerical Officer)

Apologies: Mr Jonathan Bell

12. Consultations

The following members declared an interest:

Mr Beggs – Carrickfergus Borough Council

Mr McCrea - Cookstown District Council

Mr McGlone – Cookstown District Council

Mr Weir – North Down Borough Council

Mr Wilson – North Down Borough Council

Draft Clean Neighbourhoods and Environment Bill – synopsis of responses to consultation

Agreed: That the Committee is content for the Department to proceed with the policy.

Cathal Boylan

Chairperson, Committee for the Environment
17 June 2010

[EXTRACT]

Thursday 1 July 2010,
Room 144, Parliament Buildings

Present: Mr Roy Beggs
Mr Jonathan Bell
Mr Cathal Boylan (Chairperson)
Mr John Dallat
Mr Danny Kinahan
Mr Patsy McGlone
Mr Brian Wilson

In Attendance: Dr Alex McGarel (Assembly Clerk)
Mr Sean McCann (Assistant Clerk)
Mr Nathan McVeigh (Clerical Supervisor)
Ms Antoinette Bowen (Clerical Officer)

Apologies: Mr Ian McCrea
Mr Daithi McKay
Mr Alastair Ross
Mr Peter Weir

10. Clean Neighbourhoods and Environment Bill

The Chairperson informed members that they had been provided with a draft motion to extend the Committee Stage of the Bill up to Christmas Recess, a draft public notice and a draft stakeholder list and a copy of the delegated powers of the Bill.

Agreed: That the motion to extend is lodged with the Business Office.

Agreed: That the public notice is placed in the 3 main newspapers.

Agreed: That letters asking for submissions on the Bill are sent to the main stakeholders.

Agreed: That the delegated powers memorandum is forwarded to the Examiner of Statutory Rules for comment.

Agreed: That a memo is sent to the Committee for Regional Development and Department of Regional Development asking for comments on the Bill.

Cathal Boylan

Chairperson, Committee for the Environment
2 September 2010

[EXTRACT]

Thursday 30 September 2010,
Room 144, Parliament Buildings

Present: Mr Roy Beggs
Mr Cathal Boylan (Chairperson)
Mr Thomas Buchanan
Mr Trevor Clarke
Mr John Dallat
Mr Danny Kinahan
Mr Patsy McGlone
Mr Peter Weir
Mr Brian Wilson

In Attendance: Dr Alex McGarel (Assembly Clerk)
Mr Sean McCann (Assistant Clerk)
Mr Nathan McVeigh (Clerical Supervisor)
Ms Antoinette Bowen (Clerical Officer)

Apologies: Mr Willie Clarke
Mr Alastair Ross

7. Assembly Research briefing on Clean Neighbourhoods and Environment Bill

12.01p.m Mr McGlone left the meeting.

An Assembly Researcher briefed the Committee and answered members’ questions on the Clean Neighbourhoods and Environment Bill.

12.15p.m Mr Wilson rejoined the meeting.

Agreed: That the Research paper is published on the Assembly website.

8. Departmental briefing on Clean Neighbourhoods and Environment Bill

12.21p.m Mr McGlone rejoined the meeting.

The following members declared an interest:

Mr Beggs –Member of Carrickfergus Borough Council.

Mr Wilson –Member of North Down Borough Council.

Departmental officials briefed the Committee and answered members’ questions on the Clean Neighbourhoods and Environment Bill.

12.40p.m Mr Trevor Clarke rejoined the meeting.

The main areas of discussion were the purpose of each clause of the Bill and its implications.

12.42p.m Mr Dallat left the meeting.

Agreed: That Departmental officials provide a written response to a question on whether the Bill provides the power for an innocent party to recoup costs from the beneficiaries of an advertisement for removal of posters that have been flyposted.

Cathal Boylan
Chairperson, Committee for the Environment
7 October 2010

[EXTRACT]

Thursday 16 September 2010,
Room 144, Parliament Buildings

Present: Mr Roy Beggs
Mr Cathal Boylan (Chairperson)
Mr Thomas Buchanan
Mr Trevor Clarke
Mr Willie Clarke
Mr Danny Kinahan
Mr Patsy McGlone
Mr Alastair Ross
Mr Peter Weir
Mr Brian Wilson

In Attendance: Dr Alex McGarel (Assembly Clerk)
Mr Sean McCann (Assistant Clerk)
Mr Nathan McVeigh (Clerical Supervisor)
Ms Antoinette Bowen (Clerical Officer)

Apologies: Mr John Dallat

8. Clean Neighbourhoods and Environment Bill

Members noted copies of the submissions received on the Bill.

The Chairperson informed members that the following organisations/individuals have been invited to provide oral evidence:

Agreed: That the following organisations are invited to give oral evidence to the Committee on the bill:

• Tom Ekin
• Children in NI/Include Youth/Children’s Law Centre/Playboard – joint delegation
• NILGA
• Countryside Alliance/Kennel Club – joint delegation
• Tidy NI
• Pubs of Ulster

Cathal Boylan
Chairperson, Committee for the Environment
23 September 2010

[EXTRACT]

Thursday 07 October 2010,
Carrickfergus Castle

Present: Mr Roy Beggs
Mr Cathal Boylan (Chairperson)
Mr Thomas Buchanan
Mr Willie Clarke
Mr John Dallat
Mr Patsy McGlone
Mr Peter Weir
Mr Brian Wilson

In Attendance: Dr Alex McGarel (Assembly Clerk)
Mr Sean McCann (Assistant Clerk)
Mr Nathan McVeigh (Clerical Supervisor)
Ms Antoinette Bowen (Clerical Officer)

Apologies: Mr Trevor Clarke
Mr Danny Kinahan
Mr Alastair Ross

10.10 a.m. The meeting began in public session

7. Pubs of Ulster briefing on Clean Neighbourhoods and Environment Bill

A representative from Pubs of Ulster briefed the Committee and answered members’ questions on the Clean Neighbourhoods and Environment Bill.

The main areas of discussion were the potential implications for small businesses from the Bill’s proposals on dealing with fly posting and the distribution of leaflets.

Agreed: That more information is sought in relation to a communal fly posting area in Coleraine.

Cathal Boylan
Chairperson, Committee for the Environment
14 October 2010

[EXTRACT]

Thursday 04 November 2010,
Room 144, Parliament Buildings

Present: Mr Cathal Boylan (Chairperson)
Mr Thomas Buchanan
Mr Trevor Clarke
Mr Willie Clarke
Mr John Dallat
Mr Danny Kinahan
Mr Patsy McGlone
Mr Peter Weir

In Attendance: Dr Alex McGarel (Assembly Clerk)
Mr Sean McCann (Assistant Clerk)
Mr Nathan McVeigh (Clerical Supervisor)
Ms Antoinette Bowen (Clerical Officer)

Apologies: Mr Alastair Ross
Mr Brian Wilson

5. NILGA briefing on the Clean Neighbourhoods and Environment Bill

Mr Weir declared an interest as a member of the Executive of NILGA

Mr Willie Clarke declared an interest as a member of Down District Council

Representatives from NILGA briefed the Committee and answered member’s questions on the Clean Neighbourhoods and Environment Bill.

The main areas of discussion were fixed penalty notices, the need for guidance in relation to the Bill, the need for a lead in period on the Bill, the need for the Bill to include derelict buildings and the cost to councils of alleygating.

10.41a.m Mr Buchanan joined the meeting.

11.20a.m Mr McGlone left the meeting.

Agreed: That NILGA provides the Committee with further information in relation to derelict property, suggestions on the lead-in times required for the Bill, future actions that are needed in relation to the Bill but that there is not enough time to include, clarification of equality proofing, breakdown of costs on alleygating, other costs that they anticipate are likely to fall to councils as a result of the Bill, their perception of the successes of alleygating, the range of fixed penalty notices that are needed and clarification about the concern for the need for keyholders in relation to house alarms.

6. The Environmental Quality Forum (NIEQF) briefing on the Clean Neighbourhoods and Environment Bill

11.26a.m Mr McGlone rejoined the meeting.

Representatives from The Environmental Quality Forum briefed the Committee and answered member’s questions on the Clean Neighbourhoods and Environment Bill.

The main areas of discussion were litter, the level of fines in relation to fixed penalty notices and guidance on selling vehicles at the roadside.

7. Children and youth groups briefing on the Clean Neighbourhoods and Environment Bill

Representatives from children and youth groups briefed the Committee and answered member’s questions on the Clean Neighbourhoods and Environment Bill.

The main areas of discussion were fixed penalty notices, the implications the Bill has on children and young people, gating orders and shared space for children to play safely.

12.46p.m Mr McGlone left the meeting.

Agreed: That a letter is sent to the Department asking the length of the consultation period and which children and youth groups were consulted on the proposals for the Bill.

Agreed: That a letter is sent to the Department asking why it was decided that an Equality Impact Assessment was not needed on the Bill.

Agreed: That the 4 groups would provide the Committee with information on the negative experiences of similar legislation already in operation in England and Wales.

Cathal Boylan
Chairperson, Committee for the Environment
11 November 2010

[EXTRACT]

Thursday 11 November 2010,
Room 144, Parliament Buildings

Present: Mr Cathal Boylan (Chairperson)
Mr Thomas Buchanan
Mr Trevor Clarke
Mr Willie Clarke
Mr John Dallat
Mr Alastair Ross
Mr Patsy McGlone
Mr George Savage
Mr Peter Weir
Mr Brian Wilson

In Attendance: Dr Alex McGarel (Assembly Clerk)
Mr Sean McCann (Assistant Clerk)
Mr Nathan McVeigh (Clerical Supervisor)
Ms Antoinette Bowen (Clerical Officer)

Apologies: Mr Danny Kinahan

4. Countryside Alliance/Kennel Club briefing on the Clean Neighbourhoods and Environment Bill

10.27a.m Mr Savage joined the meeting.

Mr Willie Clarke declared an interest as a member of Down District Council.

10.34a.m Mr Trevor Clarke joined the meeting.

Representatives from Countryside Alliance Ireland and the Kennel Club briefed the Committee and answered member’s questions on the Clean Neighbourhoods and Environment Bill.

The main areas of discussion were access to land, dog walking, the dog order, the cost of training council officers and fixed penalty notices.

Agreed: That Assembly Research is asked to provide statistics on stray dogs within each council area in the past year.

Agreed: That a letter is sent to the Department asking how the Bill will impact on rural sports, particularly in relation to sporting dogs and their freedom of movement and asking for further information on how the issue of derelict buildings will be dealt with by the Bill.

The Chairperson suspended the meeting at 10.45a.m.to allow members to attend the Remembrance Service in the Senate Chamber.

11.14a.m. The meeting continued with the following members present:

Mr Boylan, Mr Buchanan, Mr Dallat, Mr Ross, Mr Trevor Clarke and Mr Willie Clarke.

5. Briefing on the Clean Neighbourhoods and Environment Bill – Tom Ekin

Mr Wilson declared an interest as a member of North Down Borough Council.

11.16a.m Mr Savage rejoined the meeting.

11.17a.m Mr McGlone rejoined the meeting.

11.20a.m Mr Weir rejoined the meeting.

11.21a.m Mr Wilson rejoined the meeting.

Mr Ekin briefed the Committee and answered member’s questions on the Clean Neighbourhoods and Environment Bill.

The main areas of discussion were the necessary powers to councils to deal with issues outlined in the Bill, the need to introduce the Bill quickly, fly posting and derelict sites.

Cathal Boylan
Chairperson, Committee for the Environment
18 November 2010

[EXTRACT]

Thursday 18 November 2010,
Senate Chamber, Parliament Buildings

Present: Mr Cathal Boylan (Chairperson)
Mr Thomas Buchanan
Mr Trevor Clarke
Mr John Dallat
Mr Danny Kinahan
Mr Alastair Ross
Mr Patsy McGlone
Mr George Savage
Mr Peter Weir
Mr Brian Wilson

In Attendance: Dr Alex McGarel (Assembly Clerk)
Mr Sean McCann (Assistant Clerk)
Mr Nathan McVeigh (Clerical Supervisor)
Ms Antoinette Bowen (Clerical Officer)

Apologies: Mr Willie Clarke

10.09a.m. The meeting began in public session.

6. Clean Neighbourhoods and Environment Bill

Members deferred discussion of this item until its meeting on 25 November 2010.

Cathal Boylan
Chairperson, Committee for the Environment

25 November 2010

[EXTRACT]

Thursday 25 November 2010,
Room 144, Parliament Buildings

Present: Mr Cathal Boylan (Chairperson)
Mr Thomas Buchanan
Mr Willie Clarke
Mr John Dallat
Mr Danny Kinahan
Mr Patsy McGlone
Mr Peter Weir
Mr Brian Wilson

In Attendance: Dr Alex McGarel (Assembly Clerk)
Mr Sean McCann (Assistant Clerk)
Mr Nathan McVeigh (Clerical Supervisor)
Ms Antoinette Bowen (Clerical Officer)

Apologies: Mr Alastair Ross

6. Clean Neighbourhoods and Environment Bill – informal clause by clause consideration

Departmental officials briefed the Committee and answered members’ questions on clauses 2-15 of the Clean Neighbourhoods and Environment Bill.

Agreed: That the Department considers the possibility of amending Clauses 4 and 7 to ensure that subordinate legislation is subject to the draft affirmative procedure.

Cathal Boylan
Chairperson, Committee for the Environment
02 December 2010

[EXTRACT]

Thursday 02 December 2010,
Room 144, Parliament Buildings

Present: Mr Cathal Boylan (Chairperson)
Mr Thomas Buchanan
Mr Trevor Clarke
Mr Willie Clarke
Mr John Dallat
Mr Danny Kinahan
Mr Patsy McGlone
Mr George Savage
Mr Peter Weir
Mr Brian Wilson

In Attendance: Dr Alex McGarel (Assembly Clerk)
Mr Sean McCann (Assistant Clerk)
Mr Nathan McVeigh (Clerical Supervisor)
Ms Antoinette Bowen (Clerical Officer)

Apologies:

4. Clean Neighbourhoods and Environment Bill – informal clause by clause consideration – Parts 1, 3 and 5

10.55a.m Mr Trevor Clarke joined the meeting.

Mr Willie Clarke declared an interest as a member of Down District Council.

The main areas of discussion were fixed penalty notices for litter offences, gating orders and the possibility of expectations being raised within communities, litter clearing exemptions, liaison with the Department of Justice and the distribution of printed material.

Agreed: That Departmental officials provide clarification on Clause 17 in relation to exemptions for Crown land and educational establishments and information on enforcement action that has been taken to date under the Litter Order in relation to Crown land.

Agreed: That Department provides it with legal opinion, on Clause 21, on the grounds on which a council may base a decision to approve or refuse consent to distribute printed material on the street and more information on how the Department envisages this working in practice.

Agreed: That Officials agreed to consider an amendment to Clause 22 to make it subject to draft affirmative procedure.

Agreed: That the Department advises the Committee if there is legal advice in relation to Clause 1, gating orders, as there was a feeling that the introduction of the Bill will lead to a situation where expectations are raised in relation to installing gates and the possibility of councils having a duty to install them when communities ask for them.

Cathal Boylan
Chairperson, Committee for the Environment
09 December 2010

[EXTRACT]

Thursday 09 December 2010,
Radisson Blu Roe Hotel, Limavady

Present: Mr Cathal Boylan (Chairperson)
Mr Trevor Clarke
Mr Willie Clarke
Mr John Dallat
Mr Peter Weir

In Attendance: Dr Alex McGarel (Assembly Clerk)
Mr Sean McCann (Assistant Clerk)
Mr Nathan McVeigh (Clerical Supervisor)
Ms Antoinette Bowen (Clerical Officer)

Apologies: Mr Thomas Buchanan
Mr Danny Kinahan
Mr Patsy McGlone
Mr Alastair Ross
Mr George Savage
Mr Brian Wilson

6. Clean Neighbourhoods and Environment Bill – informal clause by clause consideration – Parts 4, 5, 6, 7, 8 and schedules

The Committee continued informal consideration of the Clean Neighbourhoods and Environment Bill.

12.31p.m Mr Weir rejoined the meeting.

The Departmental officials agreed to provide the Committee with further information on the following:

Clause 28 –Departmental officials agreed to provide the Committee with an example of the guidance on how the Bill will deal with the issuing of notices to juveniles.

Clause 36 – Department officials agreed to provide the Committee with the age limit on sale of aerosols in Scotland and also agreed to consider amending the Bill to raise the age limit to 18.

Clause 53 - Department officials agreed to clarify the situation in regards to damage to alarms caused by Council officials.

Clause 60 - Department officials agreed to consider an amendment in relation to noise from illegal motor sports tracks.

In relation to Clause 60(1) (l), Departmental officials agreed to reconsider this Clause and provide the Committee with NIEA’s views on it.

Clause 61 - Department officials agreed to consider an amendment in relation to pigeons.

Cathal Boylan
Chairperson, Committee for the Environment
16 December 2010

[EXTRACT]

Thursday 16 December 2010,
Room 144, Parliament Buildings

Present: Mr Cathal Boylan (Chairperson)
Mr Thomas Buchanan
Mr Trevor Clarke
Mr Willie Clarke
Mr John Dallat
Mr Danny Kinahan
Mr Patsy McGlone
Mr Alastair Ross
Mr Peter Weir
Mr Brian Wilson

In Attendance: Dr Alex McGarel (Assembly Clerk)
Mr Sean McCann (Assistant Clerk)
Mr Nathan McVeigh (Clerical Supervisor)
Ms Antoinette Bowen (Clerical Officer)

4. Clean Neighbourhoods and Environment Bill – formal clause by clause consideration –Parts 1, 2 and 3

The Chairperson informed members that they had been provided with a Departmental response to Committee queries on Parts 1 and 3 at Tab 3R, information on gating orders from Belfast City Council at Tab 3S and information from NILGA on the costs of the Bill also at Tab 3S.

Agreed: That the responses are incorporated into the final Committee report.

10.54 am Mr McGlone rejoined the meeting.

CLAUSE 1 – Gating Orders

Agreed: That the Committee is content with Clause 1 as drafted.

CLAUSE 2- Exposing vehicles for sale on a road

Agreed: That the Committee is content with Clause 2 as drafted.

CLAUSE 3 – repairing vehicles on a road

Agreed: That the Committee is content with Clause 3 as drafted.

CLAUSE 4 – power to give fixed penalty notices

Agreed: That the Committee is content with Clause 4 subject to the amendment proposed by the Department to make orders under sub-section 9 subject to draft affirmative procedure.

CLAUSES 5 and 6 – power to require name and address and use of fixed penalty receipts

Agreed: That the Committee is content with Clauses 5 and 6 as drafted.

CLAUSE 7 – offence of abandoning a vehicle: fixed penalty notices

Agreed: That the Committee is content with Clause 7 as drafted.

CLAUSES 8 - 13 – Notice of removal of vehicle by district council, Disposal of removed vehicle by district council, Guidance, Notice of removal of vehicle, Disposal of vehicle by police officer and Disposal of vehicle by department

Agreed: That the Committee is content with Clauses 8 - 13 as drafted.

CLAUSE – 14 – Offence of dropping litter in lake, pond or watercourse

Agreed: That the Committee is content with Clause 14 as drafted.

CLAUSE 15 – penalty for failing to provide name

Agreed: That the Committee is content with Clause 15 as drafted.

CLAUSE 16 – litter offence: fixed penalty notice

Agreed: That a formal decision on Clause 16 is deferred until the meeting on 13 January 2011 when the Department provides the Committee with the guidance on the issuing of fixed penalty notices.

Mr W. Clarke wished it to be noted that he was totally opposed to the Clause.

CLAUSE 17 – litter clearing notices

Agreed: That the Committee is content with Clause 17 as drafted.

CLAUSE 18 – street litter: control notices

Agreed: That the Committee is content with Clause 17 as drafted.

CLAUSES 19 and 20 – street litter: supplementary provisions and failure to comply with notice: fixed penalty notices

Agreed: That the Committee is content with Clauses 19 - 20 as drafted.

CLAUSE 21 – controls on free distribution of printed matter

Agreed: That a formal decision on Clause 21 is deferred until the meeting on 13 January 2011 when the Department provides the Committee with an answer to queries on the impact of this Clause on Crown land.

CLAUSES 22 and 23 – fixed penalty notices: supplementary and exclusion of liability

Agreed: That the Committee is content with Clauses 22 - 23 as drafted.

CLAUSE 24 – abandoned shopping and luggage trolleys

Agreed: That the Committee is content with Clause 24 as drafted.

CLAUSE 25 – Section 24: transitional provision

Agreed: That the Committee is content with Clause 25 as drafted.

Cathal Boylan
Chairperson, Committee for the Environment
13 January 2011

[EXTRACT]

Thursday 13 January 2011,
Room 144, Parliament Buildings

Present: Mr Cathal Boylan (Chairperson)
Mr Thomas Buchanan
Mr Willie Clarke
Mr John Dallat
Mr Danny Kinahan
Mr Patsy McGlone
Mr Alastair Ross
George Savage
Mr Peter Weir
Mr Brian Wilson

In Attendance: Dr Alex McGarel (Assembly Clerk)
Mr Sean McCann (Assistant Clerk)
Mr Nathan McVeigh (Clerical Supervisor)
Ms Antoinette Bowen (Clerical Officer)

4. Clean Neighbourhoods and Environment Bill – formal clause by clause consideration –Parts 4 – 8 and schedules

10.35 am Mr McGlone left the meeting.

The Chairperson informed the Committee that at the meeting on 16 December 2010 the Committee agreed Clauses 4, 7 and 22 in Parts 2 and 3 of the Bill subject to amendments making the regulations in these clauses to alter the level of fixed penalty fines subject to draft affirmative procedure. The Committee had been provided with a copy of the amendments.

Agreed: That the Committee is content with the proposed amendments to Clauses 4, 7 and 22.

The Chairperson informed members that he would ask them to come to a decision on Clauses 16 and 21 which had been deferred form the meeting on 16 December 2010.

Clause 16 – litter offence: fixed penalty notice.

The Chairperson asked members if they were content with the Clause as drafted.

The Committee divided.

AYES NOES
Peter Weir Cathal Boylan
Thomas Buchanan Willie Clarke
Alastair Ross John Dallat
George Savage Brian Wilson

Agreed: That the Committee is content with the Clause as drafted.

Clause 21 – controls on free distribution of printed matter

Agreed: That the Committee is content with Clause 21 as drafted.

The Chairperson informed members that the Committee now needed to formally consider Parts 4 – 8 of the Bill starting at Clause 26.

Clause 26 - Penalty notices for graffiti and fly-posting

Agreed: That the Committee is content with Clause 26 subject to the amendment proposed by the Department to allow councils to deal more effectively with graffiti and flyposting.

Agreed: That the Committee makes a recommendation in its report that councils are encouraged to provide flyposting sites.

Clause 27 - Amount of penalty

Agreed: That the Committee is content with Clause 27 subject to the amendment proposed by the Department to make the power to alter the amount of fixed penalty specified on the face of the Bill subject to draft affirmative procedure.

Clause 28 – Penalty notices: power to require name and address

Agreed: That the Committee is content with Clause 28 as drafted.

10.45 am Mr McGlone rejoined the meeting.

Clauses 29 - 30 – Penalty receipts and Guidance

Agreed: That the Committee is content with Clauses 29 -30 as drafted.

Clause 31 – Defacement removal notices

Agreed: That the Committee is content with Clause 31 subject to the amendment proposed by the Department to allow councils to deal more effectively with graffiti and flyposting.

Clauses 32 - 35 – Recovery of expenditure, Guidance, Appeals and Exemption from liability in relation to defacement removal notices

Agreed: That the Committee is content with Clauses 32 - 35 as drafted.

The Chairperson informed members that the Department had indicated its intention to strengthen Part 4 of the Bill to allow district councils to deal more effectively with graffiti and flyposting and that it intends to achieve this by inserting a new clause after Clause 35.

New Clause

Agreed: That the Committee is content with the New Clause to be inserted after Clause 35 to allow councils to deal more effectively with graffiti and flyposting.

Clause 36 – Sale of aerosol paint to children

10.55 am Mr Dallat left the meeting.

Agreed: That the Committee is content with Clause 36 as amended by the Department to raise the limit below which it is illegal to sell aerosol paints to 18.

Clause 37 – Unlawful display of advertisements

Agreed: That the Committee is content with Clause 37 as drafted.

10.55 am Mr Weir left the meeting.

10.55 am Mr Wilson left the meeting.

10.57 am Mr McGlone left the meeting.

The Chairperson informed members that the Department had indicated its intention to strengthen Part 4 of the Bill to give councils improved information-gathering powers and that it intends to achieve this by inserting a new clause after Clause 37.

New Clause

Agreed: That the Committee is content with the New Clause to be inserted after Clause 37 to give councils more information-gathering powers.

Clauses 38 – 41 - Power to make dog control orders, Dog control orders: supplementary, Land to which this Part applies and Fixed penalty notices for contravention of dog control order

Agreed: That the Committee is content with Clauses 38 - 41 as drafted.

Clause 42 – Amount of fixed penalties

Agreed: That the Committee is content with Clause 42 subject to the amendment proposed by the Department to make the power to alter the amount of fixed penalty specified on the face of the Bill subject to draft affirmative procedure.

Clauses 43 – 44 - Power to require name and address and Byelaws

Agreed: That the Committee is content with Clauses 43 - 44 as drafted.

The Chairperson informed members that the Department had indicated its intention to strengthen Part 5 of the Bill to give councils improved information-gathering powers. It intends to achieve this by inserting a new clause after Clause 44.

New Clause

Agreed: That the Committee is content with the New Clause to be inserted after Clause 44 to give councils more information-gathering powers.

Clauses 45 – 49 - Designation of alarm notification areas, Withdrawal of designation, Notification of nominated key-holders, Nomination of key-holders and Offences under section 47: fixed penalty notices

Agreed: That the Committee is content with Clauses 45 - 49 as drafted.

Clause 50 – Amount of fixed penalty

Agreed: That the Committee is content with Clause 50 subject to the amendment proposed by the Department to make the power to alter the amount of fixed penalty specified on the face of the Bill subject to draft affirmative procedure.

Clauses 51 and 52 - Use of fixed penalty receipts and fixed penalty notices: power to require name and address

Agreed: That the Committee is content with Clauses 51 and 52 as drafted.

11.08 am Mr Weir rejoined the meeting.

Clause 53 – Power of entry

Agreed: That the Committee is content with Clause 53 as drafted.

Clauses 54 – 57 - Warrant to enter premises by force, Powers of entry: supplementary, Interpretation of this Chapter, Dealing with noise at night

Agreed: That the Committee is content with Clauses 54 - 57 as drafted.

Clause 58 – Noise offences: fixed penalty notices

Agreed: That the Committee is content with Clause 58 subject to the amendment proposed by the Department to make the power to alter the amount of fixed penalty specified on the face of the Bill subject to draft affirmative procedure.

Clause 59 – Extension of Noise Act 1996 to licensed premises etc.

Agreed: That the Committee is content with Clause 59 as drafted.

Clause 60 – Statutory nuisances

Agreed: That the Committee is content with Clause 60 subject to the amendments proposed by the Department to expand the definition of ‘owner’ in Clause 65 to the whole of Part 7.

11.15 am Mr McGlone rejoined the meeting.

11.15 am Mr Dallat rejoined the meeting.

Clause 61 – Duty of district council to inspect for statutory nuisance

Agreed: That the Committee is content with Clause 61 as drafted.

Clauses 62 – 64 Summary proceedings for statutory nuisances, Abatement notice in respect of noise in the street and Supplementary provisions,

Agreed: That the Committee is content with Clauses 62 - 64 as drafted.

Clause 65 – Expenses recoverable from owner to be a charge on premises,

Agreed: That the Committee is content with Clause 65 subject to the amendment proposed by the Department to expand the definition of ‘owner’ in this clause to the whole of Part 7.

Clauses 66 - 68 - Payment of expenses by instalments, Summary proceedings by persons aggrieved by statutory nuisances and Application of this Part to Crown

Agreed: That the Committee is content with Clauses 62 - 68 as drafted.

Clause 69 - 71 - Use of penalty receipts, Offences relating to pollution etc.: penalties on conviction and Offences by bodies corporate

Agreed: That the Committee is content with Clauses 69 - 71 as drafted.

Clause 72 – Regulations and orders

Agreed: That the Committee is content with Clause 72 subject to the amendments proposed by the Department to make the powers to alter the amount of fixed penalty specified on the face of the Bill subject to draft affirmative procedure.

Clauses 73 - 76 -, Interpretation, Minor and consequential amendments and repeals, Commencement and Short title.

Agreed: That the Committee is content with Clauses 73 - 76 as drafted.

Schedules 1 – 4 Application of the Noise Act 1996 to licensed premises etc., Statutory nuisances: supplementary provisions, Minor and consequential amendments and Repeals

Agreed: That the Committee is content with Schedules 1-4 as drafted.

Long title

Agreed: That the Committee is content with the Long Title as drafted.

The Chairperson informed members that this concluded formal clause by clause consideration of the Clean Neighbourhoods and Environment Bill and that a draft Committee report would be brought back to the Committee for consideration at the meeting on 27 January 2011.

Cathal Boylan
Chairperson, Committee for the Environment
20 January 2011

[EXTRACT]

Wednesday 26 January 2011,
Room 29, Parliament Buildings

Present: Mr Cathal Boylan (Chairperson)
Mr Trevor Clarke
Mr Willie Clarke
Mr Danny Kinahan
Mr Alastair Ross
Mr George Savage
Mr Brian Wilson

In Attendance: Dr Alex McGarel (Assembly Clerk)
Mr Sean McCann (Assistant Clerk)
Mr Nathan McVeigh (Clerical Supervisor)
Ms Antoinette Bowen (Clerical Officer)

Apologies: Mr Thomas Buchanan
Mr John Dallat
Mr Patsy McGlone
Mr Peter Weir

2. Clean Neighbourhoods and Environment Bill

The Chairperson informed members that at the meeting on 13 January 2011 the Committee divided on Clause 16 of the Bill - Litter offence: fixed penalty notice. In the minutes of the meeting the decision was recorded as the Committee being content with the clause as drafted. This was incorrect as the vote was tied thus meaning that the Committee did not agree the clause as drafted. The Committee now needed to reconsider the clause.

Agreed: That the Committee is content with the Clause subject to a Committee amendment to address its concerns about issuing fixed penalty notices to minors.

Cathal Boylan
Chairperson, Committee for the Environment
27 January 2011

[EXTRACT]

Thursday 27 January 2011,
Room 144, Parliament Buildings

Present: Mr Cathal Boylan (Chairperson)
Mr Trevor Clarke
Mr Danny Kinahan
Mr Patsy McGlone
Mr Alastair Ross
Mr Peter Weir
Mr Brian Wilson

In Attendance: Dr Alex McGarel (Assembly Clerk)
Mr Sean McCann (Assistant Clerk)
Mr Nathan McVeigh (Clerical Supervisor)
Ms Antoinette Bowen (Clerical Officer)

Apologies: Mr Thomas Buchanan
Mr Willie Clarke
Mr John Dallat
Mr George Savage

3. Clean Neighbourhoods and Environment Bill

The Committee noted further Departmental amendments to the Bill.

The Chairperson informed members that they now needed to consider the draft report on the Clean Neighbourhoods and Environment Bill which included a change to reflect the Committee’s decision, at the meeting on 26 January, to agree an amendment to Clause 16.

Agreed: That the report is ordered to be printed.

Cathal Boylan
Chairperson, Committee for the Environment
3 February 2011

[EXTRACT]

Appendix 2

Minutes of Evidence

16 September 2010

Members present for all or part of the proceedings:

Mr Fred Cobain (Chairperson)
Miss Michelle McIlveen (Deputy Chairperson)
Mr Cathal Boylan
Mr Allan Bresland
Mr Danny Kinahan
Mr Billy Leonard
Mr Fra McCann
Mr McCrea
Mr Conall McDevitt

Witnesses:

1. The Chairperson: We will move on quickly to briefings on the Clean Neighbourhoods and Environment Bill.

2. The Committee Clerk: Members, there will be two briefings on the Bill. The first is from Research Services. Hansard is present to record the meeting. The Committee’s views will be relayed to the Committee for the Environment because it is the Department of the Environment’s Bill.

3. Mr Des McKibben (Assembly Research and Library Services): The presentation is based on research that was requested by the Committee on the alley-gating provision that is included in the Clean Neighbourhoods and Environment Bill and crosses over into the Department for Regional Development’s remit.

4. Alley-gating schemes are community driven. They are used to limit access to alleyways behind houses, usually to residents who hold keys. Although the process has existed for some time, particularly in Belfast, the Bill gives all councils statutory powers to erect alley gates where and when need has been identified. It is of particular interest to the Committee because an alley is a public right of way. Naturally, the erection of an alley gate would require that right of way to be restricted. The Bill gives power directly to councils to issue a gating order that eliminates the need to go through normal channels that are associated with getting a stopping-up order to extinguish the right of way.

5. As I said, alley-gating has been going on in Belfast for some time. That will give a clear idea of how those schemes work with regard to establishing need, the processes that are involved in getting them going, costs and funding. Alley-gating schemes incur various costs. Belfast City Council states that a gate for an average-sized alleyway costs around £3,000. The council explains that the cost is high due to the specification that is needed for gates to be certified as safe for their purpose. Other technical costs cover engineering, insurance and gate maintenance.

6. As I said, the process is community driven. It is initiated by residents. Belfast City Council provides an 11-step guide for residents who wish to avail themselves of alley-gating in their area. It includes extensive consultation with all those who will be affected by gates. The process can be laborious for residents. However, schemes have, undoubtedly, shown benefits. In a review of alley-gating schemes that was carried out by Belfast City Council and the Belfast Community Safety Partnership, 73% of residents reported a positive impact on litter reduction and dumping, while 87% believed that gates had a positive impact on crime reduction.

7. Similar benefits have been experienced elsewhere. In Salford, England, alley-gating has had a dramatic effect and has significantly reduced burglaries by up to 50%. The alley-gating process in Salford is very similar, with the emphasis on consultation with all parties.

8. It is down to residents to pull together money for alley-gating costs. However, Belfast City Council notes that if communities follow its manual guidelines and install gates to the council’s specifications, they can apply to assume the long-term responsibility for maintenance and insurance. In comparison, Salford City Council does not offer that facility but does offer grants in the region of £1,000 towards technical and planning costs at the start. I welcome any questions.

9. The Chairperson: Thank you very much.

10. Mr Gerry Anketell (Department for Regional Development): I will start by introducing the team. I am accompanied by Robert Gray, who is the Department of the Environment’s Bill team leader for the Clean Neighbourhoods and Environment Bill; Chris Galbraith from Roads Service’s parking enforcement unit; and Brian O’Neil from Roads Service network services. Brian has some expertise in alley-gating as it currently stands. It might be useful for Robert to give an overview of the Bill and a little background on the consultation and reactions to the Bill.

11. Mr Robert Gray (Department of the Environment): The Bill is largely based on legislation that is already in force in England and Wales, namely the Clean Neighbourhoods and Environment Act 2005. Since that Act was introduced, the Department has received ongoing requests from MLAs, MPs, district councils and organisations such as Tidy Northern Ireland for similar legislation to be introduced here. Therefore, last year, Minister Poots decided to start this process.

12. We completed a consultation exercise on the Bill at the end of April this year. The Bill received its introduction in the Assembly in June, its Second Stage at the end of June and is now with the Environment Committee. Basically, the Bill tries to strengthen the laws to enable district councils to deal more effectively with a wide range of low-level environmental crime issues. Therefore, each isolated issue in the Bill, such as dog control orders, graffiti or litter, may not be viewed as major issues. However, as a complete package, the Bill is substantial and important legislation and means something to people on the street who recognise that those issues degrade their local neighbourhoods.

13. The Bill is designed to help district councils to deal with those issues more effectively. It deals with litter, fly-posting and graffiti, dog control issues, noise nuisance issues, statutory nuisance issues, gating orders, nuisance parking and abandoned vehicles, and even abandoned shopping trolleys. It also gives councils a greater remit to issue fixed penalty notices as an alternative to prosecution. Will I say any more about that?

14. The Chairperson: The only aspect that this Committee deals with is alley-gating. We need to be careful to not transgress into another Committee’s business. However, as you say, the complete package is extremely important.

15. Mr Anketell: The alley-gating aspect would result in district councils becoming responsible for making gating orders to facilitate alley-gating. The Department for Regional Development’s role in the alley-gating process is largely to make statutory rules to facilitate that process.

16. The Chairperson: Mr Boylan is the Chairperson of the Committee for the Environment, so we have to be sensitive.

17. Mr Boylan: Nuisance parking is an issue. In the Chamber, I raised the issue of cars parking on the footpath. It is a difficult issue, but it is something that we need to look at when discussing the Bill, if possible. Have you given the matter any consideration? The removal of nuisance vehicles is a matter for councils already, and perhaps we could strengthen those powers.

18. The Chairperson: That is a matter for the Department of the Environment (DOE).

19. Mr Boylan: I know that it is a matter for the DOE. However, DRD also has responsibility for roads issues. We cannot just shy away and say that it is a matter for the DOE or DRD. If there is an opportunity for something to be included in the Bill, I would like it to be given some consideration. It is a nuisance issue. There is no point in putting in new footpaths, many of which are nearly 3 metres wide, if we give people license to drive lorries and cars on them.

20. The Chairperson: It is not really an issue for us.

21. Mr Boylan: It is partly a DOE and partly a DRD matter because of the footpath issue.

22. Ms McIlveen: The information provided states that a gating order restricts a public right of way. The research briefing relating to Cardiff states that gating requires a stopping-up order, which permanently extinguishes a right of way. What is the difference here?

23. Mr Anketell: The difference here is that the proposal would be to restrict access. The gating of alleys would come into effect at different times or different periods. For example, the Bill provides that, in certain circumstances, gating should not take place if the road in question is the sole means of access to premises or dwellings or is used for business premises or leisure centres and the like, in which case the gating would take place only at times when businesses or leisure facilities would not be affected. The gating orders have the effect of restricting access to the road in question. The road does not become abandoned. If we were to adopt a process of extinguishing the right of way, Roads Service would abandon the road and would no longer be responsible for its maintenance. The gating orders in the Bill would restrict access, rather than extinguish the right of way.

24. Ms McIlveen: I can see a proliferation of requests coming through for that, even from a constituency point of view. What restrictions will be put in place or what criteria will have to be met in order for gating orders to come into force?

25. Mr Anketell: The working out of the detail will take place through non-statutory guidance. It will be prepared jointly by DOE and DRD, and it will be issued for consultation to the councils. The criteria already established for alley-gating is likely to form part of the backbone of the future processes.

26. Ms McIlveen: So we just work to progress it?

27. The Chairperson: A lot of those back entries are unadopted and are not maintained by DRD. DRD says that they are unadopted. People who have tried to have alley-gating carried out have run into that problem.

28. Mr Anketell: DRD has no interest or involvement in those unadopted alleys.

29. The Chairperson: So this legislation would not apply to those alleys?

30. Mr Anketell: No.

31. Mr McDevitt: I welcome the alley-gating scheme. The experience of it in Belfast and in urban areas has been positive. I understand that the Belfast scheme is funded by the council and that NIO money — now Department of Justice money — goes into it. Does any DRD money go into it?

32. Mr Anketell: No.

33. Mr McDevitt: Will the Bill change that? Will it place a duty on DRD to become a contributor to schemes, or will the same cocktail of funding be envisaged?

34. Mr Anketell: There is no provision for funding in the Bill.

35. Mr Leonard: The paper says that district councils, to get through any administrative orders, will be subject to the approval of the Department for Regional Development. When going through the process at ground level, time is of the essence in a lot of those situations. Is there any way that we can include an optimum recommended time for the process to be completed and approval given?

36. Mr Anketell: Certain aspects of the process are likely to involve a time element, such as the publication of notice of intention to make a gating order and to allow responses to be received. However, the fact that gating orders would be made by an administrative order, rather than by statutory rule as is currently the case, will improve the amount of time that elapses in making a gating order.

37. Mr Leonard: But you would not envisage putting an exact time in which that process has to be completed?

38. Mr Anketell: No; not as things stand.

39. Mr Leonard: Is there not some way to get round the issue of unadopted alleys, because it does come up?

40. The Chairperson: Financially, the Department will not touch it.

41. Mr Anketell: The Department has no responsibility for back alleys that are not roads.

42. Mr Leonard: Yes, but it is a matter of responsibility versus dealing with a problem for people in a community. Can we not go over to the people’s side and find ways to get round that?

43. Mr Anketell: I can only repeat that DRD has no involvement because it has no interest in the premises running along the back alley or the alley itself. It is not responsible for the maintenance of the alley, and, therefore, it would be up to the owner of the premises and the owner of the alley to reach an agreement.

44. Mr Leonard: Therefore, there is no way that a council will give an administrative order for such a matter?

45. Mr Anketell: No. At present, the Bill relates to only roads.

46. Mr Boylan: Obviously, DRD’s role in the Bill is very narrowly featured. Ninety per cent of it will apply to Belfast, so the rest of us do not have to worry. [Laughter.] I know that the Chairperson said that it is outside our remit, but can you just comment about parking on footpaths? It is a nuisance, and I would like a comment for reference, for the Hansard report at least.

47. Mr Gray: The Bill is quite specific in how it deals with nuisance parking. It focuses on businesses that use the street or road to park vehicles for sale or businesses that repair vehicles, thereby causing oil leaks and so on, on the road. Therefore, the Bill is quite specific in dealing with nuisance parking and is restricted to those areas. District council officers will enforce that legislation.

48. Mr Boylan: Therefore, it does not apply at all to people who stop people with disabilities using the footpath, and we are not going to look at it. Is that what you are saying to me, Robert? That is an issue, let us be honest.

49. Mr Gray: I understand that parking a car on a footpath is in breach of parking legislation, which —

50. Mr Boylan: We see them every day of the week.

51. Mr Chris Galbraith (Department for Regional Development): May I give a summary of the situation in relation to parking enforcement on footways as it stands, just so that everyone is clear? There is no specific law to prevent vehicles from parking on footways, but there are circumstances in which they may be committing an offence by parking on a footway. It is an offence under article 30 of the Road Traffic (Northern Ireland) Order 1995 to park a heavy commercial vehicle on the footway. That is an offence that the PSNI can enforce. They can also enforce legislation when a vehicle is parked on a footway and causes an obstruction or a danger to other road users. If a vehicle is parked on a footway in contravention of a waiting restriction, DRD can enforce that.

52. Mr Boylan: I dare say that Mr Kinahan and I will have to bring that through the Environment Committee, but thank you.

53. Mr Kinahan: At airports, one finds a mix of roads, which start off as a Roads Service matter and then move into being owned by the airport, and there is nuisance parking. Has anyone sat down and discussed with those authorities how we link that up? Do you understand where I am coming from?

54. Mr Anketell: Yes, there is a —

55. The Chairperson: This is a briefing around alley-gating not nuisance parking.

56. Mr Anketell: Chairperson, I can respond to the question if you wish.

57. The Chairperson: Go ahead. [Laughter.] These people are members of the Environment Committee. [Laughter.]

58. Mr Anketell: There is a similar theme in terms of DRD responsibility there, because it depends on whether your interest lies in roads that are maintained by DRD or which form part of the airport estate, and would therefore become the responsibility of the airport authority. In certain cases, airport authorities have powers to make by-laws, which may or may not cover the parking of vehicles. If they are public roads, and there are parking restrictions, the parking enforcement unit would certainly aim to enforce those restrictions. However, on the airport authority’s roads, the responsibility lies with the airport constabulary.

59. The Chairperson: OK. Thank you very much.

30 September 2010

Members present for all or part of the proceedings:

Mr Cathal Boylan (Chairperson)
Mr Patsy McGlone (Deputy Chairperson)
Mr Roy Beggs
Mr John Dallat
Mr Danny Kinahan
Mr Peter Weir
Mr Brian Wilson

Witnesses:

60. The Chairperson (Mr Boylan): I welcome Suzie Cave from the Assembly Research and Library Service.

61. Ms Suzie Cave (Assembly Research and Library Service): I shall give as brief a summary of the research paper as possible. The paper looks at the Clean Neighbourhoods and Environment Bill by comparing it with legislation and similar provisions in other jurisdictions, such as England, Wales and the Republic of Ireland. It also looks at possible areas of contention in relation to the responses to the consultation exercise. Finally, it considers possible lessons from the implementation of the Clean Neighbourhoods and Environment Act 2005 in England and Wales.

62. The aim of the Northern Ireland Bill is to give district councils a range of powers to assist them in managing their local environments efficiently and effectively by introducing tougher, clearer and more flexible powers to facilitate district councils in dealing with irresponsible individuals and specific nuisances.

63. The first part of the paper looks at comparisons with other jurisdictions, which can be seen in the table that starts on page 9, and I will give a brief overview. Similar legislation exists in the Clean Neighbourhoods and Environment Act 2005 in England and Wales in relation to alley-gating; vehicles, by making it an offence to offer for sale two or more vehicles or to repair a vehicle on the road as part of a business — the 2005 Act allows for the immediate removal by local authorities of abandoned cars; litter, with respect to the dropping of litter in lakes and waterways and the issuing of litter clearing notices and litter control notices to businesses; fly-posting and graffiti, in relation to removal notices and the selling of spray paints to minors; controls on dogs with dog control orders; and noise from alarms and private and licensed premises.

64. In the Republic of Ireland, there is not a sole piece of legislation that is similar to the Northern Ireland Bill. However, similar provisions can be found in various pieces of legislation. The Protection of the Environment Act 2003 includes the issuing of fines for dog-related offences. The Control of Dogs Act, 1986 and the Control of Dogs (Amendment) Act, 1992 empower local government to make by-laws for the control of dogs. The Litter Pollution Act, 1997 and the Criminal Damage Act, 1991 deal with graffiti and defacement. The Litter Pollution Act, 1997, as amended by the Waste Management (Amendment) Act, 2001, and the Protection of the Environment Act 2003 deal with litter and fly-tipping, whereby the throwing of litter can be subject to an on-the-spot fine of €150 and a fine of €3,000 on conviction in the District Court. The Waste Management Act, 1996 and the Road Traffic (Removal, Storage and Disposal of Vehicles) Regulations, 1983 deal with abandoned vehicles and allow for unlawfully parked cars to be removed. According to the Oireachtas, there is no similar legislation in the Republic of Ireland in relation to alley-gating orders.

65. The next section of the paper looks at some contentious areas of the Bill with regard to the responses from the consultation exercise. Some of those include issues that relate to a tight legislative framework. The Department states that the Northern Ireland Bill in on a tight legislative timetable and that it may not be possible to bring forward additional provisions. The concern is that it would delay the Bill’s progress through the Assembly and prevent it becoming law before dissolution. Many of the responses from stakeholders requested further guidance on issues that they consider to be not clearly defined in the Bill. In some cases, the Department’s response to suggestions made has been that greater detail will be provided in forthcoming subordinate legislation and guidance. That could also result in delays down the line due to the need for consultation on so many pieces of subordinate legislation.

66. That can be seen in greater detail in the table that starts on page 18 of the paper, which highlights that roughly 14 areas mentioned by respondents to the consultation will be dealt with at a later stage through guidance, subordinate legislation and regulations, subject to a consultation exercise in due course. Roughly 11 proposals were made by respondents who were told that, although their proposal was significant, it would require detailed consideration and amendment to the Bill and that, given the tight legislative timetable, it was not possible to bring forward significant new provision at this point. The matter will be clarified through guidance or regulations, subject to consultation at a later date, thereby making the task of commenting on the detail of the Bill at this stage all the more difficult.

67. In relation to the partial regulatory impact, the Department is of the view that:

“taken as a whole, the proposals would be cost-neutral to district councils and could lead to overall savings in district council costs through increased efficiency and effective, well-publicised enforcement."

68. Yet respondents to the consultation expressed general concerns about the perceived cost implications. The Department remains of the view that, having regard to the full regulatory impact assessment on the corresponding Clean Neighbourhoods and Environment Act 2005 in England and Wales, the Bill, taken as a whole, will be cost-neutral to district councils. However, the cost implications will not be fully understood until the Department draws up a full regulatory impact assessment in relation to Northern Ireland’s circumstances.

69. Concerns were expressed about equality of opportunity. Several responses to the consultation exercise from children’s organisations disagreed with the Department’s view that the provisions in the Bill do not impact on equality of opportunity. Concerns were expressed about restrictions on children’s movement with regard to gating orders, the possibility of issuing fixed penalty notices to children, and the impact of banning the sale of spray paint to children under the age of 16. There were also concerns about the effect of gating orders on the needs of those who are disabled, the consultation process itself and the absence of a formal policy development phase prior to the drawing up of the Bill.

70. It is worth noting that the Department has stated in response that it will take a different approach to fixed penalty notices for children and will develop detailed guidance on the issue, which will be subject to further consultation. The Department finalises its response by stating that it does not accept that the Bill has a significant negative impact on equality of opportunity on any of the groups specified in section 75 of the Northern Ireland Act 1998. Unfortunately, until further guidance is consulted on, this issue may remain inconclusive.

71. The main concerns expressed about the proposed provisions on gating orders were about the funding of the process. According to Belfast City Council, under its alley-gating scheme, an average-sized alleyway gate costs around £3,000. The council explains that the cost is high due to the specifications needed for the gates to be certified as safe and fit for purpose. In its response, the Department for Regional Development (DRD) states that it does not have any budgetary allocation for alley-gating schemes. According to DRD, in 2002, the Minister at the time announced that it would be for the local community to obtain funding before such a scheme would advance.

72. During discussion of the Northern Ireland Bill by the Committee for Regional Development in September 2010, the fact that unadopted back alleys are not covered by the legislation was brought up. DRD explained that unadopted alleys are not covered by the legislation, as DRD is not responsible for back alleys that are not roads. In those circumstances, it is up to the owner of the premises running along the back of an alley and the owner of the alley to reach agreement.

73. With regard to graffiti and fly-posting, it is worth noting that a number of respondents suggested that district councils should be given responsibility for taking prosecutions in respect of fly-posting offences. The Department agreed with that and said that it will include an amendment to the Bill during its progress through the Assembly to ensure that Planning Service powers to prosecute, both against the perpetrators and the beneficiaries, are made available to district councils.

74. Northern Ireland Environmental Link highlights that the Northern Ireland Bill, unlike the 2005 Act in England and Wales, does not allow for the use of anti-social behaviour orders (ASBOs). ASBOs have been used in England under the 2005 Act, which allows strategies such as ASBOs to be used against acts of antisocial and other behaviour that is adversely affecting the local environment. An example of the successful use of ASBOs comes from Camden, which became fly-posting free due to an ASBO conviction against the area’s main perpetrator, Tim Horrox, managing director of Diabolical Liberties, which is considered to be the UK’s largest fly-posting firm. He was ordered to pay Camden Council £46,000 in court costs.

75. With regard to provisions for the control of dogs, the Kennel Club is concerned that provisions unfairly penalise responsible dog owners and could lead to a major reduction in public access for dog owners. Its chief concern is the lack of a dog control order to require an owner to put his or her dog on a lead. In its opinion, that approach would allow those with control of their dogs the freedom to enjoy off-lead access, while ensuring that local authorities have the powers to deal with irresponsible owners. According to the Kennel Club, the 2005 Act in England and Wales already has provision for that in operation, and it states that that provision is one of the most sensible aspects of the Clean Neighbourhoods and Environment Act in England and Wales.

76. Some respondents wish to retain the power to make by-laws in relation to dogs. The Department advises that the current system for making by-laws is very time consuming and unwieldy, and that the dog control order system will be more streamlined and easier for councils to operate. That area will need to be reviewed in due course, as it is not possible to assume how the new system will operate at this stage.

77. On the subject of vehicles, the PSNI suggested a reduction in the period of time before a vehicle can be disposed of under articles 51 and 52 of the Road Traffic Regulation (Northern Ireland) Order 1997 from 21 days to seven days. The Department agreed with that and stated that new provisions will be included in the Bill to allow for the reduction of the period of time by regulations. That suggests that, although the period will be reduced, the amount of reduction is not certain until a consultation exercise has been completed on the proposed regulations.

78. During a briefing from DRD to the Committee for Regional Development, issues were discussed in relation to nuisance parking. As it stands, the Bill focuses on businesses that use the street or road to park vehicles for sale or businesses that repair vehicles causing oil leaks on the road. Members commented on the restriction of the Bill to those areas and suggested the need to include provisions to deal with parking on footpaths, which can obstruct their use, causing particular nuisance to those with disabilities.

79. According to DRD, there is currently no specific law to prevent vehicles from parking on footways, but under certain circumstances it does constitute an offence. For example, article 30 of the Road Traffic (Northern Ireland) Order 1995 makes it an offence to park a heavy commercial vehicle on the footway. The PSNI can enforce legislation when a vehicle is parked on a footway and causes an obstruction or a danger to other road users under article 88 of the Roads (Northern Ireland) Order 1993. However, that can be enforced only if the owner is present at the time, and the police do not have the powers to take note of the licence to follow up the case should the owner not be present.

80. One of the aims of the Northern Ireland Bill is to bring Northern Ireland up to date with legislation in England and Wales, yet there are provisions in the 2005 Act that are not included in the Bill. Those include provisions that deal with statutory nuisances such as artificial lighting, for example, from domestic and commercial security lighting, sports facilities, domestic decorative lighting, laser shows, etc; and insects coming from all premises other than domestic, to include poultry houses or farms, sewage treatment works, etc.

81. Respondents requested that guidance should be issued in respect of the new noise and statutory nuisance regime in England and Wales. Production of guidance in relation to that will have to take account of the above differences in provisions between the Northern Ireland Bill and the 2005 Act for England and Wales.

82. The final part of the paper from page 26 considers possible lessons from the operation of the 2005 Act in England and Wales. One of the concerns expressed by Keep Britain Tidy relates to the utilisation of powers. There are still questions as to whether local authorities are fully utilising those new powers, and it is unclear whether public space management is a strategic consideration by the majority of local authorities.

83. Keep Britain Tidy has also suggested that Government should review the legislative framework surrounding littering from vehicles and the potential for introducing a penalty point on driving licences for littering offences. The current Act does not allow the owner of the vehicle to be issued with a fixed penalty notice when the identity of the person who is littering from a vehicle is unclear.

84. The long-term impact of the indoor smoking ban is still to be determined, but Keep Britain Tidy states that circumstantial evidence from local authorities suggests that smoking-related litter problems have increased around pubs, clubs and restaurants. In places such as Australia, Scotland, Ireland and America, where indoor no-smoking policies have been longer in existence, there are reports of increased cigarette litter, according to a report by R W Beck for Keep America Tidy in 2007.

85. According to the ‘Chewing Gum Position Paper’ by the Keep Wales Tidy campaign, the 2005 Act does not put any requirements on local authorities to clean impacted gum or stains. The paper also cites that a Keep Wales Tidy public opinion survey in the summer of 2003 showed that chewing gum staining on pavements was the fourth-worst local environmental quality factor in Wales out of 14 options. Only litter, dog fouling and fly-tipping were more reviled by the Welsh public.

86. Before the 2005 Act had passed through Parliament, the introduction of a gum levy of 1p on each pack of chewing gum, which would be fed back to local authorities, was suggested. That was based on evidence from a survey of the 33 London boroughs by the London Assembly Liberal Democrats group, which stated that 81% of people believe that chewing gum companies should concentrate on developing biodegradable gum and 53% did not believe that fines alone would reduce the amount of chewing gum discarded. It also stated that London Underground spent £2 million a year and councils £2.3 million a year on cleaning up gum.

87. Dog fouling remains a problem as regards the way in which it is disposed of. According to the latest local environmental quality survey of England report, there is an increase in the amount of bagged dog fouling, which suggests that the provision of facilities and education for the appropriate disposal of bagged dog fouling is important.

88. A report by R W Beck for Keep America Beautiful investigated the issue of deliberate and accidental litter. Accidental litter is material that is deposited unintentionally through poor management practices, such as items that fly out of open bed trucks. Beck points out that a review of 31 American litter surveys from 1986 found that 65% of litter was deliberate and 36% was unintentional. Therefore, the paper argues that a drop in overall littering in the USA could be masking a suspected increase in unintentional litter over the past 15 years.

89. The increase in segmented waste collection through separate waste and recycling collection may also have had an impact on litter levels over the past 20 years. Beck argues that recycling programmes, which proliferated between 1988 and 1994 in the USA, have created twice the number of vehicles collecting materials from residential areas. In response to that, Keep Britain Tidy has suggested that, while there may be difficulties in identifying accidental and deliberate litter:

“it would seem prudent to utilise this approach in future surveys of England to investigate the impact of the increase in household recycling schemes on litter levels in England."

90. The Chairperson: Thank you very much, Suzie. I think that you drew the short straw. That provides clarification of the Bill. Do members have any comments to make? We will be receiving a briefing from the Department.

91. Mr Kinahan: It was very thorough.

92. Mr Beggs: I want to make one point. I am incensed by the comment that is reported —

93. The Chairperson: Be careful, because the comment is simply reported by the researcher.

94. Mr Beggs: I am not incensed with the researcher but with the comment in the consultation that some children’s organisations are opposing gating orders. From my constituency work, I am aware of single parents who have been literally forced out of their houses due to antisocial activity. The only way that those people can reclaim their neighbourhoods is through something such as a gating order being applied with the support of the community. People who think that this is restricted to children must have no idea as to the conditions that others must live in, in some situations.

95. Mr Weir: I seek some clarification on that point —

96. The Chairperson: Be very careful. It is only the researcher. Now, settle down.

97. Mr Weir: I share Mr Beggs’s concerns. Where did the complaints about the impact on children come from? You mentioned children’s organisations. Was that the Northern Ireland Commissioner for Children and Young People (NICCY) or charities?

98. Ms Cave: There were four organisations.

99. The Committee Clerk: The Children’s Law Centre, PlayBoard —

100. The Chairperson: Include Youth. The Committee will receive briefings on this over the next couple of weeks, so members will have an opportunity —

101. Mr Weir: I was just looking for clarification on where the responses came from.

102. Ms Cave: An Internet link at the bottom of the research paper will take you directly to the responses.

103. Mr Weir: Thanks, that is very useful.

104. Mr Beggs: To make it easier for us, perhaps you could e-mail the response paper.

105. The Chairperson: Thank you very much. The members behaved themselves OK.

30 September 2010

Members present for all or part of the proceedings:

Mr Cathal Boylan (Chairperson)
Mr Patsy McGlone (Deputy Chairperson)
Mr Roy Beggs
Mr Trevor Clarke
Mr John Dallat
Mr Danny Kinahan
Mr Peter Weir
Mr Brian Wilson

Witnesses:

106. The Chairperson (Mr Boylan): I welcome Denis McMahon and Robert Gray.

107. Mr Denis McMahon (Department of the Environment): We have another colleague joining us. I thank the Committee for the opportunity to speak about the Bill. We have been receiving a lot of feedback, and it was interesting to hear the research briefing refer to some of the responses, which we have also been picking up on as we have been going through the process.

108. The Bill is a high priority for the Minister. One issue about detail is that, in order to move as quickly as possible, we are doing as much as possible in parallel. Therefore, we are trying to move the primary legislation and the subordinate legislation at the same time. However, we cannot go out to consultation until we know exactly where we are with the primary legislation.

109. With your permission, Chair, Robert will take the Committee through the main sections of the Bill and give members a chance to raise issues.

110. Mr Robert Gray (Department of the Environment): As I am sure members are aware, this is a large and complex Bill. It has 76 clauses and four schedules, and it is intended to strengthen the powers of district councils to enable them to deal more effectively with a wide range of what we would call low-level environmental crime issues and, in so doing, to help to improve the quality of life for everyone in Northern Ireland.

111. I say that it is a complex Bill, because, although many of the issues dealt with by the Bill sound straightforward and non-technical, they are given effect by having to make detailed amendments to numerous pieces of existing law. To fully understand those parts of the Bill, it is necessary to have an understanding and sight of the law that is being amended. Other parts of the Bill are stand-alone provisions: for example, chapter 1 of Part 6 that deals with audible intruder alarms; Part 7 that deals with statutory nuisances; and Part 5 that deals with dogs. Those Parts do not amend existing law and are, perhaps, easier for the reader to follow.

112. Following on from some comments that were made earlier, I want to make the point that the Bill is, essentially, an important first step in the Department’s clean neighbourhoods agenda programme. Key interests, who will mainly be district councils, will welcome the fact that the Department intends to follow up the Bill with an extensive subordinate legislation programme, together with a series of supporting guidance documents that cover all the various issues dealt with in the Bill. That additional information will inform district councils about the new legislation in much greater detail. We have identified a need to produce 11 substantive sets of statutory rules when the Bill becomes law, together with two codes of practice and 14 separate guidance documents. The Department will have to consult on all that material in due course.

113. The Bill is divided into eight distinct Parts. I will briefly run through each Part’s main provisions. Part 1, which deals with gating orders, gives district councils new powers to deal with alleyways that are affected by antisocial behaviour. Part 2 concerns vehicles. It gives district councils the power to remove abandoned cars from streets immediately. It also creates two new offences to help district councils to deal with nuisance parking. Those apply when a business offers for sale two or more vehicles and has them parked on the street or road, or when a vehicle is being repaired on a road as part of a business.

114. Part 3 deals with litter. It makes a number of detailed amendments to the Litter (Northern Ireland) Order 1994. It amends the offence of dropping litter in a lake, pond or watercourse. It gives district councils new powers to issue litter clearing notices to require businesses and individuals to clear litter from their land. It strengthens the existing powers of district councils to require local businesses to help to clear up litter that they generate. It enables district councils to restrict the distribution of flyers, handouts and pamphlets — free literature that can end up as litter. That Part of the Bill also contains provisions to deal with abandoned shopping trolleys. It gives district councils the power to recover the cost of dealing with such trolleys from their owners.

115. Part 4 concerns graffiti and other defacement. It enables district councils to serve defacement removal notices that require the removal of graffiti and fly-posters. It gives district councils the power to tackle the sale of spray paints to children. It strengthens existing legislation to make it harder for the beneficiaries of fly-posting to evade prosecution.

116. Part 5 deals with dogs. The main point to make about Part 5 is that we are aiming to replace the existing dog by-laws system with a new simplified system that enables district councils to deal with fouling by dogs; to ban dogs from designated areas; to require that dogs be kept on a lead; and to restrict the number of dogs that can be walked by one person.

117. Part 6 deals with noise. It gives district councils powers to deal with burglar alarms and to impose fixed penalty fines on licensed premises that ignore warnings to reduce excessive noise. Generally, it creates greater flexibility in dealing with noise nuisance. Part 7 concerns statutory nuisances. Existing law on statutory nuisances is archaic. It is over 130 years old. The Bill restates and updates the law. It brings it into line with that which applies in England and Wales. Part 8 contains miscellaneous and supplementary provisions, the most important of which is that it increases the maximum fine and summary conviction that may be provided for in regulations that are made under pollution prevention and control provisions.

118. Throughout the Bill, much greater use is made of fixed penalty notices as an alternative to prosecution. That theme runs throughout the Bill. District councils are given the power to retain the money that they receive from fixed penalties. In most cases, they are given the flexibility to set their own rates, subject to upper and lower levels.

119. The future detailed clause-by-clause analysis of the Bill will give members the opportunity to explore the wide range of issues covered by the Bill in much more detail. We look forward to engaging with the Committee on those matters over the coming months.

120. The Chairperson: Thank you very much for your presentation. This Committee scrutinised the Bill that led to the Taxis Act 2008. The subsequent roll-out of all its subordinate legislation took a long time. Will that happen in this case? We do not want to get to a point where it takes two years to roll out the subordinate legislation for this Bill. With respect to the issue of dogs, it was commented that it takes time to make by-laws under the current system. Are we saying that this legislation will start to roll out fairly quickly? Are we using that as an example?

121. Mr Gray: As Denis said, we have been working on the subordinate legislation and guidance programme in parallel with taking this Bill forward. We have a team that is preparing draft documents. We cannot consult on those, because the Bill might change during the Committee process. However, we will have those documents ready to go to consultation as soon as possible after the Bill becomes law. There will not be a long, drawn-out period of two or three years for the roll-out, because we already have that work prepared.

122. The Chairperson: I will not mention cars, the use of cars, or cars on pavements. We are not getting into that. [Laughter.]

123. Will you expand a bit on the subject of children and fixed penalty notices, which was touched on in the briefing paper? What are the proposals?

124. Mr Gray: Our remit with this Bill was to bring Northern Ireland into line with improvements brought about in this type of legislation in England and Wales — the Clean Neighbourhoods and Environment Act 2005 and antisocial behaviour legislation. We will be bringing forward guidance on issuing fixed penalty notices to juveniles. That will make it very clear that councils need to think very carefully before issuing such notices to juveniles. A lot of issues have to be considered. That guidance will be subject to full consultation. The Bill is a skeleton, in a way, and a lot of it will be fleshed out. There will be specific guidance.

125. Mr McMahon: The paper also touched on the importance of common sense in the application of the legislation. I heard that said in the previous discussions. There are variations from council to council in how the previous legislation was applied and how effective it was, which shows that, if the right approach is taken, it can lead to the right results.

126. The Chairperson: I agree, and I hope that there is a common sense element to it all. However, that needs to be prepared now, as opposed to later on. I have another question, but Mr Weir wants to ask his.

127. Mr Weir: Gentlemen, thank you for your presentation. We all welcome the general thrust of the Clean Neighbourhoods and Environment Bill. However, there is a massive amount of meat in it. You have been working on it, and I am sure that you will acknowledge that it is important that we get the detail right.

128. I want to ask about two issues. First, this is meant to be cost neutral from a council’s point of view. On a range of issues such as fly-posting, you have mentioned that the cost of enforcement will be recouped through fixed penalty notices and so on. Where is the cost neutrality for councils in relation to alley-gating? What opportunity do councils have to recoup money from that? Will it not just be a drain on council resources?

129. Mr Gray: The first point that I need to make is that alley-gating is a Department for Regional Development (DRD) responsibility. We are carrying that provision in this Bill on behalf of DRD. As I understand it, an alley-gating scheme will be introduced in a particular area only after extensive consultation with the residents of that area. The introduction of an alley-gating scheme will reduce costs, as the problems that are caused in that alleyway by littering and so on will be reduced. It will be up to a council to decide whether it wants to bring forward an alley-gating scheme. In making that decision, the council will have to take into account the costs involved. That is one of the issues to be considered.

130. Mr Weir: I am somewhat sceptical about that. With respect, it sounds a bit as though DRD is asking you to take a teddy bear through customs. Clearly, there will be a small saving on littering costs. However, we heard in the research briefing that, according to Belfast City Council, gating is quite expensive. Although there may be social benefits to be had from alley-gating, there is no way that I can see councils recovering the costs. I appreciate what has been said about it being a matter for councils to decide in consultation with residents. However, I am concerned that an expectation will be created among residents that it is an instant solution to a range of things, which will then end up costing a large amount of money without any way of recouping the cost. That may be more of a comment than a question. I am cautious about the cost.

131. Secondly, anyone who has had experience of any issue involving dogs, through their council or elsewhere, will know the massive emotional problems involved. I know that the idea is to have a degree of read across with what exists in England. However, the Kennel Club believes that, although it could accept various elements, a slightly more nuanced approach may be needed for Northern Ireland. For example, the number of dogs that may be walked by one person is not so much of an issue in Northern Ireland. With regard to the changes to finesse the legislation that the Kennel Club has suggested, has the Department met representatives from the Kennel Club and considered changing what it has put forward to take account of the genuine points that have been made by responsible dog owners?

132. Mr Gray: The Kennel Club met the Minister and officials in the past few weeks. It was reassured by the fact that a lot of the detail concerning dog control orders will be subject to subordinate legislation and accompanying guidance. The Kennel Club was happy that it would have the opportunity to comment on that. It was almost coming to us a bit too soon, because the issues that concern the Kennel Club will be the issues for the subordinate legislation and the guidance. The guidance documents are likely to throw up more issues than the Bill, because they go into a lot of detail. Councils will have to decide on the number of dogs walked on a lead. They will take into account the benefit of the experience in their own areas and may decide on two, three or four dogs on a lead. It will all be subject to local considerations by the councils.

133. Mr Beggs: I welcome the thrust of the Bill. We all have to look at the details. Nevertheless, it looks quite positive to date.

134. My question relates to the wide-ranging additional powers and responsibilities that will fall on local government, and I declare an interest as a councillor. What has been the experience elsewhere in adopting those powers? The additional responsibility could incur additional man-hours and costs. At the same time, however, there will be a much more efficient means of dealing with the situation, particularly through the method of issuing fixed penalties rather than going straight to court. I was involved in a case that included eight police officers, two council officers and a barrister, all of whom were paid for a full day in court, only to have to come back a few months later to do the same at the Court of Appeal. Then, the defendant, who, of course, had legal aid, dismissed his barristers, so we all had to come back a third time a few months later — all at public expense. That was a blatant case in which some 90 vehicles had been disposed of in a public area. It is essential that there is a means more efficient than anti-social behaviour orders (ASBOs) to deal with problems such as that.

135. What has been the experience elsewhere? Is it generally considered to be cost neutral or are there additional burdens on councils? It is essential that we take this route to enable communities and environments to be improved.

136. Mr Gray: We have found it difficult to obtain evidence of experience elsewhere. That is probably because there are so many local authorities in England and Wales to which those powers have been given. There is no central source of evidence. In the Cleanliness National Indicator, the DEFRA Minister stated that, some five years after the introduction of the Clean Neighbourhoods and Environment Act 2005, there have been significant improvements in dealing with litter and so on. However, there has been nothing more than that. There is evidence of an increase in the number of fixed penalty notices issued by local authorities in England and Wales following the legislation’s introduction. Apart from that, no study or evaluation is available on the effectiveness of the Clean Neighbourhoods and Environment Act 2005. It has not happened yet.

137. Mr Beggs: Do you believe that issues are tackled at an earlier stage because of fixed penalty notices, which are a lower-level deterrent, rather than having to wait until a large amount of evidence has been gathered in order to go to court? Can problems be nipped in the bud earlier?

138. Mr McMahon: There is no doubt that there is variation between councils in England in respect of fixed penalty notices. As recently as about three weeks ago, a programme was shown on UTV that looked at that issue in England. I am struggling to remember its title. A range of councils were applying fixed penalty notices quite vigorously. Anecdotally, they said that those powers were a useful way to ensure that the problem was being addressed. Others found it more difficult and said that it was too costly. There is tremendous variation.

139. I return to Robert’s point. There is not a straightforward, objective, central database that shows how many orders have been applied, how much that cost, and the quantified benefits. Unfortunately, we do not have that.

140. Mr Gray: It is up to the various councils to decide whether they want to use those powers. We are not imposing a duty. We are imposing discretionary powers on councils for them to choose to use as they see fit based on the circumstances in their areas.

141. The Chairperson: Obviously, we encourage all of that. However, you do not want those powers to be misused. If fixed penalties are issued, it must be for good reason. We need to try to find out some information on how other councils are operating.

142. Mr Kinahan: Thank you for your presentation. The point has been made that when it comes to noise nuisance, the Bill is aimed at urban, rather than rural, areas. Are you looking at any way of dealing with rural noise? Will any of the guidance explain how nuisance noise is measured and clarify how to deal with it?

143. Mr Jackie Lambe (Department of the Environment): The new provisions apply to noise across the board. Noise that is created in a rural area will be treated in exactly the same way as noise that is created in an urban area. There will be no reference in the legislation to noise from specific locations other than from certain premises or in the streets.

144. Mr Kinahan: How will noise be measured? There are problems with regard to measurement. Will any guidance be provided on that?

145. Mr Gray: The Department has just made legislation on permitted noise levels.

146. Mr Lambe: The specific permitted levels of noise at night are governed by the Noise Act 1996. The Department, with effect from 8 July this year, significantly reduced the thresholds below those that exist in England and Wales to address concerns put to us by Belfast City Council. I think that we are now on a par with the noise levels that apply in Scotland.

147. Mr Dallat: My teddy bear is in the roof space and is staying there, unless things change badly.

148. Mr Weir: Did you get it through customs?

149. The Chairperson: It all depends what is in the teddy bear.

150. Mr Dallat: I have two questions. Alley-gating is already done successfully in certain places in the North. However, a disabled person in Coleraine brought a case to the Equality Commission, and there was an out-of-court settlement. Is there provision in the Bill to ensure that people with disabilities are not restricted unnecessarily?

151. Mr Gray: DRD has advised us that, if there are proposals for an alley-gating scheme to be introduced in an area, they must undergo a thorough section 75 equality screening exercise, which would cover that issue.

152. Mr Dallat: My second question is about fly-posting, which is epidemic. Does the Bill clearly identify the culprit? Is it the organiser or the premises in which the event takes place?

153. Mr Gray: The Bill tries to tackle all those issues. It enables a council to issue an on-the-spot fine to the person affixing the poster if they are caught in the act.

154. Mr Dallat: That is not easy at 2.00 am.

155. Mr Gray: It is also bringing forward a provision that makes it much more difficult for the beneficiary of the fly-posting to escape prosecution. In response to the negative feedback that the Department received about Part 4 of the Bill on graffiti and fly-posting, we are looking at ways to strengthen those provisions even further to help district councils to take forward prosecutions. We are undertaking that work at the moment and will bring it to the Committee in due course.

156. Mr Dallat: That is welcome news. That aspect has to be crystal clear if the legislation is to be worth the paper that it is printed on. I know of no area that has not been systematically destroyed. It is soul destroying for local councils to clear up bus shelters and other places only to find posters back up the next day.

157. The Chairperson: I take Mr Dallat’s valid point. At the opposite end, however, we have to look at small business advertising.

158. Mr Dallat: That is a valid point, and I would certainly not want to cease small business printing. Does the Bill provide for posters that are, say, put on sticks and stuck in the ground, and which are very much temporary, rather than pasted on to public property?

159. Mr Gray: It provides for placards or posters. It depends whether they are viewed as defacing the amenity of the area and so on. It would depend on the circumstances of each case.

160. Mr Dallat: I am glad that the Chairperson brought up that point, because the Planning Service’s enforcement division is going around like sniffer dogs, up and down lanes trying to find those things, and it certainly does not deliver a balanced view of what is genuine promotion of a small business and what is vandalism, really.

161. Mr Gray: We are primarily interested in fly-posters rather than the bigger sort of advertisement, which is a matter for the Planning Service to deal with under existing law.

162. Mr B Wilson: I declare an interest as a local councillor. The Bill is obviously very welcome, because we have been waiting for a lot of the things in it for years. One issue that has caused considerable concern over the past few years is that of houses — for example, in a housing estate — that have been allowed to become derelict. Such houses attract a lot of graffiti and have grass overgrowing. People start dumping stuff in the garden and all that sort of thing. The consultation summary refers to:

“powers for district councils to deal with any element of land/premises considered to be detrimental of the amenity of an area".

Our environmental health officers have tried in many ways to get something done on those issues, but we cannot do so with the present legislation. Is there anything in the proposed legislation that will help us?

163. Mr Gray: Yes, there is. The Bill deals with litter in the gardens of unoccupied houses. Neglected areas of land, such as gardens of unoccupied houses, can attract a lot of litter. Under the present legislation, district councils can designate areas of land as litter control areas, and the occupier of certain types of land within a litter control area has a duty to clear the land of litter. If that person fails to do so, the council has to serve a litter abatement notice requiring the occupier to clear the land. That current system is complicated, particularly in the circumstances that you just described, and we understand that little use is made of it because it is not very effective. The Bill replaces that system with a much simpler one. District councils will be given the power to issue those notices, and they will require the occupier or, if there is none, the owner to clear the land of litter within a notice period of not less than 28 days. If the person fails to do so, it will be a criminal offence, and councils will then have the power to issue a fixed penalty notice in lieu of prosecution. Where the person fails to remove the litter, the council can do so and then recover the cost.

164. Mr B Wilson: Is there anything that we can do to stop somebody letting a house become derelict and fall apart? I know of a house that fell apart over 20 years, and the next door neighbour could do absolutely nothing about it.

165. Mr Lambe: I would have thought that there were powers under existing environmental health legislation.

166. Mr B Wilson: Our environmental health officers took the person involved to court two or three times, and they could do nothing.

167. Mr Gray: There is a statutory nuisance …

[The next five minutes of proceedings were not recorded due to technical difficulties.]

168. Mr Gray: There are no powers of prosecution in the Bill. As I said, the aim of the defacement removal notices is to encourage the owners of what is called in the Bill “street furniture", which includes walls, buildings and so on, to keep the streets free from litter and defacement. That is what we are trying to do.

[The next minute of proceedings was not recorded due to technical difficulties.]

169. Mr McGlone: … I am not saying that that person is entirely innocent in every case. However, it is usually someone who does not have a clue who is doing the defacement. I am sure that you could take me to more than enough locations throughout Belfast where that is being done. Although prosecution powers are not there, you do have enabling powers for the council to go ahead and do it and then to slap the person with the bill for that.

170. Mr Gray: That is the sort of issue that will need to be fleshed out in the guidance on how the system of defacement removal notices will operate, which will guide district councils on such issues. The guidance will be subject to full consultation.

171. Mr McMahon: That guidance will need to reflect the key principle that it is about ensuring that the person who is responsible pays and not [Inaudible.].

172. Mr Beggs: Does the Bill enable the innocent party to recoup the cost of removal from those who have benefitted from the advertising? It is very difficult to get evidence of who puts up a poster in the middle of the night, because all that remains is an advertisement for a disco or a dance. The premises and the DJ or group who organise the event will benefit, but, presently, it is very difficult to take civil action against them. Therefore, does the Bill allow for the cost of removing fly-posting to be passed on to the beneficiaries of the advertising? That would be a simpler route to recouping costs.

173. Mr Gray: I will come back to you on that one in writing. It is the first question that I have not been able to answer. There were so many issues, but I will check on that one and get back to you.

174. The Chairperson: Thank you very much, gentlemen. No doubt we will see you again in the coming months.

7 October 2010

Members present for all or part of the proceedings:

Mr Cathal Boylan (Chairperson)
Mr Patsy McGlone (Deputy Chairperson)
Mr Roy Beggs
Mr Thomas Buchanan
Mr Willie Clarke
Mr John Dallat
Mr Peter Weir
Mr Brian Wilson

Witnesses:

175. The Chairperson: We will now receive a briefing on the Clean Neighbourhoods and Environment Bill from Pubs of Ulster. I welcome Colin Neill, the chief executive of Pubs of Ulster. Colin will make his presentation before I open it up to members for questions.

176. Mr Colin Neill (Pubs of Ulster): Thank you very much, Chairperson. I thank the Committee for the opportunity to speak about the Bill. We recently rebranded from the Federation of the Retail Licensed Trade Northern Ireland, and that is one reason why we changed our name to Pubs of Ulster. For those members who do not know who we are, we have been in existence since 1872 and represent the pub industry in the Province. The industry employs 35,000 people and contributes £1 billion to the Northern Ireland economy each year. Although not many people know it, ours is the biggest grossing sector for tourism, with 80% of tourists visiting a pub and 70% of tourists eating in pubs. Our sector puts in around 33% of the lift in tourism, which is more than from bed nights.

177. The pub industry is not the major retailer of alcohol, as some may think. We sell around 25% of the alcohol in the Province, and our industry is now based on a very diverse product. For example, the third largest coffee chain in the UK is a pub group. Our industry has diversified greatly. Live entertainment is a big element of what we have to offer, particularly in a Northern Ireland context, where live entertainment is very much part of our culture. In the industry, we are not only the only alcohol retailer that pays rates with a built-in social levy but the only commercial operation to do so. Historically, we have a 30% higher property rate based on our turnover, because of the social impact of alcohol.

178. We fully support the Clean Neighbourhoods and Environment Bill, and are keen to see it rolled out without any delay. We have concerns about two elements that will have an economic impact on small businesses, not just our sector. I apologise: Andrew Irvine from the Belfast City Centre Management Company had planned to be here with me today. It supports our view on fly-posting, as it is referred to in the Bill, or the distribution of printed material, which is the formal term. Having talked to other trade bodies, there appears to have been a lack of consultation around the economic impact that that could have on small businesses. I do not speak for them, but other industry bodies tend to have the same opinion as us that there needs to be a closer look at the impact that the introduction of those penalties could have. That is not to take away from the fact that we agree that fly-posting is unsightly and a real problem, as is the uncontrolled or irresponsible distribution of printed material. Certain elements of our industry are guilty of fly-posting, with which we disagree totally. We try to take them to task in that regard. It is not the case that we want a free-for-all in those two areas.

179. The real impact will not hit only our sector. The ability to hand out flyers can impact on everyone from the hairdresser to the small butcher. The coach tours of Belfast use flyers to market their offers. Small businesses cannot afford to advertise in the ‘Belfast Telegraph’ or buy a billboard. It is about finding an avenue by which they can market their product and react very quickly, because if there is a lull in the middle of the day, many small businesses, whether it be a hairdresser, a pub or whatever, will tell some of their staff to go out and drum up some business. It is about having that flexibility and keeping it at a realistic cost for a small business. That is why, as an industry body, we are keen to see the opportunity for councils to provide legalised posting sites, which has happened in a number of different areas in England. That is not just to create a free-for-all; there should be a not-for-profit fee to post there. That should be supported by terms and conditions, supported by legislation to outlaw fly-posting elsewhere.

180. The same applies to handing out flyers. That could involve a registration fee or licence fee — call it what you like — again at a low level from councils to allow businesses to do that. There could be heavy penalties for those who breach the rules, who do not clean up after them or who do not go through the proper procedures. A very weighty fine would discourage anyone from abusing the system. I reiterate strongly that we fully support the Bill and its measures. Fly-posting is a pest. In a previous life, I was involved in town centre management in Ballymena and Belfast for more than eight years, and fly-posting was the bane of my life. The issue of the irresponsible use of flyers remains in our industry.

181. The Chairperson: Thank you very much for your presentation. You talked about the lack of consultation. Will you expand a wee bit on that? I agree with you about flyers and the fly-posting issue. It seems sensible to consider using only one billboard, but there could be problems with that approach, because everybody could post there and it would be difficult to enforce. Do you have any thoughts on that?

182. Mr Neill: Companies can post on a number of different things. Across GB and Europe, boxes that are similar to huge postboxes are provided for fly-posting. Some local authorities use them to store some of their equipment. My understanding is that, when they apply for a registration or licence, people get a number, which appears on all their material. Anybody who fly-posts on those boxes without a number is treated as if they have fly-posted on a building or elsewhere, and is subject to all the illegal fly-posting penalties.

183. The Chairperson: Were you not happy with the consultation?

184. Mr Neill: It would appear that, because the Bill seems to be about clean neighbourhoods, economic and business issues were not recognised, and we and number of other industry bodies were not approached as part of the consultation. Indeed, we just caught the Bill, as it had slipped under our radar. I do not want to speak for other bodies, but having spoken to a number of them, I know that they felt the same. They were not made aware of the consultation, given the opportunity to come up with economic data, or consider the elements that affect them. However, we do not want to say anything that will delay the Bill, because it is important.

185. The Chairperson: Many small businesses rely on advertising through flyers, and so on. You have proposed the introduction of a licence for that type of advertising. Do you see that as being a licence that would require a fee, or more of a permit?

186. Mr Neill: We want to see the creation of a licensing or registration system. Sometimes, when a licensing system is created and fees are charged, it costs more to collect the money than the licence generates. Therefore, it would be a system of registration that could follow registered parties whose registration number would be on everything that they distributed.

187. As I said, some businesses, such as small bars or a hairdresser, may send their employees out when business is quiet to give out flyers. It would be very difficult for them to apply four weeks in advance to do that, because they would want to be able to react to the economic situation in which they find themselves on the day, never mind in the month. Therefore, the system created could be one in which businesses pre-register and submit something electronically when they are going out to advertise. That information would then at least be on file, and if something went wrong and they did not clean up after themselves, procedures would be in place to trace the business.

188. Mr McGlone: Thank you, Mr Neill. It would be useful if the Committee could get a list of consultees to see who the Department consulted on the Bill. I am trying to visualise your suggestion. In your submission you state:

“Pubs of Ulster fully support the control of … illegal fly-posting and the irresponsible distribution of printed material."

I hope that it is just sleight of hand when you go on to say:

“both these methods often provide the only way a small business can afford to advertise".

189. You have clearly stated that you do not advocate either of those two methods.

190. Mr Neill: No; we do not.

191. Mr McGlone: I am trying to understand the practical outworkings of your suggestion. You dealt with local councils, and it would cost a considerable amount for them to start to provide advertising sites. You know as well as I do that the real prime sites have already been taken, and for councils to pitch for those sites would be very costly.

192. I am also trying to understand what volume of businesses would want to advertise. It would not just be pubs and clubs, and I know what those businesses are about at the minute. The volume of businesses that would want to participate would mean that either none or 1,000 businesses wanted to advertise on the site. Your suggestion would become impracticable in the cost to the councils because of the prime locations required to be of any use for advertising and in the volume of business that would want to advertise on the site, and the problems that that could create in adjudicating what businesses were permitted to do so. You may be aware of the huge issues with businesses advertising on telegraph poles and lamp posts, and of the problems that those businesses have with Roads Service or Roads Service has with them, depending on what way you look at it. I am therefore unsure about the practicalities of your suggestion. On reflection, do you have any further ideas about that?

193. Mr Neill: I agree with you that it is a complex issue. I am not suggesting that councils should go and purchase prime 48-sheet advertising sites, because the cost of those sites is prohibitive. The issue has been dealt with by councils in a number of European countries, including GB, installing what look like huge 12-foot-tall postboxes with a small storage room inside in pedestrian areas.

194. Again, I would look at control measures that have been introduced in others areas, in councils in England and in councils further afield to manage fly-posting. It is a complex issue. I appreciate that it is difficult to determine how to control the volume of advertising. My understanding is that other areas have measured the economics of applications to install those sites.

195. That may also involve looking at the cost to councils. It is not so much about allowing fly-posting as it is an economic measure. Economic development units are forever spending money to try to help business in the community. That is a wide element. Between the two, to take away fly-posting would have less economic impact than the flyer itself. Only certain types of industries and people fly-post. Usually, it is event-based rather than used to drum up business on a quiet day.

196. The Chairperson: If a council were to undertake that, what are the cost implications?

197. Mr Neill: To be honest, I am not sure. I am aware — digging into my previous life — that there are some models in which a commercial operation has installed advertising pillars. It uses part of them to advertise on and gives the other part to the council for use for fly-posting. Therefore, they can be cost-neutral.

198. Mr W Clarke: Thank you for your presentation, Colin. Have your members made you aware of difficulties that they have had with councils’ provision of neutral advertising sites? Some councils, for example, oppose alcohol advertising. Therefore, they would not allow certain posters to be put up on their sites. Have any such difficulties occurred?

199. Mr Neill: That issue has not arisen. I am aware that councils take different views on alcohol advertising. When we look at our product base, we tend to find that no one goes to the pub for a drink any more. People may go for another reason and have a drink while they are there. The price differential between off-trade and on-trade is so great that if someone wants alcohol, he or she will not pay four or five times the price. Obviously, there would have to be a degree of flexibility in a council’s position, because it is an elected body and must represent the views of the community.

200. Mr W Clarke: Can you understand businesses’ frustration? If a business, such as a nightclub, wants to put up advertising on a legal site but is refused by the council, that causes it an awful lot of difficulties.

201. Mr Neill: Again, if the business is promoting, say, a DJ or an event, that is different from putting up a poster that says, “All you can drink for 20 quid", which we are totally against. As an industry body, we fully support the ban on any alcohol price promotion.

202. Mr Dallat: First, I am not entirely opposed to councils providing sites for advertising. It has been done successfully in Coleraine. Its French twin town presented it with an advertising pillar, which has worked extremely well. It also sends out a message that the council is environmentally friendly. Therefore, I would not dismiss that suggestion at all.

203. I am sure that you agree that the business in which you are involved has failed miserably to tackle fly-posting voluntarily. My small town, which is extremely attractive and has almost won tidy town competitions, is plastered with fly-posters on phone boxes, bus shelters and telephone junction boxes. Many of those posters have been put there by third parties — people who have booked a pub and organised the entertainment. What happens in a case such as that when the fly-by-night boy who has organised an event and fly-posted in the area is gone?

204. Mr Neill: I agree fully that the industry is has failed totally to deal with fly-posting. Our position, as an industry body, is that that needs to be regulated because agreement cannot be reached. A large element of fly-posting is done by promoters who run events in venues.

205. It is a bit like the proposals on fly-posting and the feedback that I saw from the consultation. That basically says that we will probably have to pin responsibility on the venue, because, at the end of the day, that is the only body that one can get hold of. The onus will have to fall on venues to police whoever is running events in their properties.

206. Mr Dallat: I do not think that leaflets that are handed out are as big a problem as fly-posting. They are a feature of life in other countries. They can be found anywhere, and they are a useful aid to tourists who may be attracted to a particular venue or event. Therefore, I am certainly not totally anti-handouts. However, a great deal more could be done to make that element of advertising more attractive.

207. It is interesting that, when people go to countries that have only recently entered the tourist industry, they will see that people in those places go to enormous efforts to attract tourists. They may dress people up in traditional costumes and so forth, and they give out little perks and all sorts of things. They do that rather than use a bucket and paste to plaster the whole countryside with posters. There are some areas where people are not safe walking, because they might end up with one of those posters on their back.

208. Mr Neill: I totally agree with you. Although my sector fails miserably on fly-posting — and I say that with some shame — we are probably much better in the world of flyers. The cost of flyers to professional venues is quite expensive, so if promoters are worth their salt, they will train their people to hand the flyers to the target market. I was at a Belsonic event in Belfast, and I was almost offended when I was not handed a flyer on my way out because I was not young enough. I was not the target market.

209. Mr Dallat: I have been there.

210. The Chairperson: Is that the end of the “lordy, lordy, look who’s 40" scene?

211. Mr Beggs: Do you agree that the artist or the venue should pay a penalty for fly-posting? The issue has to be incentivised to make sure that no one benefits from putting those adverts up on walls.

212. Mr Neill: I totally agree. We are keen for legislation and heavy penalties to be introduced to deal with anyone who fly-posts where they should not. If I go back to my town centre management days, I remember that we thought up a scheme whereby we would print cancel leaflets and stick them on to the original poster. However, that would have meant that we were fly-posting.

213. Mr Beggs: Fly-posting to attract tourists has just started to happen in a conservation area not far from here, adjacent to the historic town wall. That area just gets messy as a result of the fly-posting. Therefore, it is important to address such issues. Mr Dallat indicated that Coleraine Borough Council successfully provided a surface on which small businesses could advertise and that it has provided a method to allow them to do so. It would be useful to follow that up and get more information either through him or the council.

214. The Chairperson: That is something positive about Coleraine. That is excellent.

215. Mr Beggs: From your Province-wide experience, are you aware of any other councils or organisations that provide facilities for placing small adverts in town centres?

216. Mr Neill: That is quite limited here. I think that there is some such facility in Derry/Londonderry, but I am not aware of anything else. I knew the Newcastle town centre manager, so I know that attempts were made to introduce similar facilities there. However, there has always been an obstacle to putting small adverts in the public realm, because doing so would get into the world of the Department for Regional Development and a discussion of what can and cannot be in the public realm. Permission has always been an issue. I understand that Newcastle was offered some kind of a free deal but could not get permission for it.

217. Mr Beggs: Are there issues with the Planning Service? Perhaps there needs to be greater understanding of how such adverts form part of an overall package.

218. Mr Neill: I think that the issue falls into the Planning Service’s remit.

219. Mr Beggs: Flyers are frequently all over windscreens in the car park in the harbour area next to the castle, where I suspect most of us parked. How will a good distributor of flyers operate compared with a bad distributor? People frequently have flyers posted on their windscreen, but they do not want them, so they may blow away. I am trying to understand what happens in that situation. Would the responsible distributor be required to go around and tidy up? I do not understand how that would work. Will you elaborate on that?

220. Mr Neill: Someone who is distributing those flyers properly gives them to someone else; they do not put them on a property. To be honest, anyone who places a flyer on a car might as well be fly-posting, because it is just a smaller poster stuck to a windscreen on a car, which becomes a mobile object. The people who distribute the flyers would normally target their market, because there is no point handing them out to the wrong people. They hand them out person to person, as opposed to sticking them in phone boxes or on cars. Distributors pick a geographical area in which to work, and after they have distributed the flyers, they stop and clean the area behind them.

221. The Chairperson: Mr Neill, thank you for your presentation. We look forward to adding your contribution and the issues that you raised to our deliberations on the Bill. In rural areas, some people use Masses as an occasion to advertise, which is something that we must take a serious look at, given the nature of rural and small businesses.

222. Thank you very much.

4 November 2010

Members present for all or part of the proceedings:

Mr Cathal Boylan (Chairperson)
Mr Patsy McGlone (Deputy Chairperson)
Mr Thomas Buchanan
Mr Trevor Clarke
Mr Willie Clarke
Mr John Dallat
Mr Danny Kinahan
Mr Peter Weir

Witnesses:

223. The Chairperson (Mr Boylan): I welcome Vivienne Donnelly from Belfast City Council; Donal McLaughlin from Lisburn City Council; Karen Smyth from the Northern Ireland Local Government Association (NILGA); and Seamus Donaghy from Armagh City Council.

224. Mr Weir: Chairperson, in the absence of Roy Beggs, I want to declare an interest as a member of NILGA’s executive.

225. The Chairperson: I ask any member who wants to declare an interest to do so now.

226. Mr McGlone: Speaking of Roy, has he left us?

227. The Chairperson: Yes. We have sent a letter to thank Mr Beggs for his contribution. At the bottom of the letter, we stated that he must declare an interest wherever he goes. [Laughter.]

228. As normal, I invite the witnesses to provide a briefing for five to 10 minutes, after which I will invite members’ questions. You are very welcome.

229. Ms Karen Smyth (Northern Ireland Local Government Association): Thank you, Chairperson, for the invitation to present to the Committee. I apologise that there are no elected members with me today. Unfortunately, we were unable to bring an elected member. Our presentation might take slightly longer than you have asked, due to the complexity of the Bill and the details of what we want to cover. If you could indulge us, we would be very grateful.

230. The Chairperson: Sorry; I have my wee clock, but I will take that on board.

231. Ms Smyth: We will do our best.

232. NILGA has been working closely with the Department on the development of policy and guidance on clean neighbourhoods. That work is ongoing. Our oral evidence to the Committee will reflect that. However, local government broadly welcomes the legislation. We have a number of overarching concerns, which I will deal with before I pass over to my colleagues, who will deal with more technical issues.

233. NILGA’s view is that much of the Bill is a new burden on local government in Northern Ireland. We disagree with the Department’s view that the implementation of the legislation will be cost-neutral across local government. We believe that fixed penalty funding will not be nearly enough to resource the powers that are included in the Bill and that the full cost should not have to be met by ratepayers.

234. We strongly believe that there is a need for a lead-in period for the legislation and a need for clear guidance, which is required to allow councils to adapt to or prepare for new and additional powers. Many of the proposals will require clear and concise technical guidance to enable consistent and satisfactory implementation. We encourage the Department to work with us to produce appropriate new guidance or to revise existing guidance and to allow sufficient time for that vital activity.

235. More generally, NILGA is of the view that if the Bill provides discretionary powers, that may raise public expectations and will necessitate the provision of accurate and easily understood guidance so that those expectations can be managed. It will be up to each council to decide, in its corporate and community plan, which discretionary powers it intends to implement according to the limited resources that are available.

236. NILGA sees one serious omission from the Bill, which is the ability to deal with derelict property. Members will be aware that that is a massive issue. We believe that the Bill merely puts a sticking plaster on some issues and that there is an urgent need to provide powers to tackle derelict land, overgrown gardens and derelict premises. That problem is increasing, due to pressures arising from the current economic situation. The Department has commented at length on that issue in its synopsis of responses. However, we ask the Committee to note that we would welcome further discussion between local government and the Department, to work towards resolution of current difficulties with derelict premises and to develop guidance for councils on the matter. I have brought with me a paper prepared by environmental health officers in councils that looks at those issues. I am quite happy to furnish the Committee with that information.

237. The last main overarching issue is rural proofing of the legislation. We are keen to ensure that appropriate rural proofing takes place, as rural district councils can experience very different issues to urban councils, particularly regarding the source of nuisance noises and smells, with rural dwellers having potentially different needs to those of an urban population.

238. A few other key concerns will be highlighted further into the presentation, such as who should be responsible for addressing fly-posting concerns, and we have some concerns about the repeal of article 4 of the Litter (Northern Ireland) Order 1994, but my colleagues will deal with that.

239. Ms Vivienne Donnelly (Northern Ireland Local Government Association): I will deal with Parts 1 to 4 of the Bill. The proposals in Part 1, which relates to gating orders, are welcome. However, there are concerns that although those powers are discretionary, it may be that ratepayers will expect councils to enact them. The experience in Belfast City Council is that it is quite a resource-intensive process, so additional funding for that scheme would be welcome, bearing in mind that a gate costs about £4,000 to install and Belfast City Council’s overall budget for administering alley-gating schemes throughout the city is £500,000.

240. We had highlighted that caravans had been omitted from the definition of vehicles. The Department acknowledged that and has said that it is already covered, and we ask that that be clarified in any guidance on vehicles that is issued.

241. In relation to the offence dealing with two vehicles for sale within 500 metres, members may be aware that the Street Trading (Northern Ireland) Act 2001 can also be used for that. Again, it would be helpful to have guidance on when it is appropriate to use which piece of legislation. One omission that we had highlighted is that vehicles awaiting repair that are parked on a street in a residential area has not been addressed in the Bill. The Department acknowledged that but has said that it cannot accommodate it in the current timescales. Therefore, we ask that that be considered at a later date.

242. We welcome the additional powers that will allow councils to more effectively deal with and tackle issues such as littered pieces of land and leaflet distribution, a particularly prevalent problem for some of us. Councils face criticism for pieces of land for which they are not responsible, and there exists a great disparity between what is done about litter by councils and other land-owning bodies, which leads to an overall degradation of the environment across Northern Ireland. The Committee may wish to consider that as an issue still to be addressed.

243. In relation to street litter control notices, I am aware that the Department is updating the legislation in Northern Ireland to bring us into line with the UK legislation to deal with, in particular, cigarette litter resulting from restaurants, cafes and bars. However, a particular problem for us is cigarette litter coming from office blocks. It is unclear to us whether that will be addressed when the legislation is updated.

244. In my opinion, it is not cost-neutral to fund a service through the issuing of fixed penalties. In Belfast we issue between 1,200 and 1,800 fixed penalties for littering a year, and in our experience the funding that we receive though the fixed penalties does not support the full delivery of the service.

245. We would welcome the use of fixed penalties powers in relation to litter, particularly for some of the offences that have been cited in the Clean Neighbourhoods and Environment Bill, such as the giving of false names and addresses. Currently there is a power of prosecution but, in our experience, when those types of offences are brought before the courts they are not given that much weight and would probably be more effectively dealt with through a fixed penalty provision.

246. The main issue in respect of Part 4, which deals with graffiti and other defacement, is fly-posting, which Karen alluded to at the start. Councils in Northern Ireland are unanimous in their concern about the blight of fly-posting and the detrimental impact that such activity has in both rural and urban settings. A thriving fly-posting industry operates in a vacuum in which councils are powerless to tackle the problem effectively. We operate in a vacuum in which we cannot deal with the problem due to a lack of robust legislation. The Planning Service has the necessary powers but does not enforce legislation because it is not regarded as a priority.

247. Under the Bill, councils will be given the power to pursue only those who physically affix posters to premises. Under the legislation that councils work to currently, we can only remove and obliterate posters and recover the costs of removal. That can necessitate the removal of 2,500 posters a month in Belfast and up to 200 posters a month in Derry. In addition to the untidy and unsightly appearance that fly-posting causes, there is an inevitable cost to the ratepayer for removal and obliteration. That currently costs Belfast City Council in the region of £90,000 a year.

248. We welcome the Department’s response to the consultation. It recognises that councils need powers to prosecute the perpetrators and beneficiaries of fly-posting. We are encouraged by the fact that the Department seeks to amend the Bill to ensure that those key powers are available to councils as well as the Planning Service. We are pleased that the article that contains provisions to remove and obliterate fly-posters under the Local Government (Miscellaneous Provisions) Bill has now been retained; there had been a proposal to remove that article and replace it with clause 38. That retention will mean that we will not need to serve a notice in advance of removing or obliterating fly-posters. We are aware that the provisions could be improved and, indeed, have engaged in discussions with the Department about how they could be strengthened. We are happy to continue that engagement.

249. Our main concern in respect of clause 36, which relates to aerosols, is that it will require an additional resource. We also made representations that we would prefer the age limit to be increased to 18, although we recognise the Department’s view that that could be difficult to enforce given that some 16- to 18-year-olds may require aerosols for work.

250. The final issue that I will draw to your attention is that of investigatory powers. It runs throughout the Bill and is common to some of the proposed powers. In the initial consultation response, we highlighted the fact that we felt that the Bill’s overall powers needed to be reviewed to ensure that they are adequate to allow us to properly investigate the new proposed defences and bring them before the courts. The Department considered our view and responded by advising that it felt that the powers in article 20 of the Litter (Northern Ireland) Order 1994 were sufficient to allow us to obtain information. However, my experience of article 20 is that it is a much more protracted way of carrying out an investigation. If the powers could be made available to us without the need to go through a written process, that would lead to a much more effective and efficient way of enforcing and investigating offences under the Bill.

251. Mr Seamus Donaghy (Northern Ireland Local Government Association): I will deal with Part 5, which covers dog control enforcement. We welcome the new proposals, although we have a couple of concerns. The first is that we are adopting the legislation that is in practice in England and Wales, so, in having to resort to prosecution for failure to pay a fixed penalty, the council does not recover costs due to the Northern Ireland Magistrate’s Court rules. The charges are limited to £75 and will, therefore, incur great costs on Northern Ireland councils.

252. The second concern relates to the repeal of article 4 of the Litter (Northern Ireland) Order 1994 and how that would diminish the ability to obtain information as in article 20 of the same Order. The new dog control order regime should ensure that we retain powers equivalent to those in article 20 of the Litter Order, particularly in relation to the ability to obtain information from any person. We know that the Department is aware of that concern, and we await clarification on that point.

253. Mr Donal McLaughlin (Northern Ireland Local Government Association): I will deal with Part 6 and Part 7 of the Bill. As has already been said, the additional powers are welcome, but they will introduce an additional workload for councils, as new types of noise complaints will require a thorough investigation as opposed to the current arrangements, which allow only for advice and informal action to be taken. Councils will be required to establish detailed policies and procedures to ensure the successful implementation of the new provisions.

254. Local government has serious concerns about the cost to councils of carrying out works in default. An example of that is the removal of a vehicle that is causing noise in the street. We request that the Committee works with the Department to explore what, if any, additional resources can be made available for councils to successfully undertake the new and enhanced powers.

255. Moving on to audible intruder alarms, it is often impossible to determine whether the sounding alarm is associated with an intruder alarm or with some other type of alarm system. That can only be ascertained after gaining entry to the premises containing the alarm. The Department should consider including noise associated with other alarms in the provisions. We would like clarification on whether the power of entry means that a warrant is not required to enter a property boundary in order to externally silence an alarm, and that a warrant is only required to enter any buildings. A lead-in period will be necessary for the implementation of the legislation, and we recommend that there be three months between the making of the legislation and the commencement order date, to allow councils to prepare.

256. One of our major concerns about Part 7 is the lack of clarity surrounding the definition of an owner. We have alerted the Department to that issue, which has implications for actions on landlords and agents, particularly those who live in the Republic of Ireland. We will take this opportunity to highlight the problem with that definition and ask that the definition from the old Public Health Acts be included in the new legislation.

257. We also believe that clause 60(14) should be extended to include the reference to flies in clause 60(1)(g), particularly those emanating from landfill sites and waste transfer stations. There is a probability of double jeopardy there, as the Northern Ireland Environment Agency is the licensing authority and the councils are the enforcement authority outside that.

258. Ms Smyth: That is the end of our presentation. Thank you for being so kind in allowing us the extra time.

259. The Chairperson: You did very well. Thank you for your presentation. It is important for the Committee to have your contribution to our scrutiny of the Bill. I want to pick up on a couple of points: you mentioned some issues in Parts 6 and 7, and we will seek clarification on those. You also mentioned a lead-in period, and I want to tease that out. At present, we are dealing with primary legislation, and we have a problem with the secondary legislation and the follow-on to that. What do you mean by a lead-in period? How much time are you looking for to allow councils to roll out the process?

260. Mr D McLaughlin: As we said, we would like at least three months, but in the case of the noise provisions and the provisions for dogs, we would like to have as long as possible, whether that is three months or six months or whatever is relevant.

261. Mr Weir: You mentioned a three-month period in particular. A vast range of detail is involved, and I wonder whether you could provide us with a bullet-point summary outlining the lead-in time required for each of the different elements.

262. Ms Smyth: We will get that information to you.

263. The Chairperson: Thank you very much. You talked about the issue of fixed penalties and the need for recovery to be cost-neutral. Do you, as councillors, have any idea of the potential costs?

264. Ms Donnelly: We employ three litter wardens whose salaries total approximately £75,000. They are supported by an administrative officer and a supervising officer. Those are hidden costs, so to speak, on top of the legal costs. If it is assumed that we can take in approximately £45,000 in fixed penalties, the remainder will have to be pursued through the courts, so, already, there is a cost involved in providing that service.

265. The Chairperson: You mentioned the fixed penalty powers; will the lead-in period give you an opportunity to see what is working in that respect? You also mentioned that you wanted caravans to be included in the definition of vehicles. Mr Dallat, we are not talking about your area, where every caravan that visits is lifted off the street.

266. Ms Donnelly: We in Belfast have had a few problems with caravans that had been abandoned on private land. The residents were tortured with people going in and out of them and setting them on fire. We believed that we had no powers to lift them as we would an abandoned car. At the time, the opinion was that we could not deal with a caravan as an abandoned vehicle, but we note now that the Department is of the view that caravans can be included in that interpretation of the legislation. We want to make sure that that is clarified in guidance, because the Department has said that caravans can be included in the definition. However, we would like them be included in guidance just to clarify the point for future reference.

267. The Chairperson: Thank God it is not a parochial issue.

268. Mr T Clarke: Are caravans included in the definition of abandoned vehicles at the moment?

269. Ms Donnelly: They are not specifically mentioned. The Department has said that the guidance in England for the equivalent legislation mentions that caravans fall within that definition.

270. The Chairperson: Do you sit on Armagh District Council, Seamus?

271. Mr Donaghy: I do.

272. The Chairperson: You are lucky that you got in after I left it.

273. We have heard a lot about derelict buildings, and I want to address that issue. I know that you have touched on it. How do you propose that we get around that? Derelict buildings are an issue for local councils.

274. Mr D McLaughlin: The situation some years ago was that the planning legislation in England and Wales applied measures to deal with that issue. The same measures were not adopted in our planning Order here. At the moment, derelict sites where there are buildings are dealt with under the Pollution Control and Local Government (Northern Ireland) Order 1978. Where there is no building on a derelict site, we have no measures to deal with it. Some councils use the Rats and Mice (Destruction) Act 1919, but nothing else applies. We need a way to deal with the problem.

275. Ms Smyth: I want to emphasise to the Committee that we are aware of the time limitations on the passage of the Bill. There are things that we would like to see included in it but we know that, given the time limitations, that may not be possible. We want to alert the Committee to the issues that we are facing and that need to be addressed as priorities. However, we are anxious not to allow certain issues to hold up the Bill, and we are willing to wait for another opportunity. The Bill may not be perfect, but it is important that it goes through.

276. The Chairperson: Finally, I want to seek clarification on the gating orders. I do not know whether Armagh District Council has £500,000 to spare, but what are the average costs for alley-gating? You said that Belfast City Council has set aside money for that.

277. Ms Donnelly: My colleagues tell me that Belfast City Council looked for funding, but, in the end, used its own funds. It has set aside a budget of £500,000 to administer alley-gating. It has advised, as has been quoted in some of the literature, that a gate would cost £3,000, but that cost has gone up to £4,000. That covers only the physical erection of the gate; they are very sturdy structures that have to comply with strict guidance. The quoted cost does not cover the nine- to-12 month lead-in time that is required to administer a project, which involves getting all the residents on board and obtaining consent from Roads Service. There is a lot of work involved, as well as a lot of legal work.

278. The upside is that alley gates have reduced antisocial behaviour anywhere that they have been installed.

279. The Chairperson: Alley-gating has been a success.

280. Mr T Clarke: Why is alley-gating the responsibility only of councils? Some of the alleys will be on Housing Executive properties.

281. Ms Donnelly: The council took alley-gating on as part of its community safety remit. Any group of residents can come together to ask for it, and Belfast City Council has issued guidance on its website on how to work through that process.

282. Mr T Clarke: I have no problem with that idea. However, if antisocial behaviour among Housing Executive tenants in a Housing Executive area leads to a requirement for alley gates, why does the Housing Executive not pay for those alley gates?

283. Mr Weir: When you talk about alley-gating, you are probably talking about gates at either end of an alleyway. There is virtually nowhere left in Northern Ireland that could be described as 100% Housing Executive. If it is being done along 20 houses, you will find that a number of those houses are privately owned.

284. Mr T Clarke: Yes, but there is still a responsibility after the houses are sold. If it was primarily social housing to start with, the Housing Executive has a responsibility.

285. The Chairperson: To be fair, in my own area, it is not only the Housing Executive but community organisations and residents’ groups that tend to ask for alley gates. A lot of groups are involved. The split is normally 50:50, and there are regulations in respect of what is owned and what is leased.

286. Mr Weir: Chairperson, you covered some of the points that I wanted to make. I have considerable nervousness about alley-gating. A general point was made about not being able to cover cost. I can see how some money might come in in a number of the aspects, but we may need to look at how to close the gap. It strikes me that, unless there is a subsidy from central government, alley-gating does not generate any income at all; that is the nature of it. I have grave concerns that councils could be left with massive public expectation but no money to cover it.

287. Perhaps you could send us details of how the £500,000 is broken down. I agree with you that derelict buildings are a major problem, and you will get back to us on the timescale of a lead-in period. The general point was made that there may not be enough money coming in to cover this range of things. Perhaps you could send us a synopsis of how you see the finances in each of the areas and information on whether there are any other ways of closing the gap. Some of the legislation may need to be a bit less ambitious. To be brutally honest, I do not see the gaps in the various areas being filled through central government providing a subsidy to local government. Therefore, we may need to change other legislation to allow greater cost recovery, for example. Perhaps you could provide us with a paper on all of that.

288. There may be items that cannot be taken on board through amendments. I wonder whether we should keep those in mind and refer to them in the Committee Stage report. There is not enough time to incorporate certain aspects within the legislation, but we should flag up any further actions that may need to be taken. I know that you cannot respond to us with that information today, but perhaps you will send it to us in paper copy.

289. Ms Smyth: I thank Mr Weir for that very valuable contribution. We are beginning to look at the issue of cost recovery across a number of pieces of existing and new legislation. At the minute, we are limited by the magistrate’s rules. We may need to seek an alteration to those, given the current economic situation.

290. Mr Kinahan: Most of my points have been covered. Thank you very much for the presentation. You said that alley-gating was successful. We will receive a presentation later that will claim that alley-gating forces youths into other areas and simply moves the problem around. Yet another group that I talked to said that it has worked wonderfully because it encloses communities and they can all go out. Will you expand on how successful it has been?

291. I agree entirely with Mr Weir: I would love to see the fixed penalty notice costs broken down to reveal what they cost councils. What increases do you think might be necessary? You implied that fixed penalty notices ought to be a bit stronger or higher to give councils a bit more money coming in to the coffers. I fully agree about the derelicts. A power is needed to identify who owns the building, because that often takes the longest time.

292. Mr W Clarke: Thanks for the presentation. I was a member of NILGA some time ago. You are very welcome. Most of my points have been covered. As regards fly-posting, local authorities need to provide display boards for people to advertise their businesses. In my constituency, in Newcastle in particular, there were major planning problems about the location of display boards. What is NILGA’s experience of that? What work needs to be done in parallel with the legislation to ensure that display boards are erected?

293. In relation to alley-gating, has any work been done to benchmark the savings in police resources, council office resources and, obviously, people’s well-being? That would be an interesting figure. If there is a reduction in police personnel resources, they should foot some of the bill, be it through community safety partnerships or district policing partnerships (DPPs). What is your view on that? I think that they have proven to work extremely well.

294. I agree that the dogs legislation should have been in the Dogs (Amendment) Bill. I am a member of the Committee for Agriculture and Rural Development, which is currently conducting clause-by-clause scrutiny of that Bill. It would not be feasible to include that in the Bill at this stage.

295. What would you like to see in the legislation regarding derelict buildings? What would make your job easier from an environmental health point of view? There are a number of examples in my area, but I will not go into them again. People do not want to be found, and the building could fall in to disrepair. It is a danger to people’s health, with children running about and setting fire to it — the usual.

296. Ms Donnelly: I will respond to the fly-posting issue and the mention of designated sites. To address the issue, we had an inter-agency group in Belfast a few years ago. We brought a company over from England that makes pillars and identified 20 sites throughout the city. Our stumbling block was that, although the planners said that they could probably give agreement, Roads Service said that there was no provision in the legislation, when it was consulted by planners, to allow the pillars to be located at those sites. Our difficulty is that there are very few privately owned sites in Belfast that would satisfy the people who want to fly-post because they want them in locations where there is heavy footfall and heavy traffic passing by. It came unstuck at that point because we could not get the permission through the process to put them up.

297. Mr T Clarke: I am glad that you came across a stumbling block, because other businesspeople have to go through expensive means to advertise their businesses. Fly-posting has blighted the countryside and should not be allowed to happen, and we should not facilitate fly-posters by making it a cheap form of advertisement. People have gone to great expense to advertise their businesses or nightclubs and the services that they offer in other forms. Why anyone would put up some cheap form of totem pole so that it can be legitimately plastered with posters is beyond me.

298. Mr W Clarke: What I am talking about is high quality board, not just some tacky sort of board. There would be a cost associated with advertising on that display. If we are serious about discouraging people from fly-posting, we have to provide alternatives.

299. Mr T Clarke: We could send them a copy of the trade rates for the ‘Belfast Telegraph’ and ‘The Irish News’ and tell them to take out adverts in the newspapers.

300. Mr W Clarke: People might not —

301. The Chairperson: We could get into a debate on this. We should look at this in the round. We have seen in all towns that there is no point in going at 10.00 pm to advertise a disco. Mr Beggs has made a good suggestion that we should look into the cases of those who innocently have to deal with fly-posting and recoup the costs involved. The Committee should certainly look into that.

302. I agree that a board, properly managed, could be the answer, if people want to buy into it. We must also look at the smaller businesses that cannot afford to do so. They need other means and ways to advertise. Both points are valid and we will discuss it.

303. Mr Kinahan raised two points.

304. Mr Kinahan: My first question was about how successful alley-gating is.

305. Ms Donnelly: I would like to confer with colleagues who deal with alley-gating and get a comprehensive report for you on that, rather than commenting on it now.

306. Ms Smyth: I think the alley-gating point was very valid. It is one of those issues that, if we had the relevant community planning powers and the power of well-being, would be much easier to deal with, and that applies also to other legislation that is going through the Committee. Aside from the police, we would bring in Mr Clarke’s point about the Housing Executive and look at things much more holistically.

307. The Chairperson: Generally speaking, all parties and agencies are involved in that, including housing, Roads Service, the community and residents’ groups. It is happening in the Armagh Council area already.

308. Mr W Clarke: I asked a question about resources.

309. The Chairperson: We will see that after the next Budget process.

310. Mr Kinahan: I had one other question.

311. The Chairperson: Mr Clarke, are you finished?

312. Mr W Clarke: No. I asked about derelict buildings. What do you want to see in the legislation about that?

313. Mr D McLaughlin: The chief environmental health officers’ group (CEHOG) produced a document on that with recommendations. As Karen said, we will furnish the Committee with that document.

314. Mr McGlone: Thank you all very much and good to see you again, Vivienne, though you are wearing a different hat.

315. You spoke earlier about caravans. Two or three things were mentioned, including the lack of definition coming from the Department, which was eventually sorted out. I thought about more rural areas, and it occurred to me that there are bits of articulated trucks abandoned throughout the countryside. I can think of one or two cases in which cat litter saturated with red diesel has been just dumped. Is there an argument for clarification or an extension of the definition to include caravans/trailers? Should that be added to the list?

316. Ms Donnelly: As far as I am aware, trailers are already included in the definition.

317. Mr McGlone: That is fine.

318. The second thing is audible intruder alarms. Those can be wild annoying, especially for someone living on an estate and working shifts. I do not know how someone can discern the difference between a smoke alarm and an intruder alarm, other than smoke coming out the windows. It is very difficult to do that. It is just an old hooter that goes off to alert people.

319. The nomination of keyholders would be extremely costly and difficult to the point of being impossible. That is completely undoable. You can go to a house one week, and find someone in it; go the next, and someone else would be in it; and go the following week to find absolutely no one in it. In the private rental sector in particular, you would find such as system catastrophic and totally unmanageable. To try to update it would be most unrealistic. The Electoral Office, with all its resources, has great difficulty in trying to update its information. As you well know, we have so many allegedly vacant properties that the resources required to do that, on what would become almost a monthly basis, would just be impracticable and undoable in the times that we are in, unless somebody has another solution. However, I really think that to get two nominated keyholders — who, like me, may lose keys now and again — is undoable. What are your views on that? Can someone tell me that it could be done with existing council or departmental resources? I honestly do not see it.

320. Mr D McLaughlin: To be honest, I really do not know what we could say to that, Mr Chairman. I accept that getting the identity of some people in certain properties is a difficult task, and Mr McGlone gave a few examples of that. I agree that tenancies in the private sector change a lot, which would be difficult to follow up on. That sector is, probably, at times, one of the less responsible. I am not from the noise end of things, so I may have to speak to some people who are to see what the situation is. However, I know that some people run a voluntary scheme and some of them have come in to us with the details. I would work on a more comprehensive scheme that requires everyone to do it. I do not know how that would work.

321. Mr McGlone: Nor do I.

322. Mr D McLaughlin: I do not know how we will chase up details.

323. Ms Smyth: We will look into it and get back to the Committee.

324. The Chairperson: Have a look across the Department and come back to us.

325. Mr Dallat: Thanks for the presentation. It was a breath of fresh air, and the absence of elected representatives did not take away from it at all. [Laughter.]

326. The Chairperson: Trust me, there are enough of them here.

327. Mr Dallat: I have a couple of questions. To pick up a point concerning fly-posting: I do not want to sound parochial, but Coleraine is twinned with La Roche-sur-Yon in France, which sent over a gift. It was one of those circular things that you can put your —

328. Ms Smyth: A parasol.

329. Mr Dallat: It was the best thing ever happened, because it provided an alternative to fly-posting. That is one thing that we certainly learned from the French.

330. Election posters have to contain details of the agent responsible. Is it possible to require any type of public advertisement to have a contact on, so we at least know who put them up? Alternatively, should the venue where an event is held be responsible for the offence committed? It seems to me that that should be part of an agreement to hire a hall, hotel or whatever.

331. Ms Smyth: Yes.

332. Mr Dallat: I say that with all sincerity, because the town where I live, Kilrea, is obliterated with posters week after week. We get the council out to clean up the bus shelters, we leave the town tidy and, the next Monday, it is all undone again.

333. My second point concerns the term alley-gating, which scares the wits out of me. There was an interesting case, again in Coleraine, in which a wheelchair user took the council to the Equality Commission because alley-gating had been carried out, and the case was settled out of court. Is that something that is considered in every district? Does it have to be covered? As access could be an issue, must alley-gating be equality-proofed?

334. Ms Donnelly: As far as I know, a great degree of consultation takes place in Belfast. My colleagues advised me that they prefer to have 100% commitment before going forward with a gating scheme. In some cases where they have not secured 100% commitment, they have brought in mediation. That is their approach. I suppose that those types of issues would be addressed through such discussions and negotiations, but I will clarify how that is addressed.

335. On the fly-posting responsible person issue: I agree that it would be easier to make the venue responsible. At the minute, the venue blames the promoter and we go round in circles trying to identify who the responsible person actually is. I think that the legislation proposes that the person responsible will have to show that they took reasonable steps. That is the planning element that is proposed in the Clean Neighbourhoods and Environment Bill. The Department is looking at that, and I presume that it will go down the same route by giving us the same powers. The defence available will be to prove that reasonable steps were taken to avoid fly-posting.

336. Mr Dallat: That is great. Thanks.

337. Mr Kinahan: I asked about the scale of fixed penalty notices. What broader spread do you want?

338. Ms Smyth: Sorry. I suggest that we come back to the Committee with a paper on the financial issues.

339. The Chairperson: Mr Dallat raised the issue of alley-gating. Some people understand the concept, but I want you to put it down on paper. It is very valuable in some places. It is not a one-size-fits-all solution, nor does it suit every area, but we have seen the results of young people running up and down alleyways. They let off bangers, dump stuff and torture elderly people in particular. Sometimes, there are benefits, but alley-gating may not work in all areas. However, we are saying that the legislation contains an option for it, and if all the bodies get together and want it, that is good enough. We need to experience these things and then it might encourage others to look at it, at least. I want you to put on paper the advantages and the disadvantages, such as whether it restricts people’s movements. Thank you very much.

340. Before I invite the next set of witnesses in, I want to refer to a letter from Roy Beggs. He wrote to ask whether the Bill provides the power for an innocent party to recoup costs from the beneficiaries of advertising for the removal of posters that have been fly-posted. He is talking about nightclubs and whoever else, and it is something that we need to look at.

341. Mr W Clarke: Recoup costs from who?

342. The Chairperson: Nightclubs, for example, go out and advertise. They get the benefit of that advertising, because whoever goes to the nightclub pays in. The local council has to recoup the money spent on removing fly-posted advertising. He was using that only as an example.

343. Mr W Clarke: We are back to the issue of whether the promoter is responsible. The nightclub might have asked the promoter to advertise the business and paid him to do that.

344. Mr T Clarke: It should be the nightclub’s responsibility to go to the promoter.

345. Mr Weir: You do not want to have to go after someone who may be the smallest person in the chain. For the sake of argument, it may be that an Eastern European immigrant who has been given a load of posters to put up may be fined, while there are people further up the chain who are actually responsible for it.

346. Mr W Clarke: You can do that through the small claims court even now.

347. The Chairperson: We will look at it in the Bill and decide.

348. OK. We will move on to the next briefing on the Bill, which is from the Environmental Quality Forum. I welcome the chief executive of Tidy NI, Dr Ian Humphreys, and Chris Allen, Tidy NI’s local environmental quality officer. Please make you presentation for up to 10 minutes, after which members will have an opportunity to ask questions.

349. Dr Ian Humphreys (Northern Ireland Environmental Quality Forum): Thank you for the opportunity to present evidence today. Chris Allen and I are employees of Tidy Northern Ireland, but we are here as members of the Northern Ireland Environmental Quality Forum, which is a relatively new body. It is about one year old and has met only four times so far. At the moment, it is made up of the councils of Northern Ireland and Tidy Northern Ireland, but it is open in future to including other bodies, such as landowning bodies, that may have a big interest in litter and other environmental crime issues.

350. We realise that the legislative approach to tackling those issues is one of a menu of things that need to be in place if we are to change behaviour in Northern Ireland. Ultimately, this is all about changing away from behaviour that costs us so much. Members have probably already been quoted the fact that 46% of people recently questioned said that they had dropped litter in the previous six months. That is the scale of the issue that we are dealing with.

351. The Environmental Quality Forum warmly and wholeheartedly welcomes the legislation as a big step forward in Northern Ireland. The Bill seeks to deal with an issue that has big social, environmental and economic impacts. The public see the issue much more broadly than the legislation tries to tackle it. People are out on streets and roads every day. Of streets that we surveyed, 97% had litter. This year, we have done more than 2,500 surveys. That is what the public are seeing, and they make no distinction between council land, Housing Executive land, Roads Service land or whatever.

352. That causes people concern, and they even feel less safe in neighbourhoods that are littered. Environmental crime of that nature can lead to other, more serious environmental crime. From the Tidy Northern Ireland perspective, we know that litter kills millions of animals every year, many of them marine species. Therefore, we are also trying to tackle that environmental issue. Of course, the Committee is well aware of the cost of £34 million. I apologise that I may have put £94 million in the literature that we sent out. Although that figure is a mistake, it is probably not far off the real cost. When we consider that £34 million is spent on street cleansing and that figures released yesterday showed that graffiti cost another £17·3 million, the bill for all the elements of the issues that we are tackling would add up to vast amount of money. By and large, we could save that money.

353. Many people tell me that the letters they receive from tourists show that the litter issue costs us money in another way. Tourists come here for the first time, we attract them to Northern Ireland, and they go home but do not come back. They tell their friends that this is a dirty country. I also know that companies coming here have refused to invest in Northern Ireland simply because they have seen the litter on the streets. Litter is a serious issue to us. We have to have the strongest legislation that we can to deal with it. To achieve that, we empower the people who enforce the regulations daily in the best way possible. We should not put up walls and barriers to enforcement action.

354. I said that we welcome the Bill, and we absolutely do. We want a no-nonsense approach to enforcement, which requires the legislation to be in place. I will now circulate a few graphs to make the point that we must get tough in using the legislation. Once it is in place, every council has to be willing and ready to use it and to enforce it.

355. The first of the graphs shows that in Southwark Council the public satisfaction with the street scene — what people go out and see on the streets — fell between 1997 and 2000. In the next graph, members see that an explanation starts to appear. Southwark Council did then what, by and large, we in Northern Ireland do now: go and pick up after people. That is our way. Councils are all geared up, lots of staff are employed with lots of kit and gear, so, if a problem is identified, if councillors ask for their street to be sorted out, we go and clean it up. We do not put the same investment into prevention through enforcement and campaigning against littering.

356. Southwark Council had a policy of collecting rubbish from the streets. In 1997, that amounted to about 6,000 tons. People got to know that their rubbish would be collected, and more lorries were sent round to do so. By 2000, the amount collected had gone up to more than 9,000 tons.

357. However, as you saw in the first graph, people’s satisfaction with street cleanliness was dropping, even though more and more litter was being collected off the streets and there were more and more bags of rubbish. The point was that people saw more rubbish on the streets and more people out trying to pick it up, and the perception was that it was a dirtier neighbourhood to live in. Therefore, the council then took a no-nonsense approach and started enforcing, and it found that the public perception quickly and greatly improved. That was the impact of enforcement.

358. Coming on to the Bill specifically, we want to be sure that any legislation that comes into place means that all landowners will adhere to the same standards. At the moment, the Bill focuses on councils, and councils take all the flak when there is a problem. There is a concern that the Bill does nothing to bring about improvements in what the public already see on other landowners’ property, particularly those who might have Crown immunity, even if they are statutory undertakers, where litter is not seen as an issue that needs to be dealt with. The legislation, specifically clause 17(10), excludes any ability of councils to try and enforce on those lands where the bulk of other issues lie.

359. When we are surveying streets, we can pass streets on council land, and we often do because they have set very high standards. However, it may be that we would fail the transect just 2 ft behind, which may be held by the Housing Executive or Roads Service, because of the litter lying on it. That is what the public see. Therefore, we need something to address that. This legislation does not tackle that, yet it is a big part of public perception and of what the public here and visitors want to see improved.

360. Secondly, fixed penalty notices have to be set at a level that would be a proper deterrent, rather than people just thinking, “Well that is £50 gone here or £75 gone." For a lot of people that is nothing, and it is not going to be a deterrent. The cleansing costs are £34 million a year, and last year we issued about 3,500 fixed penalty notices for littering and dog fouling. If a “polluter pays" approach is taken, it would be a massive fee. For example, if, say, 10% of the cost of street cleansing is litter and dog fouling, the fixed penalty notice to cover that would be £1,000, rather than the £75 median range that we have now.

361. We need to strongly think about what level we are setting for the fines and what deterrents we want. Are we really going to be tough on this and make the improvements that we want, or are we just going to be careful to avoid upsetting people too much? If you drop litter in the USA, you face a $500 fine or up to one year in jail, or both. If you drop litter in the harbour in Hong Kong, you face a £500 fine and up to six months in prison. I am not suggesting jail sentences for this, but I am suggesting that we increase the level of fines to something that is a proper deterrent and that will put people off doing it again.

362. We have already said a lot in our submission, but my final point is that we need to be sure that this legislation is, as I said at the start, enabling of the enforcement officers. That links through to ASBOs, which are also an important element that can be in the armoury of the enforcement officers. That is mentioned in the English legislation and if we are going to have parity, it needs to be brought into the legislation here.

363. The Chairperson: Thank you for your presentation. I want to clarify something. Say that somebody is walking down the street or through a housing estate and they fire something into somebody’s garden, normally most people would go out and lift it and put it in the bin. However, if it happens repeatedly and it is not lifted, obviously it is then up to the council to serve a fixed penalty notice; that is what the regulation says. Where is the comeback in that? I know that you mentioned ASBOs, and we have to be very careful when discussing ASBOs in case we are isolating a part of the community and a certain age group. Is the problem with the fixed penalty notice the £75 limit? Are you asking that we raise that?

364. Dr I Humphreys: The limit should be raised considerably. If people are fined for a second or a third time, those limits should be moved towards the upper level. That will have a deterrent effect. A lot of people can easily afford a £50 fine and not worry about it. To be honest, the fixed penalty notice is a pay-off; it is money in a brown envelope to forget about it. Therefore, there is no public knowledge of the offence and no deterrent for that person, whereas, if they go to prosecution, there is public knowledge that that person has been fined for littering, even if it is for the same amount. People do not want the public to have that knowledge, so that works as a deterrent. The fixed penalty notice is an easier and cheaper method of effecting a payment for a crime that has been committed.

365. Mr Dallat: The argument that is often made against that is that if a £1,000 fine is imposed on someone who has no means of paying it, the whole purpose of the penalty has been defeated immediately because although the person could be thrown in jail, the fine will never be paid, which could result in millions of pounds of unpaid fines.

366. Dr I Humphreys: We will never stop everybody dropping litter and we will never catch everybody. If we have high levels of fines and when people reoffend, go through the court system — I am not suggesting that people go to jail — and have their names put in print, the public perception will be that they will get caught littering and suffer the embarrassment of being named. Therefore, most people will stop. I agree that we cannot stop everybody dropping litter. We have an issue in that regard.

367. Mr Dallat: Surely enforcement is only one aspect. In this part of the country, there is, unfortunately, a culture of dropping litter. If you take the ferry over to Scotland, the first thing that you will notice is that the villages are tidy and neat. That is because people there simply do not drop litter. They feel very annoyed when they see other people doing it, but we are nowhere near that. Is there anything in the legislation that will positively encourage people to not litter?

368. Dr I Humphreys: Danny’s party brought a motion to the Assembly proposing a clean-up week, for which there was cross-party support. I am not saying that it has to be restricted to a week. I totally agree with you. I said at the start that there has to be a menu. The legislation is an important element because there are people who will not listen to any campaign or message. Very soon, we will write to every councillor and MLA to ask for their support for the big spring clean campaign. We will then move to engage the public, celebrities and the media so that it becomes socially unacceptable to drop litter.

369. Members have probably heard about the litter summit that is taking place next week. We are bringing over somebody from Texas who has run a 25-year campaign called Don’t Mess With Texas. That has been very successful; there has been a 72% reduction in litter, and the cost of it, although it is for the state of Texas, is $2 million a year. It has not increased in budget for 25 years and it has paid for itself. I totally agree with what you are saying. We have to have a balance. The legislation should come down heavily on those who ignore the law, but we want something that will positively encourage the goodwill of the other half of people who do not drop litter and get very frustrated and annoyed about littering. It is not an issue about which people sit on the fence.

370. The Chairperson: We will not regard this brochure about the summit as litter.

371. Obviously, we are going through the Waste and Contaminated Land (Amendment) Bill and we will look at the set of fines that it contains. Getting back to the point, legislation needs to specify a fine. We cannot impose fines on everyone who is walking down the street throwing litter, no matter how we go about it; it is about changing attitudes. However, a deterrent is needed, and we certainly support that. As the Bill stands, the limit is £75, and we will look at that as we go along.

372. I want to tease out the issue about the selling of vehicles. You say that there is an enforcement loophole.

373. Dr I Humphreys: We have received advice from people who have looked at trying to enforce that in England. A person can have 10 cars on sale, all of which are 500 metres apart, and they just meet the person who wants to buy a particular car. It is a difficult situation to deal with effectively; it will cause a little bit more of a problem for people who want to sell multiple cars off the street. We are not suggesting an easy solution.

374. The Chairperson: We will take that on board and ask the Department for clarification on that issue.

375. Mr T Clarke: I am not saying this because I am involved in the motor trade, because I do not sell cars off the street —

376. The Chairperson: It was a leading question; I am glad that you came in.

377. Mr T Clarke: You are saying that a person can place a car every 500 metres, but if you think of the consequences of that, where is that person going to get a place to park a car every 500 metres? That is a considerable distance.

378. Dr I Humphreys: That regulation has been circumvented in England by people who adhere to the legislation by having cars parked in that fashion. If it is your living, you will find a place.

379. Mr T Clarke: I know that it happens, and I would welcome something that would prevent it happening. In the Randalstown area, for example, it happens on the hard shoulder, but that would not be 500 metres long. That is not going to be extended, and I do not know any other locations that would allow cars to be parked every 500 metres.

380. Mr Weir: I think that there is a wee bit of a misunderstanding there.

381. Mr T Clarke: Is there?

382. Mr Weir: They are saying that the proposed legislation prevents cars being sold within a 500-metre limit; they are not advocating that it should happen.

383. Mr T Clarke: I thought that they were saying that it would allow cars to be sold every 500 metres.

384. Mr Weir: No. On that point, have you had any discussions with the Department whether, if it is a question of closing the loophole, why a 500-metre limit was picked?

385. Mr T Clarke: Why at all? Why not just ban it outright?

386. Mr Kinahan: I thought that it was illegal to sell a car at the side of the road.

387. Mr T Clarke: No, it is not. Instead of having a discussion about allowing cars to be sold every 500 metres, why not just say that vehicles should not be allowed to be sold on the side of the street?

388. Dr I Humphreys: I am not a legal expert, but my understanding is that if you or I were to sell our single car on the street, we would want to be able to do that, because that is about us moving the car on, and that is a legitimate thing to do. It is about tackling people who run their business off the street and have a dozen cars for sale.

389. Mr T Clarke: It is about the definition of “street". Someone who legitimately wants to sell their one car, which they change every four years, can sell it from their drive. They are not going to be prevented from doing that, but there is a difference between the street and one’s drive. The blight is caused by people who park cars on the side of the road with “for sale" signs with contact numbers. That is what I deem to be “on the street". Why not just say that cars cannot be sold on the street, but they can be sold from private property, which is an entirely different argument? It is about on-street trading. When you go to Londonderry to go towards Bridgend, there are loads of parked cars being sold by people running businesses illegitimately. If they want to sell cars from premises or from a private house, which they are entitled to do, that is different. It is the on-street trading that is the problem.

390. The Chairperson: I agree; it is a valid point but, to be fair, not everyone has a drive. I do not know whether that was a plug for a dealer; perhaps they should be advertised in ‘Auto Trader’.

391. Mr T Clarke: You cannot park on a public road anyway, but if you park your car in your drive, you can advertise it in a magazine. In order to make it a fair playing field, there should be no on-street trading for anyone.

392. The Chairperson: I totally agree with you, but it is the case that residents in older social housing estates can park only on the road outside the house, unless they concrete their front garden. However, it is a valid point and we need to look at whether there are exceptions in some respects, but you should be allowed to sell your car.

393. Dr I Humphreys: That is why you can. This is trying to stop more than one car being sold on the street within 500 metres of another, to prevent a business, operating with 10 cars in a row, blocking everyone else from parking near the house.

394. Mr T Clarke: Obviously you are not from the Antrim area, but if you go to Randalstown there is a legitimate garage on the right-hand side, John Mulholland Motors, the first garage you meet as you come off the roundabout. Just before you come to his garage, there are at least two cars every day, if not three, parked on the hard shoulder with “For Sale" signs. Why should John Mulholland pay commercial rates for all his advertising — on TV, press and whatever else — for his legitimate business, while other people can come up and park right beside his business and advertise their cars? We should remove that opportunity. Such cars should not be allowed to park in that public place.

395. Mr Kinahan: This is dealing with that.

396. Mr T Clarke: It is not, because one car can be parked every 500 metres.

397. The Chairperson: It is something that the Department should look at. You brought it up, and I wanted clarification on it. Obviously, Danny, you would not have any problems with parking outside your front door.

398. Mr T Clarke: He probably needs to cut trees down to get the helicopter in.

399. Mr W Clarke: Thank you for your presentation. I agree with your point about other statutory bodies not being included in the legislation. You have the likes of councils, Housing Executive, Forest Service and Rivers Agency, and it even says that schools should be exempt. That is the very place that should be used for teaching young people about litter; I do not think that schools should be exempt. I agree with your comment on that. NI Water sites have litter strewn all over them; I have issues with that. Forest Service only does litter sweeps in forest parks; it does no cleaning in the general forest. I want clarification as to why that is. Is it to make the Bill competent? Why are the exemptions in it? Can you clarify that?

400. I think that the working classes are punished by fixed penalty notices. I have a serious issue with fixed penalties in general. If you are living on £75 per week, a £75 fine will mean a hell of a lot to you. There should be a sliding scale of fixed penalty, taking into account salary and economic background. To a millionaire, £75 is nothing; but to someone living on £60 per week, £75 is a hell of a lot of money. Every Department just sticks down £75 or £100 fines for fixed penalty notices in legislation without seriously considering whether that is a deterrent or whether it is punishing the working classes. That is what I see it doing. It does not make middle or upper class people think twice about dropping litter or dog fouling or whatever. Departments must think about fixed penalties and how they operate. That is my general opinion.

401. Dr I Humphreys: If a case goes to court, the exact issues that you have talked about are taken into account. Ability to pay is one of biggest elements in deciding the size of a fine. That is why sometimes cases go to court and the fine is less than the fixed penalty.

402. A lot of people who are fined are not from working classes. For example, one council recently noted the number plates of 500 people who were driving round dropping litter out of cars to identify the licence holders and issue article 20 notices. Those people were from across the whole spectrum. Litter is dropped from all sizes of car, four-wheel drives and so on. It makes no difference. The point is that everyone is doing it and until we come down hard on it and accept that it will cause pain in some places, we will not deal with it and we will carry on spending money on clearing it up. We spent £34 million this year and £28·3 million the year before; what is it going to be year on year? We have to start coming down hard on it.

403. Mr T Clarke: I disagree with Willie Clarke about the scaling of fines. If you do not commit an offence, you will not face a fine. This is all about encouraging people not to get fined. There should not be a scale of fines, and you should not argue for more lenient treatment because you are at one or other end of the social ladder. If you drop litter, you break the law and you should be fined, regardless of your social standing.

404. Mr W Clarke: You are missing the point.

405. Mr T Clarke: No.

406. The Chairperson: Hold on. There are two points here. From your point of view, it is a deterrent.

407. Dr I Humphreys: Yes. It is about creating the perception in the public’s mind that they will get caught if they drop litter. The message is that it is costly if you get caught, so do not do it.

408. Mr Buchanan: One of the things that plagues our towns and cities is chewing gum, the majority of which may be thrown down by schoolchildren. How do you enforce a fixed penalty on a schoolchild?

409. Mr T Clarke: Parents.

410. Dr I Humphreys: As you are probably well aware, most councils shy away from issuing a fixed penalty notice to anyone under 16, or even older than that. Therefore, the message does not get across to the young people who drop litter.

411. There are councils in England, for example, who will legitimately take a picture of someone who has dropped litter, whether that is gum or any other form of litter. Quite often the person who dropped the litter will be wearing a uniform, so the council will take that photograph into the school and show the head teacher. The person who dropped the litter may have been asked their name and replied, “Mickey Mouse". The council will ask the head teacher whether they know the person, and it can be tackled in the school in that way. The head teacher will at least be aware that that person has committed an offence, even if the matter is taken no further.

412. Some councils are thinking about issuing fixed penalties to younger people. A great deal of caution must be taken in that area. Education about litter in schools should be the first port of call in tackling the issue with young people.

413. The Chairperson: I agree with your last point. However, I take exception in that primary schools and the first and second years of secondary schools do a lot of good work to send the right message to children about litter. There is a gap, as there is in everything, but it cannot be denied that good work is being done. It is something that we need to look at. At what age can someone receive a fixed penalty notice?

414. Dr I Humphreys: I may be wrong, but I think that the proposal is that anyone over 10 years old can receive a fixed penalty notice.

415. The Chairperson: OK; I just wanted clarification.

416. Mr W Clarke: I will back you up and say that young people are more responsible than older generations. A lot of good environmental education is given in schools. It is wrong to say that it is young people who drop chewing gum and litter. I know from my own child that children are very responsible about litter and chewing gum.

417. The Chairperson: Alex Ferguson may have set the tone, given the amount of chewing gum that he chews. I wonder where he puts it. [Laughter.]

418. Thank you very much for your presentation. I look forward to incorporating some of your views into the report.

419. We will now have a briefing on the Clean Neighbourhoods and Environment Bill from children and youth groups. I welcome Linda Moore of the Children’s Law Centre; Koulla Yiasouma of Include Youth; Elaine Conway of Children in NI; and Jacqueline O’Loughlin of PlayBoard. Are you happy enough with that pronunciation?

420. Ms Koulla Yiasouma (Include Youth): I am; thank you very much.

421. The Chairperson: We will give you 10 minutes for a presentation and then open it up to members’ questions. Please be gentle with the members.

422. Ms Yiasouma: Likewise, I ask the members to be gentle with us. I will begin by thanking the Committee and saying how pleased we are to be here giving evidence. I am the director of Include Youth. I am here to act, if you like, as mistress of ceremonies. I will briefly introduce some of our concerns about the Clean Neighbourhoods and Environment Bill before handing over to Jacqueline O’Loughlin, chief executive of PlayBoard and Dr Linda Moore, policy adviser for the Children’s Law Centre, who will go through some of our substantive issues. Elaine Conway is here as policy manager for Children in Northern Ireland, and she will get involved in the question and answer session.

423. Like all right-minded people, Include Youth agrees that creating a safe and clean environment is vital for the well-being of all citizens of Northern Ireland. Although we support the proposed legislation’s broad aims, we struggle to see how some of its actions — as they relate to children, young people and their families — will achieve the desired outcomes. We believe that they run the risk of further alienating, even criminalising, some of our already excluded young people.

424. Our broad concerns include how little recognition there is in the Bill of the adverse impact of gating orders on children and young people, and that there is no recognition of the impact of the issuing of fixed penalty notices to children, young people or their parents. The legislation seems to be a lift from England and Wales; it does not seem to have been sufficiently Ulsterised. It does not pay due regard to the specific circumstances of the North of Ireland. As such, it has missed an opportunity. The legislation and the Department of the Environment (DOE) consultation that preceded it take little cognisance of some of the excellent activities by councils and other agencies that divert and prevent littering, graffiti writing and other antisocial behaviour by children and young people.

425. We were really disappointed by the response from the Department of Environment to the concerns that we expressed in response to its first consultation. The substantive points that we raised remain unanswered. The consultation summary paper does not sufficiently represent the number of objections that we raised and little attempt seems to have been made to take account of our points. We are unsatisfied with the way in which some of the issues were addressed, particularly in regard to the best interests of the child and due process, which we believe contravenes article 6 of the European Convention on Human Rights.

426. The Bill does not specifically address some of the criminal justice legislation as it relates to the fining of children and young people. There is no recognition that imposing a fine on or issuing a notice to a child may have child protection or safeguarding implications. The Bill does not seem to take cognisance of the impact of fixed penalty notices on already economically and socially deprived families. It does not sufficiently consider how punitive actions may result in the criminalising of children and young people. The legislation has absolutely no recognition or celebration of effective alternative approaches that are already quite prevalent in some of our communities.

427. Before handing over to my colleagues, I want to say a few words around fixed penalty notices. There is evidence from England and Wales of a marked increase in the number of children and young people being drawn into the criminal justice system through the use of pre-court sanctions. I understand and we recognise that fixed penalty notices are not a criminal conviction; however, breaching them is. We ask the Department to supply us with evidence that suggests that such a form of action actually reduces graffiti, litter and antisocial behaviour by young people.

428. As I have said, we are aware of many alternative projects and actions by council officials that tackle such issues effectively, and we urge the Department to undertake a review of those innovative practices with the aim of replicating them across Northern Ireland. Much is to be learned from an approach based on engaging the community, in partnership with children and young people and the public, and coming up with agreed solutions that need not include the punitive steps suggested in the Bill. I think that I speak for all four organisations when I say that we would be more than happy to assist in that process and to contribute any information that we have.

429. Finally, we appreciate that the Department talks a lot about guidance in its response to the consultation. We urge that key stakeholders — I have talked about some of those already — are engaged, even at this early stage, to help to develop that guidance so that it recognises the rights of children and young people and ensures clean and safe neighbourhoods.

430. Thank you for listening to my brief introduction. I hope that it was helpful. I will hand over to Jacqueline to talk a bit more about other things.

431. Ms Jacqueline O’Loughlin (PlayBoard): Thank you. Good afternoon. I am the chief executive of PlayBoard, the lead agency for children’s play in Northern Ireland. I, too, thank the Committee for inviting us along to give our views on the Clean Neighbourhoods and Environment Bill. I will draw on a broad range of research that is pertinent to PlayBoard’s expertise in children’s play. My input will consider the potential implications that Part 1 of the Bill, namely gating orders, may have on children and young people’s mobility, territoriality and play and recreation affordances.

432. The Bill gives councils new powers to make gating orders to deal with problem alleyways. It states that gating orders will be used predominantly to address crime and antisocial behaviour in built-up areas. As Koulla highlighted, the practice of closing off alleyways is not a new concept. It has been in operation in England for many years. To date, the adult-led evaluations of gating order schemes — I emphasise that the evaluations have been adult-led — highlight that, in some circumstances, they have proved to be a useful tool in preventing problem behaviour. However, conversely, it has also been noted that, in some cases, the public have been denied a valuable right of access with insignificant benefit to security.

433. From an adult perspective, we all absolutely sign up to the prevention of crime and antisocial behaviour and the improvement of our local neighbourhoods; those aims are to be commended. Improvement in the community environment raises many issues that are of critical importance to both children and young people and other residents. I must point out that adult’s views and perceptions of what constitutes a pleasing neighbourhood can differ somewhat to those of children. Bear it in mind that children spend a lot of their time hanging out and playing with friends in their home neighbourhood. The local environment can, therefore, have a major impact not only on health and well-being but on the ability to foster positive community identity and a sense of belonging among children and young people.

434. PlayBoard wants to highlight that the Executive’s play and leisure policy framework and the accompanying implementation plan, which is in development, has a number of core themes that are pertinent to the Bill, namely champions for play, places and spaces for play and access to play. A play space goes beyond its boundary. It is not just about fixed playgrounds and destination parks but the whole community. We need to consider the importance of children’s ability to roam and to have free access in their home environment. Children and young people should be able to travel actively and independently when visiting friends or going out to play. Play and active travel are interwoven and sometimes indistinguishable.

435. The significance of children’s play in developing resilience and well-being is widely documented; there is a body of research to support it. Therefore, it is essential that local communities and those who are involved in community planning recognise the way in which children and young people participate in play and recreation and that they appreciate the environmental conditions that promote such participation. For example, children and young people naturally seek out places where they are not scrutinised by adults. Alleyways and back entries are some of the places that present them with that opportunity.

436. It is perceived that gating orders will deter crime and antisocial behaviour. However, although they will improve crime rates in some areas, so-called nuisance behaviour among young people will not be put right by the mere installation gates or barriers. In fact, children will see that as a challenge or simply congregate somewhere else. Society could deem as antisocial the behaviour that they engage in at that other place, whether it is play or another activity. The root cause of children and young people being labelled as disaffected and antisocial must be addressed to reduce and eradicate any perceived annoyance caused. Therefore, it is necessary to protect children and young people’s spaces from adult encroachment. Furthermore, when environmental conditions severely impact on children’s ability to participate fully, more direct action may be required to restore favourable environmental conditions for children and young people’s self expression.

437. Children and young people’s activities should not be polarised but incorporated into wider environmental-planning processes. Restricting the youth of the highway can have a negative impact on children and young people, not least those with disabilities. Consideration must, therefore, be given to the requirements of the Disability Discrimination Act 1995. Children and young people are more likely to regularly use shortcuts, and alleyways provide those, giving access to schools, shops and bus stops, and so on. Furthermore, parents use those back alleyways and rely on certain routes to ensure that their children are away from busy traffic and arrive at school safely.

438. Positive environments that offer safe opportunities for physical play and activity can strengthen community identity and foster a sense of pride and belonging in our children and young people. It is worth reflecting on the idea that urban planning and public health have joint roots. Looking back, we designed cities to try to reduce mortality rates and eradicate disease. Today, the issues are different, but no less important. We have huge levels of childhood obesity to deal with, as well as severe mental health problems, a myriad teenage suicides and child poverty. All those ultimately affect life expectancy. PlayBoard suggests that there is a strong incentive to find new and more collaborative ways of working that draw on community expertise, primarily those that are affected by policy decisions.

439. Children and young people, as well as those with experience of the built environment and the health sectors, should be consulted prior to the implementation of gating orders. In many of our neighbourhoods, children and young people have limited opportunities for play and leisure, resulting in a loss of enjoyment, freedom, confidence and independence that such activity brings. PlayBoard is concerned that alley-gating would further restrict and displace those opportunities.

440. We are aware that the Minister for Regional Development, who has policy responsibility for this legislation, agrees with the proposals set out in the Bill. However, we offer the following observations for the Committee’s consideration and deliberation: although we acknowledge the genuine concerns of residents about crime and antisocial behaviour, the concerns of children and young people about the potential displacement of their play spaces because of the proposed introduction of gating orders must also be recognised. One should not be negated in favour of the other.

441. We recognise the rationale that underpins the Bill and understand that gating orders may have attractive benefits. It is proposed that they should be used as a safeguard against crime; equally, however, we recognise the potential for abuse of the legislation. We suggest that the rights of children and young people must also be safeguarded, which the introduction of the Bill has the potential to harm.

442. A gating order must give consideration to compensating children and young people for the displacement and restriction of play spaces previously accessible to them. We are not suggesting that every neighbourhood has a fixed play park but a wider appreciation of the need for the environment for play.

443. Other mechanisms also need to be explored for addressing community problems, such as community development methodologies, play work, youth work and outreach programmes. We need to work with planners to create informal shared spaces that can be enjoyed by all residents. The proposal for gating orders may well be a catalyst for positive change in the environment and in reducing crime. However, it must be recognised that other progressive changes will also be required to address the issues and potential difficulties that the introduction of gating orders may cause, such as a lack of physical resources leading to social exclusion and increased polarisation of our children and young people.

444. The introduction of the legislation will require an increased level of co-ordination and ongoing commitment between policymakers at departmental and council levels to ensure that its implementation is maximised. The Clean Neighbourhoods and Environment Act 2005 has been in operation in England and Wales since 2006. We suggest that there is a need to reflect on the positive and negative lessons from that. Studies have highlighted that there has been a negative impact on children and young people.

445. We are concerned that public perceptions of crime and antisocial behaviour, along with the so-called demonisation of children and young people in the media, may fuel community expectations and a desire for gating orders. We suggest that some parameters and definitions should be established to assist clear evidence gathering to support successful implementation.

446. Finally, PlayBoard strongly advocates that the Department of the Environment respond to and engage with children and young people as equal citizens and primary stakeholders in their neighbourhood environments. It is essential that all residents feel a sense of ownership and can deliver on the issues that affect the local community in ways that respect and value their contribution.

447. PlayBoard asks the Committee to consider how the Bill would impact on or support cross-departmental working and other social policy frameworks and initiatives such as those supported by the Office of the First Minister and deputy First Minister, including the programme for cohesion, sharing and integration, the child poverty strategy, the play and leisure policy, A Fitter Future for All and the community safety strategy. Although that list is not exhaustive, it is simply illustrative of the perceived connections with the Bill.

448. Linda will now make a brief presentation.

449. The Chairperson: I am mindful of the time available, but I will give her an opportunity.

450. Ms J O’Loughlin: You should have seen how much we made her cut down.

451. The Chairperson: I can well believe that.

452. Dr Linda Moore (Children’s Law Centre): Thank you for the opportunity to address the Committee. I will talk about three issues, giving each one minute: equality screening, the consultation process and fixed penalty notices.

453. The draft Bill was screened out in the initial consultation phase and was deemed not to require a full equality impact assessment (EQIA). The children’s organisations are extremely puzzled as to how and why that happened. In the screening exercise, the Department concluded that there was no indication or evidence that any of the section 75 groups have different needs, experience, issues and priorities in relation to the Bill. However, as you heard from my colleagues, children’s organisations believe that children do have different needs and experiences in relation to the issues that the Bill raises.

454. Research supports that. For example, the Committee might want to look at research by Ursula Kilkelly and her colleagues for the Northern Ireland Commissioner for Children and Young People (NICCY) in 2004 and research recently published by Siobhán McAlister and her colleagues in Queen’s University.

455. In its response to the initial consultation, the Department for Regional Development agreed that section 75 screening should be carried out on gating orders because of the potential adverse impact on children. Our conclusion is that the Department is in breach of its section 75 duties and that it has failed to provide adequate evidence of the basis for its decision to screen out the Bill. We do not understand it.

456. I turn to the consultation process. We draw the Committee’s attention to the extremely limited consultation with children’s organisations during the initial consultation process, despite the clear impact on children and young people. There were very few children’s organisations on the consultation list. The fact that only three children’s organisations responded — and those were late — shows not that we are not interested or that we are inefficient, but that the children’s organisations did not know about the Bill or its implications. There was very little knowledge about it.

457. We also draw the Committee’s attention to the statutory obligation inherent in section 75 to consult directly with those likely to be affected by a policy. We argue that that means children and young people. We consider that they are one of the groups who will be most directly impacted upon by the introduction of the Bill, and we would like to know what steps were taken by the Department to engage directly with children and young people. What child accessible documentation has the Department produced? We are not aware of any.

458. Koulla talked about the development of the guidance. There needs to be comprehensive engagement with all interested parties and stakeholders, including children’s rights organisations and children and young people.

459. Koulla also touched on the subject of fixed penalty notices. In our responses to the initial consultation on the Bill in April, children’s organisations were in agreement and the consensus was that the proposals regarding fixed penalty notices were not appropriate if applied to children. We outlined the many reasons for that, including the disproportionate impact on children and their families in areas experiencing poverty; the inability of many children to pay fixed penalty notices, particularly under 16s, who generally do not have access to independent money and who will have to ask their parents to pay it; the potential net-widening and criminalisation of children and young people, which Koulla mentioned; and children’s immaturity, relative to adults, which may mean that they do not fully understand the consequences of the legislation. How many children understand that it is an offence to drop litter? They may know that it is wrong, but they may not understand that there is the potential that fixed penalty notices may lead to custody.

460. We note that the Department has accepted that a different approach may be needed for children and young people for fixed penalty notices. We welcome that and we would like reassurance that they will not be used on children.

461. The Chairperson: Thank you very much for your presentation. It is rare to be sitting as a Committee with four women staring down at us. I see one of my constituents in the Public Gallery; you are very welcome.

462. Earlier, we discussed the amount of legislation to be scrutinised and the work programme for the Committee. We are keen to process this Bill.

463. I want to tease out some of the issues and work with you to bring forward amendments. I have gone through the information that you submitted, and we welcome your suggestions. I want to pick up on a few points and then we will move on to members’ questions.

464. We may have to go back and ask the Department about section 75 and the EQIA. I could answer your question very easily from a political point of view and from a party perspective. However, as Chairperson of the Committee, we will ask the Department why there was deemed not to be a need for that.

465. You mentioned the consultation. I previously had issues in getting consultation information out to as many people as possible. There are lists, and we have tried the process using advertising and by writing to different groups. People often reply to consultations late, and, through the Committee, we have afforded people an opportunity to provide written presentations and to send those in late. Are you saying that the people who you represent have had their views included in the consultation process, or have some people still not been consulted?

466. Dr Moore: A lot of people out there do not know. We have done what we can to put the word around. However, a lot of children’s organisations and other community and youth organisations do not know about the consultation and are not aware that the legislation would affect them. Also, children and young people themselves have not been consulted, and it is vital for the guidance that they are.

467. The legislation has been lifted from England. A quick search of what is happening in England would inform the Department, as I am sure it is aware, that the legislation there has had a big impact on children. Indeed, in their guidance, many of the councils in England stated that a lot of the provisions are aimed at children and young people. Therefore, organisations representing children and young people should have been included in the consultation.

468. The Chairperson: To be fair: we try to give everybody an opportunity. I will check out what the minimum and maximum consultation periods were, but I think that it was perhaps 12 weeks.

469. Ms Yiasouma: The point is we did not get it. We heard about this only through —

470. The Chairperson: I agree with you. However, to us, it is not a case of whether you are on the list or not on the list. We put the legislation out to public consultation. It is then up to people to take part. However, that is something that we will look at and ask the Department about.

471. I agree with what you said about young people’s inability to pay, which Mr Clarke brought up. That is something that we will look at as we go through the legislation. To be honest: we have to look first at the deterrent. An individual’s actions must be looked at and the process must then be taken from there. Mr Clarke raised the issue about the amount of money and whether people would be able to pay —

472. Mr T Clarke: Willie Clarke. I want it on record that that was Willie Clarke.

473. The Chairperson: I take on board what you are saying about people’s inability to pay, and we will look at that.

474. I want to talk about something that I have experienced. That is secondary, indirect experience, Mr Clarke, just to clarify, about gating.

475. Mr T Clarke: Mr Trevor Clarke.

476. The Chairperson: Yes. I pointed at you, but you had turned your back.

477. I take on board what the witnesses said about play areas. The legislation proposes measures for alley-gating. That would be an option. Alley-gating has been carried out in certain areas of Belfast and in my constituency. In an area in my town, alley-gating has been used to protect the people who live in a certain row of houses or whatever. There is a need, in some cases, for alley-gating. However, to be honest: my experience of working with young people shows me that there is a gap in how we are trying to deal with and educate our young people. I do not mean education at school, but education on littering and antisocial behaviour. We need to look at that in the round. A lot of good work is going on in primary schools and post-primary schools. I do not want to tie behaviour down to age, because it is not right to do that. However, unfortunately, in my experience, there has been an increase in antisocial behaviour in some areas. I want to find a way to get the right balance to address that.

478. I am not saying that alley-gating, as has been suggested by some people, is right. It is not a one-size-fits-all solution. We need proper consultation with all bodies, including the Housing Executive. That is the way that I am prepared to go and that is what I want the Bill to represent. The witnesses may be against that. If alley-gating is not adopted, what proposals are there to address it? If we do not agree with alley-gating, and it is for the Department for Regional Development, what can we include in the Bill to try to address the issue?

479. Ms J O’Loughlin: That is quite a broad question. I am not against the concept of gating orders per se. We object to the fact that the consultation failed to engage the whole community. There are also issues around how we categorise antisocial behaviour. Is the act of two children kicking a ball up an alleyway enough to impose a gating order? That is important, because residents can perceive children and young people engaged in their normal play behaviours to be antisocial. By applying pressure on their local authority to apply a gating order, those residents could hold sway over the rights of those children. We need to take a balanced approach. Other methodologies could be incorporated in addressing such issues, but we must explore those further. They include community development, outreach youth work, play work, and so on.

480. Dr Moore: If the Committee plans to amend the provision, it should note that one of our concerns was the method proposed in the Bill to consult about the gating of an alley, such as putting a notice in a newspaper. Well, that is great, but it does not involve children. If the Committee proceeds with an amendment, we would like it to include the need to consult with children and young people who are affected.

481. The Chairperson: Totally, and, when the issue came up in the Chamber, we asked for proper consultation. An alley cannot be gated just because some people want it to be. Freedom of movement issues are involved, and, to be fair, I take on board the play issue, but most of the children who we know would be in bed by 10.00 pm or 11.00 pm. Our issue is about noise at 1.00 am, 2.00 am or 3.00 am. That may be something that we have to look at. However, I agree that we need to look at that further.

482. We talked about fixed penalty notices, and I think that a witness who gave evidence previously said that they would be applied from the age of 10. That is something we need look at that, but I wanted your views and for you to explain what you are doing to try to get the message across.

483. Ms Yiasouma: We talked to quite a lot of the council officials who will implement those fixed penalty notices. We have not talked to all 26 councils. Of those we have talked to, not one said that this is a good idea for children and young people. I am not sure how helpful this will be, but they said that they try to use preventative or restorative approaches in the community. One council official said that it was hard enough for young people to get a job these days without a criminal record around their necks, so the official was not going to issue them with a fixed penalty notice.

484. We suggest that fining a child under the age of 16, maybe 18, amounts to a fine on their parents. That brings in a whole heap of issues, including the parents’ ability to pay and the possible consequences for a child of a letter coming through the door stating, “Because of what your wee Jonny did, you have to cough up £50 or £100". Has somebody assessed what impact such a letter will have on what the parent does to the child? We regard that as using a sledgehammer to crack a nut. There does not seem to be any appetite for it. We have to stop antisocial behaviour, but if we want to go down the deterrent line as a method of — fixed penalties would be a last resort — other existing criminal legislation and enforcement powers can be used by councils. We are not sure why we would implement this as well, without looking at some preventative, diversionary and more community-based approaches.

485. The Chairperson: I agree. However, there have to be deterrents. It is not all about antisocial behaviour. Mr Trevor Clarke wants to come in on that point.

486. Ms Yiasouma: No, it is about —

487. The Chairperson: Let us be honest: that is the impression that may be given by talking about fixed penalties and the stick approach as opposed to the carrot approach. We need to look at that when we have the opportunity to scrutinise the Bill. Ultimately, it is a deterrent. If it is an anti-litter exercise, about gating orders or reducing antisocial behaviour, whatever the case may be, we have to have some element of deterrent, and that is what we seek to achieve through the Bill. It may look, on the face of it, like we are trying the stick approach, but we are not. We want to amend the Bill so that everyone is included. There needs to be proper consultation before we make a decision on what is in the Bill and before we implement it. I know of children who got letters home from the PSNI for what were, believe me, very minor things. Those children, regardless of their age, are on the record now. It is something that we need to look at.

488. Mr T Clarke: Speaking as a father of three children, I hate the fact that we are sitting here making excuses for young people.

489. The Chairperson: Excuse me; no one is making excuses for anyone. We are here to put proper legislation in place. We have to look at everything that comes down the track. It is not about excuses.

490. Mr T Clarke: Alley-gating is needed because of antisocial behaviour. If we do not create a deterrent, antisocial behaviour will continue. I hope that the legislation is brought in. If a letter from the PSNI ever comes through the door for a child of mine, I will pay the fine. The child will then be punished for the behaviour and pay me back through pocket money or whatever. Unless you create something that instils that approach in the home, you will not educate children. If we are going to exempt anyone under the age of 18 from punishment, we do not need alley gates. It is the younger people who cause most of the problems and nuisance in each of our constituencies. Elderly people are living in fear because of the activities that are going on at the back of their homes.

491. We need to create legislation that gives young people an incentive not to congregate in an area or get involved in antisocial behaviour there. The only way to do that is to identify them. Some parents do not know where their children are, but most responsible parents would not let them behave like that anyway. If the fine comes through the door and wee Jonny is identified, any responsible parent will take action. We are being very woolly and protective of young people. This is only an observation, but it is a criticism of the witnesses. For people who represent young people, some of the comments —

492. The Chairperson: No one is being woolly. We are allowing these people an opportunity to put across their views, which is the proper process.

493. Mr T Clarke: I am disputing that.

494. The Chairperson: How we deal with it will be taken in the round. You are right that a stick approach is needed, which is why I mentioned alley-gating. I have experience of it.

495. Ms Yiasouma: Mr Buchanan is really hearing some excuses from me this afternoon. [Laughter.] We are not suggesting for a minute that the children or young people who litter, graffiti or take part in antisocial behaviour should be allowed to do so with impunity. We are saying that these proposals are not the best way of dealing with the problem. As a parent and citizen, I am as interested as anyone else in having a safe, happy, quiet life for me and my children. Having read some of this stuff, I am not convinced that it is the best way forward.

496. We need to use terms such as “last resort" and “exhausted all other avenues". There are a number of other things that we can do to deter children from engaging in antisocial behaviour. You talk about parents paying fines and responsible parents. I have yet to meet a parent of any child, particularly a child with who Include Youth works, who does not want to be responsible. The problem is that some parents are struggling with how to parent their children, and they do not have the means to pay fines. We need to consider whether we are pushing people down a road that alienates them. We want the children and young people involved to realise that what they are doing affects a number of other people and to ask themselves what they need to do to stop it. We are definitely not saying to let them get on with it and that it does not matter who they annoy.

497. Mr T Clarke: Jacqueline said that she was not against alley-gating, but the first action point in the summary of your presentation states your opposition to gating orders. I do not know how you can say that you are not against alley-gating if your first action point states that you are. The cost implications mean that gating orders are not something that any council or other authority goes into lightly. I have been involved in a case recently that has involved the police, Roads Service, the Housing Executive and the council to try to deter young people from getting involved in antisocial behaviour.

498. However, in the words that you have just used, it is a last resort. They feel that they have to consider alley-gating, because they have exhausted all other avenues. The young people are not interested in being moved on and are not deterred by other measures, such as the removal of trees and improved lighting. I was amazed to hear today that Belfast City Council spends £500,000 a year administering alley-gating. I would have thought that if all 26 councils were here, they would say that they do not want alley-gating because it costs too much money; they only do it as a last resort.

499. Jacqueline, you said that you were not against it, but you did say in your presentation —

500. The Chairperson: It is a summary of the four submissions, to be fair. That is why I said at the start that I did not want to go down the road of discussing some of the comments. Some of them call for a halt to legislation; that is not a route that we want to go down. You have heard both arguments. We are looking for proper consultation. Mr Clarke is right. A similar thing happened in my own constituency; we went through all the proper the processes, and alley-gating was the last resort. That is all that I am saying. Councils do not close off any areas lightly. We will move on.

501. Mr McGlone: Thank you for coming to the Committee today. You raised a number of issues, such as a lack of consultation. A number of organisations have not been consulted; clearly, we would like to hear which organisations those are. You mentioned some negative experiences of the legislation in Britain. I would like to hear what those are — I do not mean today, you can forward it to us — so that we can learn from the negative experiences, if there are any.

502. It is unfortunate that we have moved into an area of complete negativity, with the demonisation of young people, which was referred to earlier, and so on. Alley-gating is done to prevent crime and antisocial behaviour. I assume that there would be an extreme test of reasonableness in the approach to it. It is not all about children: there are the druggies and winos and all that associated with the problem. Although youngsters get a bit out of hand on occasion, alley-gating would have to be done in circumstances when they were totally out of hand.

503. The Chairperson: Just for the Committee’s reference, we must be careful about reference to certain types of people. Mr McGlone, you mentioned two names. We just have to be very careful.

504. Mr McGlone: I did not mention any names.

505. The Chairperson: No, but you mentioned a type of person. You need to be mindful of what you are saying.

506. Mr McGlone: Sorry. That is fine, but that is the reality.

507. Mr Weir: I think, Patsy, it should be referred to as “sobriety-challenged issues". [Laughter.]

508. Mr McGlone: To be fair, those are the sorts of issues that have had to be dealt with in the past, along with the associated activities. That is reality. As I see it, if there is such a problem in an area that there is no other solution, the final recourse is to deal with it in that manner. I am not talking about installing alley gates everywhere, nor am I talking about demonizing youngsters in any way. I do not think that any council or local authority anywhere would adopt such an approach. If they were to close off alleys right, left and centre, we would want to question that.

509. We may get a wee bit out of sync in tightening up the extremities of something that is not going to be an extremity at all. To my mind there would be a test of reasonableness as regards alley-gating; if there is no other option, it must be done.

510. If you could relate to the Committee the experiences of negative effects as a result of such legislation in Britain, I would welcome that, so that we can learn from those experiences and feed that into our legislation.

511. Ms Yiasouma: I will ask Elaine Conway to talk briefly about the consultation process and its flaws, then we will address the other two questions.

512. Ms Elaine Conway (Children in Northern Ireland): I am glad that you have acknowledged the problems with the consultation. However, there is a real opportunity to look again at the consultation process during the development of regulations and guidance on this legislation. It seems that, in some parts of the Department, we can see very good practice in the consultations with children and young people. We know that the officials who led the work on the road safety strategy were very proactive in engaging with children and young people. If you talk to those officials, you will hear how they saw that that legislation had to be adapted in response to the needs of children and young people to make it more workable and deliverable. Where there is good practice in one part of the Department, we would like to see it mainstreamed throughout it. We welcome consultation and proactive engagement with children and young people. If you recommend that to the Department, it will be welcome.

513. The Chairperson: We would appreciate it if you could send us any information that been requested.

514. Ms Yiasouma: I will send the Committee information about our experiences. I do not have it to hand.

515. Mr Weir: Thank you for your presentation. On the positive side, there was a great deal of clarity in your position, except with respect to one issue, which I want to tease out because I did not quite get your point. On the negative side, I must be honest: I fundamentally disagree with most of what you said.

516. Ms Yiasouma: And I am his constituent as well.

517. Mr Weir: We may share a constituency, but I am not sure that we are on the same planet.

518. The Chairperson: I remind members that this session is being recorded.

519. Mr Weir: I am more than happy for my views to be made public.

520. To be fair, your position has been clear. However, the only point I did not get is your concern about disability discrimination legislation with respect to gating orders. I may not have picked up what you said correctly. Can you expand on that and tell us what you are concerned about?

521. Ms J O’Loughlin: That was to do with access. We know how the legislation works, how folk must have keys and so on to operate the gates. If there are residents who are disabled, that may impinge upon their ability to do what they need to.

522. Mr Weir: This is to do with access to back alleyways?

523. Ms J O’Loughlin: Yes. We need to take cognisance of the Disability Discrimination Act 2005 when we look at the process of putting gates in place.

524. Ms Yiasouma: It is one of the sifting processes that needs to be done.

525. The Chairman: Is that you finished with your constituent, Mr Weir?

526. Mr Dallat: Thank you for your presentation. It is good to hear a point of view that challenges.

527. I am sure that you would subscribe to the whole concept of defensible space. Very often defensible space is sought to protect children. I do not want to name the town, but in the last couple of years, children could have lost their lives, as the absence of alley-gating allowed people to go into backyards and set oil tanks on fire, with the fire travelling through the roof space and the ceiling coming down on top of people. Do you accept that there are occasions when alley gating is the only option to protect children?

528. Ms J O’Loughlin: Absolutely. This is about being reasonable and taking cognisance of wider community issues. What we are trying to do is extend the Committee’s frame of reference and thinking process. We want you to recognise that children and young people are a constituent group that must be taken into consideration. We know of instances of alley-gating being used to defend play space and enable young people to go out and play. We know that that works. However, we must also reflect on the power that this gives to local authorities. There is potential for communities to want alley gates erected to counter what they deem to be antisocial behavior, but which we know is just children playing.

529. Dr Moore: From our point of view, if we were developing policy and then legislation on clean and safe neighbourhoods, we would not start with the Bill. We would want to look at alternatives to alley-gating. We know that the Committee is pushing ahead with the Bill and is keen to get it passed, but we urge members to look at the legislation to see where opportunities to include a duty to consult young people can be built in. That duty already exists as part of section 75, but we want it built into the legislation so that, when it comes to the last resort of alley-gating, the council involved has a duty to consult with children and young people in the area.

530. Mr Dallat: I am making the point that often children are very much the subjects of the protection afforded by alley-gating. For example, a single parent with three young children had her windows replaced on Friday, and on Sunday night they were broken again. It strikes me that alley-gating may offer those three children and their mother some protection. That is that.

531. I agree that it is hardly desirable to impose fixed penalties on children. However, in the past couple of months, I have been to some of the poorest parts of the world where children appreciate their environment. It caught my attention because there was no litter whatsoever. Are there better ways to cultivate the kind of culture that I have seen in other places, where children have very little going for them?

532. Ms Yiasouma: Some of that can be seen in Northern Ireland. A council officer outside Belfast told us about a boy he had seen littering outside a training college. The council officer went into the training college to talk to a senior manager. They both sat down and talked to the young person, and, it would seem, the young person recognised where he had gone wrong.

533. There are a number of similar examples. Again in Mr Weir’s constituency, the Youth Justice Agency and the council work together to help young people get involved in cleaning up. In the past year, my organisation, Include Youth, has been involved in six or seven environmental clean-up operations involving young people. So, quite a lot is happening. Nobody made them do that. We negotiated with them and supported them in reaching an understanding of their responsibility towards the environment in which they and their neighbours live, and they participated willingly. Actually, on one of the trips, the biggest whinger was the project manager, not the young people, who had a great time and left with a great sense of achievement. God, I hope that he is not listening. [Laughter.]

534. The Chairperson: Be very careful. The session is being recorded. Do not name the project.

535. Ms Yiasouma: No, I will not. The project was fine. He was brilliant really.

536. A lot of council officers wanted to make the point that, rather than being used to set up structures around fixed penalty notices, the money may be better spent on prevention, intervention and engagement with young people in their communities.

537. The Chairperson: And that is what we are looking to introduce through the Bill.

538. Mr Clarke, very quickly, we have to be out of the room before 1.15 pm.

539. Mr W Clarke: Chairperson, you do that all the time.

540. The Chairperson: I do not.

541. Mr W Clarke: You do. You tell me to be quick and you let everybody else waffle away.

542. The Chairperson: Normally, you are second or third to speak but, unfortunately, today you are bottom of the list.

543. Mr W Clarke: Thanks, Chairperson, and I thank the witnesses for their presentation, which I found very informative.

544. First, I agree that a full equality impact assessment should have been carried out. If we are to cut and paste legislation from across the water, we should at least look at the consultation process that they went through. I also agree that young people must be consulted early on this or any legislation. Particularly if we are going down the road of alley-gating, the youth outreach work should be done first. Measures should be taken such as getting youth outreach workers to contact young people and explain to them that, if their behaviour does not improve, an alley will be closed off.

545. There are bigger issues, such as underlying factors of educational underachievement, parental responsibility, broken homes and home life generally, including abuse at home. Social services should take more responsibility on a number of issues, such as why young people are out on the street to such an hour.

546. There needs to be greater understanding that much of what we have been talking is a policing issue. The police have certain responsibilities, and, at times, councils seem to be continually doing the police’s work. There is a greater onus on neighbourhood policing teams to work more closely with young people instead of demonising them. I heard it said earlier that the bother was being caused by young people, but adults cause a lot of bother in our neighbourhoods and communities as well, whether through drugs, drink or whatever else. I take on board what you have said, particularly about alley-gating being a last resort. The concept of it as a last resort should be included in the legislation.

547. Ms Conway: You hit the nail on the head when you talked about the other agencies and education. There is a need to take a holistic view of children and young people. District councils, to give them their due, have really stepped up to the plate in that regard. They are very active; I am sure that some members will be familiar with the process of children’s services planning, which operates at half-board level but actively involves district councils. There is a difficulty in seeing a piece of legislation like this sitting outside the holistic framework for responding to and dealing with children and young people. We would like a response that looks at the whole child and what is going on in the home environment, in the community and in the school and promotes early intervention and preventative work and diversionary approaches. We need to look at approaches that involve everyone by creating partnerships that can look at proportionate and appropriate responses to children and young people and ensure that the services that they need are there when they need them.

548. Ms Yiasouma: Willie Clarke spoke about policing issues. On Monday, the Minister of Justice announced a review of youth justice in Northern Ireland. Trevor Clarke talked about crime and antisocial behaviour; we hope that there will be a forensic analysis of young people’s criminal and antisocial behaviour. The review panel needs to take cognisance of some of those issues so that there is read-across to other Departments.

549. Mr W Clarke: That will help Departments as well.

550. Mr Buchanan: I just want to make a quick observation. We can talk about what the police should be doing and what everyone else should be doing, but the reality is that the responsibility lies with the parents. If parents took control of their children, we would not have the difficulties and problems that we are faced with today. The police have responsibilities, and the other agencies and Departments have a role to play. I fully support the idea of early intervention, which stops things from coming to a head. However, we must not take our eye off the ball; the responsibility for children always comes back to their parents. If they do not take that responsibility, society is left to pick up the tab that we are talking about today.

551. Mr W Clarke: I want to pick up on Mr Buchanan’s point. I agree entirely with what he is saying, but it must also be recognised that some parents cannot look after themselves, never mind their children, and they need support for that.

552. The Chairperson: I agree; there needs to be a holistic approach, and there is a collective responsibility on all of us to get this right. There is an opportunity to do that through this legislation, and we would welcome the reports and information that we have requested. We also welcome suggested amendments. We have heard a wide range of views, and to be fair to all members — even though, unfortunately, they all are male — we have all dealt with these issues as public representatives and we recognise the work that you are doing, and that you are part of the process. Thank you very much.

553. Mr T Clarke: Are there any witnesses here from the South Down constituency? Newry and Armagh and North Down are represented. I just want to reassure Mr Willie Clarke that he will get a vote.

554. The Chairperson: I can only assure you that I represent the best constituency in the North. Thank you.

11 November 2010

Members present for all or part of the proceedings:

Mr Cathal Boylan (Chairperson)
Mr Patsy McGlone (Deputy Chairperson)
Mr Thomas Buchanan
Mr Trevor Clarke
Mr Willie Clarke
Mr John Dallat
Mr Alastair Ross
Mr George Savage
Mr Peter Weir
Mr Brian Wilson

Witnesses:

555. The Chairperson (Mr Boylan): We will receive briefings from the Countryside Alliance and the Kennel Club on the Clean Neighbourhoods and Environment Bill. I know that the witnesses from the Countryside Alliance have not yet arrived, but I will invite the witnesses from the Kennel Club to start the presentation. I welcome Emily Jeffrey, senior public affairs officer of the Kennel Club, and Steve Jenkinson, access adviser.

556. Ms Emily Jeffrey (Kennel Club): The Kennel Club is the UK’s largest organisation dedicated to the health and welfare of dogs. Within its broad remit, the Kennel Club aims to protect and promote in every way the general improvement of dogs. Since the introduction of the Clean Neighbourhoods and Environment Act 2005 to England and Wales, on which this Bill is modelled, the Kennel Club has monitored the growth in restrictions on access for dog walkers and campaigned to improve the management of public space in order to balance the needs of those with and without dogs.

557. Although the Kennel Club generally favours approaches that place greater emphasis on informal management of land, it views a national framework of dog control orders as a means of ensuring consistency and fairness in managing access, provided that accompanying guidance is followed.

558. Mr Steve Jenkinson (Kennel Club): Irrespective of any changes in the law, the Kennel Club believes that the key to successful management of land with public access, while recognising and respecting all interests, is based on sound practical implementation on the ground. That mirrors, in essence, the Sandford principle, in that formal restrictions on access should only be implemented where any conflicts cannot be resolved by good management.

559. Unfortunately, the experience of KC Dog in recent years has been that, certainly in England and Wales, there is still a culture in some parts of local and central government that instinctively seeks to make knee-jerk, disproportionate and excessive restrictions on walkers with dogs, with little or no evidence to support them and without paying attention to the many positive aspects of dog ownership. We feel that the same attitude is also prevalent among a significant number of land managers.

560. Indeed, a lack of compliance with any access restrictions has often been attributed to alleged widespread irresponsibility of walkers with dogs. So, in 2006 the Kennel Club jointly published with Hampshire County Council and the then Countryside Agency the report ‘Understanding the Psychology of Walkers with Dogs’, a study conducted by the University of Portsmouth. Based on the findings of that study, the Kennel Club believes that, in fact, in the majority of cases access authorities’ adherence to well-established principles of good visitor management plays a far more important and influential role on compliance, hence our stance in favour of that approach. More recent research, which was part-funded by Natural England, has also shown that land and access managers have themselves inadvertently added to the conflict by providing information to dog owners that is unclear, inconsistent and misleading.

561. In particular, without good management, dog control orders can simply displace problems, pushing dog owners onto farmland and other areas where they have not been before, potentially leading to increased conflict with livestock, farmers and wildlife. The Kennel Club acknowledges that a case can be made for restrictions in certain instances, but to ensure that that makes things better for dog owners and landowners alike, we simply ask that an objective, proportionate and evidence-based approach is adopted in each case.

562. Ms Jeffrey: One of the issues highlighted in our briefing on the Bill, which has been circulated, is the need for central data collection and monitoring of the restrictions, as we feel that without a strategic overview of access provision for dog walkers it is impossible to gauge whether the use of the restrictions is effective, fair and offers good value for money.

563. The Kennel Club recently issued a wide-ranging freedom of information request to all authorities with the power to make dog control orders in England and Wales. That constitutes the first comprehensive set of data on access provision and the use of dog control orders in England and Wales to date. We believe that the Committee would benefit from knowing the findings of that research and the experience of implementing orders in England and Wales.

564. From the data collated so far, the Kennel Club has found that over 50% of respondents do not have any intelligence relating to the cost of creating those orders, such as costs relating to consultation expenses or signage. Of the respondents able to provide details of their expenditure, the mean average spend per local authority was £10,894·56. However, the detail of those costings varied significantly between councils in that a large number indicated that there were extra costs in addition to those given in the data but not included in the figure; for instance, officer time or the cost of the consultation process. A significant number also indicated that the figure given was only an estimate.

565. The highest spend by a single authority was £313,174, spent by East Lindsey District Council, though that was not a particularly outstanding amount. There was often a huge differential between expenditure on and income from dog control orders. For instance, Middlesbrough Council spent £109,461 on dog control orders and has only brought in £1,547 from fixed penalty notices. That represents a recuperation of just 1·4% of the total expenditure.

566. Redcar and Cleveland Borough Council implemented an exclusion dog control order in one cemetery and raised £37,666 in two years, which equates to around £392 a week. That begs the question of whether the dog wardens there are doing anything other than enforcing that one exclusion order. Of the respondents that had implemented orders, just over 66% carried out only the minimum statutory consultation, such as placing an advert in a local newspaper, and just under 7% claimed to have either carried out no consultation or to not know what consultation they had carried out.

567. Our position on specific types of orders is that the Kennel Club supports the use of dog fouling orders and dogs on leads by direction orders, and appreciates that there will at times be justification for the use of dogs on leads and dog exclusion orders, though we want those to be used as frugally as possible. We do not support the use of maximum number of dogs orders, as we consider them to be arbitrary. The Kennel Club understands that there may sometimes be issues regarding an owner’s ability to control a large number of dogs in public; however, that can be equally true of people with one or two dogs, rendering that particular order useless.

568. The Kennel Club believes that the other orders introduced in the Bill — the dogs on leads by direction orders and the dog fouling orders — would be adequate to deal with the potential negative consequences of anyone struggling to control a large number of dogs. However, that would not preclude establishing a permit scheme to regulate walkers of large numbers of dogs if it were thought necessary.

569. The Kennel Club is seeking the introduction of a right of appeal against the types and extent of orders implemented or an obligation to review orders after a certain period; for instance, two years. Although we envisage appeal being an absolutely last resort, we feel that it is necessary to ensure that a fair process is followed, which takes into account the needs of all access users. Under the current Bill, once orders are implemented there is no mechanism to challenge the fairness of them, even if they are clearly disproportionate to the problem that they seek to address.

570. Our concern about the proposed regime is borne out by examples of excessive uses of powers in England. For instance, Southend-on-Sea Borough Council took a decision to ban dogs from every beach in its jurisdiction during the summer, despite calls to make a proportion of those beaches available to dog walkers. Although there is no evidence of a balance being struck between the needs of those with dogs and those without in this case, there is clearly no means to challenge the fairness of the decision other than judicial review.

571. We are also seeking a requirement on local authorities to consult those directly affected, including dog owners who regularly use the affected areas. That could be done simply by providing an officer presence in parks, beaches or gardens included in the proposals, and/or by writing to or attending meetings of local dog-training clubs to publicise the orders. Again, our research shows that only 13·7% of the authorities in England and Wales that carried out consultations actively approached dog owners or training clubs and over 86% of them failed to do so.

572. The Kennel Club also wants local authorities to be required to specify the land to which any proposed orders will apply. We view that information as absolutely integral to ensuring that meaningful public consultation can take place, because without it consultees would find it impossible to give an informed response. Sadly, though, that has not occurred in at least two cases that we know of. Torridge District Council and Adur District Council, both in England, published and implemented dog exclusion orders for facilities signed at the entrance as a dog exclusion area, which is not very specific, or duly foresigned areas, which is also not very specific.

573. We believe that there should be a requirement for authorised officers tasked with enforcing legislation to hold or undergo training in dog behaviour, to enable them to adequately determine when to use the dogs on leads by direction order. We suggest using wording similar to that in the Control of Dogs (Scotland) Act 2010:

“the person is skilled in the control of dogs and has the capacity to instruct and advise others in matters relating to the control of dogs."

574. That would ensure that the orders are enforced to a fair and consistent agreed standard.

575. I thank the Committee for giving us this opportunity to make our presentation.

576. The Chairperson: Thank you very much. I am mindful that some members have to leave within the next 15 minutes, so I will give Lyall an opportunity to say a few words about some of the issues that the Countryside Alliance has with the legislation and I will then briefly open up the session up for questions.

577. Mr Lyall Plant (Countryside Alliance): Thank you, Chairman. I apologise for the timing; we were informed that we were required for 11.00 am.

578. We fully support the Kennel Club’s position. However, we have a few further problems with clause 38. We welcome most parts of the Bill and believe that it will be beneficial to the people of Northern Ireland.

579. Our main issues are with the order relating to the fouling of land by dogs and the removal of dog faeces. Our organisation fully supports the order. We believe that it will serve to maintain the standards of responsible dog ownership and encourage those who have not upheld those basic principles before. However, as evidenced in the paper by the Assembly Research and Library Services and highlighted by the Kennel Club, problems have arisen in England. Therefore, we believe that for the order to be implemented successfully there needs to be proper disposal facilities and education on dog fouling.

580. As regards the keeping of dogs on leads, our organisation is concerned with animal welfare; in this case, what is best for dogs. An adequate amount of exercise is vital for a dog’s mental and physical health. Without adequate exercise, a dog can become bored, nervous and even aggressive, which can form the beginning of a vicious circle. Exercising a dog off the lead can optimise the time available and ensure that the dog receives a higher amount of exercise. Interaction between dogs can help to prevent aggression and to teach appropriate boundaries and behaviour.

581. Countryside Alliance Ireland supports the dogs on leads by direction order. That will ensure that local councils have the power to deal with irresponsible dog owners, while allowing responsible dog owners the previous levels of fundamental freedom. If a dog is deemed to be out of control, it is reasonable for the owner to be directed to restrain the dog on a lead. The main issue here is what level of activity is deemed to be out of control. We believe that authorised officers tasked with enforcing legislation should undergo training in dog behaviour to enable them to adequately determine when to use the dogs on leads by direction order.

582. We believe that the exclusion of dogs from lands is excessive and will unnecessarily reduce the freedom of movement and the public access allowed for dog owners. If both the dog fouling and dogs on leads by direction orders are enforced adequately and adhered to, there should be no reason to exclude dogs from lands. We are aware that there will be exceptions to that; for example, to ensure compliance with European nature conservation regulations. We are concerned that by not offering guidelines to local councils on that matter, there is a risk that they will take draconian measures.

583. I will now discuss the order relating to the number of dogs that a person may take on any land. We believe in and understand the need to regulate professional dog walkers, and we support the Kennel Club’s thoughts on that. However, we believe that the aforementioned orders are adequate to contend with the potential negative consequences of dog walking. We consider the use of this order to be arbitrary and not pragmatic and, therefore, oppose it. We instead suggest establishing a permit scheme or licensing system to help to regulate professional dog walkers.

584. The order has the possibility of alienating the countryside and country sports community. There needs to be a clear exemption for working dogs and packs of hounds or beagles. Without the exemption, there is a possibility of persecuting country sports groups that are carrying out their normal activities. The purpose of the Clean Neighbourhoods and Environment Bill is not to restrict or prohibit country sports and it should, therefore, provide a clear exemption in primary legislation for any such activities. The prerogative of exemptions should not be devolved to local councils. The main issue of concern is public meets, such as on Boxing Day or New Year’s Day, where hounds gather in a public place or a main thoroughfare or cross a main road.

585. Related to the Clean Neighbourhoods and Environment Act 2005 in England and Wales, the majority of councils there have an exemption for working dogs, which is a dog that fulfils a job, and hounds. In addition, there is the issue of infringing on the rights of rural dwellers. The majority of those dwellers will have more than one dog, and a substantial number may have upward of five dogs. This order would restrict their right to pass over a public road or path when travelling between private lands. We are concerned that the devolution of power to local councils could lead to the draconian laws that have been highlighted by the Kennel Club and to a disproportionate response to the irresponsible behaviour of a minority of dog owners.

586. The Chairperson: That was a good plug for rural sports and for the Countryside Alliance. Thank you both for your presentations. Have you looked at how much it will cost for training officers in dog behaviour? Will you respond to the issue of the number of dogs and the control of dogs on leads? How has legislation in England and Wales worked? What can we learn from practice there? Is there better practice here?

587. Ms Jeffrey: We have not established the costs of that training, but we have worked quite closely with the Welsh Assembly to discuss taking forward a training programme with their officers to regulate the breeding licensing there. We are willing to do that. Obviously, there will be a cost, but the level of training needed by dog wardens is minimal. It will probably only take one day to get to grips with the key issues. We could do an awful lot more training than that, but we are talking about quite basic standards of enforcement. What was the second question?

588. The Chairperson: It is about the number of dogs that can be walked by one person. What is in legislation now and what is proposed?

589. Ms Jeffrey: In England and Wales, the Department for Environment, Food and Rural Affairs guidance recommends six dogs. It is up to the local authority implementing the orders as to whether it goes for six. We have seen cases of four, but I have never seen more than six. However, as we said, our concern is that that is quite an arbitrary way to tackle a problem that exists in a minority of cases, and we feel that it would be very difficult to enforce. We could have a permit scheme instead, if it is felt particularly necessary to regulate professional dog walkers. My understanding is that that was the original impetus for that order in the England and Wales Act, and my understanding is that there is not the same issue with professional dog walkers here.

590. Mr Jenkinson: We need to remember that, even on the wet days that we have seen recently, dog owners are out there. We are trying to encourage people to feel happy on the outside and to take exercise and do everything that is linked with the health agenda. Our concern is that we do not want to lose those things. The more proactive authorities have recognised that there are places where they need to restrict dogs, either because some people do not like them or it is inappropriate to have them in certain places, but they have offered other places for them to go, where they will be welcome and where dog bins etc are provided. There has been no need for formal enforcement, because they have just made it easy for dog owners to go somewhere where they will feel welcome. They do not want conflict either, and that has worked really well.

591. The authorities in places where it has worked best have not actually used the legislation but have recognised that dog walking is a recreational activity, like sailing, having children or climbing, and asked how they should accommodate it in areas such as public lands and state forest lands. It works in those cases, whereas, as I alluded to in my paper, where authorities have just banned dogs from all their beaches, dog owners will still find somewhere to go, because being able to exercise a dog off-lead is really important, both to the person and the dog, as my colleague was saying. If it is not managed proactively, dog owners will go somewhere where the local authority has no control. Sometimes they will go into areas that are special for wildlife, or into famers’ fields where there are sheep.

592. We do some “mystery shopper" exercises in which we ring around councils and tourist information centres, explain that we want to be a good dog owner and ask where we can take a dog for a walk at a particular time of the year, perhaps when there is lambing going on. Some of them say that we cannot take them in the park but we should take them for a run on the moors or in the fields. When the public hear those messages from local authorities, you can understand how they end up in conflict. The guidance should say that if councils want the restrictions, they must deal with the reality that those people are going to go somewhere. It is a bit like restricting parking in a town. People are still going to want to park somewhere.

593. We know that being proactive and managing the situation well actually benefits the people for whom the orders are made, but there is a little bit of denial. Sometimes we have seen that one authority will do an order and it just pushes dog walkers into the next council area. It perpetuates conflict, which is not good for anybody. The general principles are fine, but they need to be used as a management tool, not for people to just use the legislation, because that is kind of naive. People are not going to get rid of their dogs and will still need to exercise them, so councils should look at good management of where they go, rather than just trying to stop them doing it.

594. Mr Weir: Thank you for your presentation. The Chairperson covered one issue that I was going to cover. I would like clarification on the issue of right of appeal for a dog control order. How do you see that working? Who would the appeal be made to, and who would have the right of appeal?

595. Ms Jeffrey: Obviously we will wait and see whether that amendment is tabled and passed before we work out the finer details of it. We would want to look at the framework for other appeals processes to decide who the appeal should go to, but the point that we were trying to get across is that it will not be a case of someone being issued with a fixed penalty notice and appealing that. It is about appealing the extent of the order. Someone such as the Local Government Ombudsman would probably be appropriate.

596. Mr Weir: So, it is an appeal on the general principle rather than the detail of a control order.

597. Ms Jeffrey: Yes, that is what we are seeking to get included in the Bill.

598. Mr McGlone: Thank you for coming along to see us here today. I will focus on the points made by the Countryside Alliance; it is good to have you along to advocate the needs of those with hounds and beagles. Chairperson, we need to seek some detail from the Department to clarify that the Bill will not adversely affect rural sports activities, which are a rural way of life for many people, particularly at certain times of the year. Is the Committee happy enough to do that?

599. The Chairperson: Certainly, yes.

600. Mr W Clarke: Thank you for your presentation. That Chairperson covered most of the points that I wanted to make. I declare an interest as a local councillor. I agree that there should be zoning of areas for dog walking, otherwise there would be difficulty with environments such as picnic areas, children’s play parks or recreational beaches. You covered it quite well; there is a need to provide alternatives and get a balance so that dogs can be let off the lead. Responsible dog owners must be entitled to an area in which to do that. It is a natural thing for a dog to do and it is good for its well-being. I agree with that, and I think that most points were covered.

601. The Chairperson: If no other members have any questions, I will thank the witnesses for their presentations. I will just say that, Lyall, I have a different point of view: I think that you should be able to jump over the gate and away you go, as long as the dog is well trained and well looked after.

602. Mr Weir: But what does the dog do? [Laughter.]

603. The Chairperson: However, you are correct; you have highlighted an issue that might arise from the Bill, regarding freedom of movement, particularly in the countryside. I know that we talked about that previously, Emily.

604. Just for reference, the dog generally jumps over the ditch while I get over the gate.

605. Mr Plant: Thank you, Chairperson. Just to follow up on Willie Clarke’s point, in north Down most of the children’s areas are separated-off with railings. For example, Donaghadee commons is a fantastic spot. It has a beautiful park for children that is separated-off with railings, and outside that responsible dog owners can walk their dogs on or off leads, and there are enough blue bins around for people to use. However, there is a problem with dog fouling because there are people who come out at night or early in the morning and do not pick it up. As a responsible dog owner, when I walk in Donaghadee commons, with my bags in my pocket and my dog on its lead because he would swim to Scotland and back otherwise, I do not like it when irresponsible people leave dog faeces and somebody walks past and looks at me as if my dog did it.

606. The Chairperson: You must explain to me what that commons is; we would not see that round Armagh district. Once again, thank you very much. We will take on board your comments about the Bill.

607. Mr Jenkinson: Thank you for your time.

608. The Chairperson: We will now receive a briefing from Mr Tom Ekin on the Clean Neighbourhoods and Environment Bill. A submission has been provided and is included in members’ packs. Mr Ekin, you will have between five and 10 minutes to make a presentation, after which I will open up the session to members’ questions and comments.

609. Mr Tom Ekin: Thank you, Chairman. I do not know what information is included in member’s packs or whether the submissions that I made to various people have been provided. However, if members have read my submission, they will have detected a sense of urgency about the need to get on with things.

610. I am in business in the private sector, and I make decisions fairly quickly, some of which are right and some of which are wrong. However, by and large, I get 55% of them right. My attitude is to simply get on with things. For my sins, I am also a councillor in Belfast City Council. However, I am not speaking as a councillor but as a taxpayer largely. I am speaking as somebody who has seen documents coming through Belfast City Council for the past five or six years. I used to read those documents, but I stopped doing so, because I became totally fed up and bored with them. I am not going to waste my life reading that stuff. We must make decisions and change our attitudes in order to get things done here more rapidly than before.

611. As an agitated taxpayer, I recently asked the question: will this legislation be in place before next May? If it is not in place by then, I have been told that it will be delayed until the next mandate starts. However, if that were to happen, I would get very annoyed and would condemn it as a waste of taxpayers’ money and of the powers that were meant to come with devolution. It would drive most of us insane. I, therefore, urge you to get it completed sooner rather than later. When I ask whether the legislation will be in place by the end of this session, I get statements such as — [Interruption.] My apologies; I tried to switch off my phone.

612. The Chairperson: Somebody is phoning to let you know that we are going ahead with this.

613. Mr Ekin: I am sorry. It is a new phone; I lost the last one. I apologise, because that is unacceptable behaviour.

614. I was recently told that the Assembly endeavours and hopes to get the legislation in place by the end of this session. That is unacceptable; it must be in place. Somebody must set the date by which that should happen, and perhaps that person is you, Chairperson.

615. I will now deal with a couple more issues. These are general issues; I do not know the detail, because I got fed up looking at the detail three years ago. We must learn from other councils’ experiences of the activities that they have carried out and the problems that they have encountered. Let us not have laws that counter that.

616. I am thinking of a couple of specific issues. I told city council that ownership of buildings seems be an issue, and it needs to been redefined. We must have open enough powers that enable us to say that the person who is perceived to be an owner is the owner, because then we can start to act. It must be remembered that the review of public administration (RPA) was meant to give councils a lot of powers. Perhaps we will now get the son or daughter of RPA; I do not know. However, something will be put in place, and we must ensure that that gives councils the powers to address the things for which councillors are being blamed.

617. The other day, I spoke to somebody in the street who said that a particular problem was the council’s fault. However, from my inside knowledge, I knew that it was not the council’s fault but somebody else’s. We must move on. Some time ago, I was particularly irritated when somebody dumped what looked like derelict vans in the middle of Belfast. However, nobody could get any of the Departments to respond. City council, the police and environmental health could not do anything about it. Eventually, out of a sense of great annoyance and the fact that people were shouting at me in the street and asking me what we were doing about it, I went to the Department for Social Development (DSD) and said: “I am going to go public with this and annoy the hell out of you". The city council could not do anything; the councillors just had to sit and look on. This legislation has to give the powers to the people who are allegedly in control of an area.

618. Another simple answer is to get the responsibility and penalties where they should be. My neighbours are all retired and, as you guys know, retired people are all blooming well pains in the neck, because they are the most agitating. However, they are dead right in what they say. Belfast city centre is a mess, and the Streets Ahead project is meant to be going ahead. However, Belfast City Council does not have the rules to penalise the people who are responsible. DSD is responsible for caravans. That is an unclean and unsafe neighbourhood. Everything is against it, but nobody seems to be able to take responsibility.

619. I have travelled the world and have seen places where there is fly-posting and places where there is no fly-posting. I tried to get the rules on that changed some years ago, but Joe Drew of Roads Service stopped us. That is not a surprise; Roads Service seems to stop a lot of things. Why can we, as the city council that gets blamed for those things, not take instant action? The last bit of legislation that I read suggested that we will go after the person who hangs up the poster. Does anybody ever see those people? I have seen one: he was bigger than me, so I did not say anything. The beneficiary must pay, and the council must not pussyfoot around and impose £10 fines or whatever. Eamonn McCann makes a lot of money out of the projects that he advertises. His posters need to be there for seven days.

620. The Chairperson: Be very careful when mentioning names.

621. Mr Dallat: He will not mind.

622. Mr Ekin: He will not mind because he was willing to help —

623. The Chairperson: I certainly mind.

624. Mr Ekin: The person who benefits most from the posters needs them to be there for about seven days to maximise the effect. That is fine. The last time that I saw any documentation, we were talking about giving 14 days’ notice and then chasing the guy who used the paint. Roads Service stopped us having a process to regularise that. I saw a system in Halifax, Nova Scotia a long time ago. People who want to have commercial events there can organise them, and people who want to have charity event such as a bring-and-buy sale can do that, but it is controlled. We do not that, and, when I last looked at the legislation, it did not give us the powers to regulate that, to override Roads Service objectionables or to chase after the beneficiaries.

625. I want to raise another appalling example. I do not know how many members know the Lisburn Road, but there are about three derelict sites there where buildings have been half pulled down. It is a total mess. Can I get anybody to take responsibility to fence it off or close it off? No. Can the city council do it? No. Will the Department for Regional Development (DRD) do it? No. Will the owner? No. The owner claims to be in liquidation or administration, and nobody will do it. Who takes responsibility?

626. My final point is that I could not see a catch-all clause in the Bill. I know that the legal people will say that we cannot have such a clause, but councils get blamed for everything. I, as an elder citizen, get sworn at for not moving things forward and asked whether I can do anything about certain issues. The legislation will never be perfect. People will always find ways round it, but it is better to have an imperfect law now than a perfect one some time. I do not know when that would be. We will never get it right. Therefore, I urge the Committee to take on board those general ideas to get responsibility pushed into council to give them the flexibility to look after the areas for which they are perceived to be responsible.

627. The Chairperson: I am glad that you want legislation to be put through. I have listened to some of the issues that you have mentioned. All public representatives, especially those on councils, have had the same issues in their own areas.

628. In the work programme for this Committee, we are sitting with four Bills. I think that we are finishing off scrutiny of two at the minute. As Chairperson, I would like the support of the Committee to push that legislation through in this mandate. The Clean Neighbourhoods and Environment Bill is one of those Bills, and we are going through it. I think that it is a good Bill. It will not be perfect, but we have an opportunity in this Committee Stage to try to address some of the concerns that have been raised about it.

629. You raised the issue of fly-posting, which we have all seen and suffer in our constituencies. Are you suggesting that an official area should be designated for that? I know that you highlighted the fact that it is a cross-departmental issue, involving, for example, DRD. We have to tease all that out and see how we will co-operate and work with the different Departments to deal with that issue. Do you believe that a designated area is way of addressing the issue of fly-posting? Is it a way forward for councils to pick an area outside a town and erect a hoarding with planning permission for people to advertise on it?

630. Mr Ekin: It is a way forward but, being pragmatic, designating one site in one town or one area is probably not practical. What I saw in Nova Scotia was several limited areas where notices could be placed and were removed periodically by the council. However, I also saw notices pinned to trees and on walls. So, I would not say that it is enough to have just one specific site.

631. The Chairperson: Whether it is one or three or four, I am only asking whether you think that it is a way forward for councils to take responsibility for undertaking such a scheme.

632. Mr Ekin: I believe that that is way forward, yes, where it is a controlled site.

633. The Chairperson: OK, thank you. You also mentioned derelict buildings, which is an issue that concerns many members. I know that it is raised in this Bill and that it is cross-departmental. It is an issue that the Committee certainly wants to look at.

634. Mr McGlone: Mr Ekin, thanks very much, you are a breath of fresh air. I am glad that there is someone outside this room who appreciates the frustration that we feel, as elected representatives who spend day after day doing line-by-line scrutiny of legislation, just for it not to be implemented by a Department for whatever reason. On many occasions all we get are reasons why not to implement legislation. Coming from the private sector, you will know that that is not the way to run a business or an organisation. So thank you for being absolutely frank with us, and I hope that, in return, we will be absolutely frank with you.

635. We discussed the matter earlier and I — along with other members, I am sure — am deeply concerned about the incapacity of the Department to implement legislation that is enacted but is sitting on shelves gathering dust. We are seeking assurances on that. Earlier today, we discussed how we want a Department that does something and tries to get legislation implemented on the ground. We are picking up from constituents their frustrations about things not happening, just as you are picking that up from the grass roots, which may be a wee bit remote from the Department on occasions. So, we can lick thumbs on that one, and thank you for your breath of fresh air. Perhaps you could get a job over at the Department.

636. Mr Ekin: No thanks.

637. Mr McGlone: You could get a few things moving on.

638. The Chairperson: Mr Savage, do you have a question? You are very welcome to the Committee.

639. Mr Savage: Thank you very much, Chairman.

640. Tom, I am glad that you are trying to get fly-posting dealt with. We have the same problems in the Craigavon Borough Council area. Councils having the power to do something about it is long overdue.

641. I am very interested in what you said about how we deal with derelict land, deliberately burned buildings and rubble on the sites of demolished buildings. That is a major problem. A couple of examples come to mind of sites where buildings have been burned down. The people who own them want to do something about it and replace the buildings that were there, yet they cannot get planning permission to do that. Some sort of legislation has to be put into place for people who own such sites and want to tidy them up and bring them back into use. As it stands, such people cannot get planning permission and cannot do anything about it. Something has got to be done about it, and I am glad that you raised it today.

642. Mr Ekin: I think that Craigavon Borough Council should be empowered to say to the owner of the land — assuming that it was they who demolished the building — that they must tidy that place up. I do not know why that is not in the legislation. Surely, owners of land have a responsibility to look after the land and keep it kempt. I recall that we once had to use the health and safety legislation to deal with a derelict site, but we had to find a couple of rats on the land first. That was daft. It was a beautiful country park, and houses were knocked down. There was a lot of rubbish there, and people came and burned the remaining bit that had not been knocked down. There were fires and a lot of junk was dumped there, but we had to wait until we found rats before we could call in the health and safety people. That was a nonsense. As soon as the building was knocked down, the council should have been able to tell the owner that they had to clean the site within a short time and, if not, the council would clean it and bill them for it. Perhaps that is pie in the sky.

643. Mr Dallat: Thanks, Tom, for your presentation. I would like to better gauge the depth of your feelings on these matters. Will you give us an indication of what you mean by a fine: is it £50, £500, or £1,000? At what level would you pitch the fine?

644. Mr Ekin: I have had difficulty with that, because what I regard as a punitive fine other people regard as something like an execution. I do not believe that £50 fines work. It also depends on the size of the site. There are two sites on the Lisburn Road that have been in a bad condition for a long time. The guy who created the mess probably spent around £5 million buying the site, but he is now in administration. I would have thought that he should be fined a couple of thousand pounds for not blocking off the site, because it is defiling the whole street. The house that I talked about a moment ago in Barnett’s Park —

645. The Chairperson: There are certain buildings in Belfast that may need work done: put it that way. Be very careful about mentioning names.

646. Mr Ekin: I will get into trouble.

647. The Chairperson: You are talking about certain buildings. To be honest, it is across each area, it is not just in reference to one thing.

648. Mr Ekin: Sorry, Chairman; I get a bit excited. Just keep your thumb on me.

649. I just do not know what the fine should be, but I know that a slap in the wrist is no use with most people; they will either laugh at it or ignore it. I would have thought that, in this day and age, anything less than £1,000 is not going to get anybody’s attention.

650. Mr Dallat: Is there a need to redefine what fly-posting is? Like everything else, it has moved on. In the old days someone took a bucket and posters were slapped up everywhere. People still do that, but councils have become quite sophisticated in how they fly-poster; they have expensive attachments on every lamp post. If councils festoon a town from one end to another with things promoting festivals and flower shows, how can you ask other people who may not have the same resources to stop fly-posting of, perhaps, a more menial type?

651. Mr Ekin: I do not know. I think of the “Merry Christmas" signs in Belfast at the moment: are they fly-posters or not? If there are designated sites and posters are put on the designated sites, that is it. Other than that, people have to get planning permission for signs.

652. Mr T Clarke: Tom, you said that you are in business: what sort of business are you in?

653. Mr Ekin: I have developed the fastest-growing high-tech business park in the world: Weavers Court Business Park. It is a scientifically based, high-tech facility in Sandy Row.

654. Mr T Clarke: Do you have tenants in that?

655. Mr Ekin: Yes.

656. Mr T Clarke: I am sure that those people have to advertise their business. How do you think that they would feel if there were official hoarding signs and others were getting free advertising and hoarding space? What are your thoughts on that?

657. Mr Ekin: I know that, in some places, people have to pay for fly-posting. Some years ago I worked with another guy on a scheme that he was to organise and manage, and people would pay for him to put up decent signs.

658. Mr T Clarke: Do you think that people will pay for it?

659. Mr Ekin: People who fly-post should pay for it. Indeed, if they put posters on official sites, that will fund it.

660. Mr T Clarke: You talked about derelict sites: we will not be specific about where they are. You mentioned an example where the owner has gone into administration. However, you are still talking about large fines. How could you fine someone who is in administration?

661. Mr Ekin: First, I would like to think that it will not get to the point of having to fine the person. A fine is supposed to be preventative. To answer your question, in cases of administration there will generally be some assets left, so the fine would join the list of creditors and if a penny or 50p in the pound can be recouped, that is what happens.

662. Mr T Clarke: The main reason why people are in administration is that they bought property at the height of its value in the market and it has dropped immensely. Surely, in the scheme of things, a £1,000 or £2,000 fine for not putting up a fence is pointless against a £2·5 million debt. I assume that those who are waiting to get money, particularly the banks, will get first call. Therefore, the £1,000 or £2,000 fine will never be paid because it will never feature in relation to the value of the property. It is OK in theory to put out pie-in-the-sky ideas but, sometimes, there is no way to recoup the money. We are listening to ideas that apply in the ideal world, but we are not in the ideal world anymore.

663. Mr Ekin: Most of our life is not spent in recession. Most people who fly-post and suchlike work in a vibrant, working economy.

664. Mr T Clarke: You gave an example about a person who is in administration. Yes, we will not always be in difficulties, but many buildings are redundant because, due to financial difficulties, the owners cannot move on with projects.

665. Mr Ekin: That could be the case.

666. Mr T Clarke: More often than not, buildings are redundant because the developer does not have the wherewithal or the money to finish the projects.

667. Mr Ekin: I will give an example. If one goes through Shaftesbury Square or has done so in the past five years, one will see a building there that has been derelict and empty that whole time. Even at the height of the boom time it was a total mess.

668. The Chairperson: I am a poor old country boy. The next time that I am driving through Belfast I must have a look at all the streets that you mentioned. Mr Clarke is absolutely correct about some of the derelict buildings. At this moment in time, the majority of derelict buildings are not in that state because of a lack of planning or because of the Planning Service; it is because of the financial situation. I may seek clarification from the Department on this, but I believe that the Waste and Contaminated Land (Amendment) Bill contains some powers to allow people to go on to derelict sites. We welcome that power.

669. Mr McGlone: I have seen a number cases of site owners going into administration. As everybody in this room will know, NI Water and Roads Service retain a bond. Is there any prospect that, when an initial application goes in, the council or some agency could retain a site enhancement bond that could kick in if the development does not go ahead? If the development goes ahead, that is fine; the person will get the money back as they do from Roads Service and NI Water. However, if the company goes into administration, Roads Service and NI Water could complete the work using the retained bond. Is there any possibility of having a site enhancement bond that could be retained by the council upon application for the site? Is that an idea?

670. Mr Ekin: It is certainly an idea. I do not know how it would work, but I am open to any ideas. It is about getting the site tidied. The target is to ensure that the place is cleaner and tidier and that councils, which seem to get most of the blame for such things, can do something about it.

671. The Chairperson: I know that when people in the countryside are looking to build a replacement dwelling or a dwelling, they sometimes use certain terminology about reusing an old building for planning gain. Buildings that sit there after their shelf life has expired are sometimes used to get —

672. Mr T Clarke: That is slightly different, Chairman. The problem with most of these developments is that the developers concerned have been fairly speculative and have targeted deprived areas so that they can knock down houses and build big shops and nightclubs. That is slightly different from replacing a redundant building in the countryside with another house.

673. The Chairperson: It is not a planning issue. I was only using that as an example.

674. Mr B Wilson: I declare an interest as a councillor. I totally share all of your frustrations, Mr Ekin. We have come across all the different types of cases to which you referred. In a number of cases, owners simply allow their sites to become derelict, which attracts fly-posters and everything else. Environmental health has been trying to find some way of taking action to deal with that but, in many cases, no actions are available to its officers; they have to find rats or something like that first. That is extremely frustrating. You talked about an all-embracing nuisance clause on nuisances that cannot be anticipated. I totally agree with the sentiment but it would be difficult to legislate on that. What are your thoughts on it?

675. Mr Ekin: Like you, I do not how that would work. I do not know how the legislation could be worded to provide the freedom to do that. That is why I talked about a catch-all clause. Legal draftsmen want everything tightened so much that everything is specific, so the legal guys spend a lot of time arguing about the specifics instead of the principle. It is like that old expression: you know what an elephant is but you cannot describe it. I do not know how to get there. However, that is what I, as a taxpayer, want councils to be able to do. I hate seeing my money being squandered on fixing things that should not have been broken in the first place. By that I mean, for example, councils having to paint over fly-posters that should not have been there in the first place. That is such a total waste. I cannot answer your question. Ideally, I want open flexibility.

676. Mr Weir: I understand where you are coming from on that specific point, Tom. However, the reason why legal draftsmen want the wording tied down is because they know that whatever is specifically set out in the Bill will potentially be tested in the courts, whereas the general principles of the policy cannot be. The provisions must be legally workable and be able to survive any challenge mounted in the courts by somebody who has been prosecuted under them. Any catch-all, vague provisions would be meaningless because they would not stand up to scrutiny. Do you, therefore, accept that your proposal presents a real, practical problem?

677. Mr Ekin: I do indeed.

678. The Chairperson: Thanks for your presentation, Tom. A couple of different issues have been raised relating to the term “derelict". Obviously, some buildings out there are dilapidated and falling down, and the policies on rats and the Waste and Contaminated Land (Amendment) Bill might deal with that issue. Your point is that those buildings are not being reused, especially in the city. However, that is a financial issue. Perhaps the departmental officials who are present could look at what legislation is in place to address some of the issues that have been raised today about dereliction. Thank you, Tom.

679. Mr Ekin: Thank you for your attention.

25 November 2010

Members present for all or part of the proceedings:

Mr Cathal Boylan (Chairperson)
Mr Patsy McGlone (Deputy Chairperson)
Mr Thomas Buchanan
Mr Trevor Clarke
Mr Willie Clarke
Mr John Dallat
Mr Danny Kinahan
Mr Alastair Ross
Mr George Savage
Mr Peter Weir
Mr Brian Wilson

Witnesses:

680. The Chairperson (Mr Boylan): I welcome Robert Gray, Hazel Bleeks and Jackie Lambe from the environmental policy division in the Department of the Environment. We will start with clause 2, which is about exposing vehicles for sale on a road. I remind members that the clause was generally welcomed but clarification was sought on the following points: the potential confusion between the new powers and those in the Street Trading (NI) Act 2001; potential loopholes in proposals, such as parking cars that are for sale far apart; the lack of prescribed periods for objections to removals and disposals; the length of notice periods for removal and disposal — some suggested that seven days is sufficient; powers to recover costs of removal, storage and disposal; the inclusion of caravans in the definition of a vehicle; and selling a car on private property. Who wants to comment on that?

681. Mr Robert Gray (Department of the Environment): Should I go through the issues that are raised in the table?

682. The Chairperson: Yes, briefly. I will open the session up for members’ comments thereafter.

683. Mr Gray: Clause 2 is about cars that are sold on the road through commercial businesses. They can cause problems and annoyance and can blight an area. The clause makes it an offence to expose two or more vehicles for sale on a road. The clause will not target individual sellers. Therefore, a person will not be convicted if he or she can prove that they are not acting as part of a business.

684. Many views were expressed, some of which were observations. We have noted those and, if a clause has been generally welcomed, we have noted that too. The activities may not only be a nuisance to local residents but may take up valuable parking spaces; we also noted that response. Some people mentioned the need to consult on guidance; we will, of course, consult fully on all guidance. The importance of guidance and subordinate legislation came up several times. There will be full consultation on all that.

685. There was a concern that clause 2 may cause confusion in the enforcement of the Street Trading Act (Northern Ireland) 2001. However, the provision will merely give councils an additional tool to deal with “mock showrooms" where businesses place a car for sale on a street. The Street Trading Act deals with a range of offensives that are more to do with street trading. Clause 2 is primarily designed to deal with nuisance parking and with businesses using streets as mock showrooms. The fixed penalty that may be given for those offences is higher than the fine available under the Street Trading Act. That is our response to the issue. Do members have any comeback on that? It is simply an additional tool to help district councils. If there is a problem, they can choose to use that tool, but it is up to them.

686. The Chairperson: Is it up to councils? Is the power there if they wish to use it?

687. Mr Gray: Yes, and if they prefer to use the Street Trading Act, they may do so. However, clause 2 addresses the specific issue of nuisance parking.

688. A couple of points were made about prescribed periods for landowner objections and so on. The positions stated in the relevant part of the table relate to clause 8. I will, therefore, deal with those later when we deal with clause 8. The provision of adequate resources was raised. As we said before, the Department has no plans to provide additional resources for the implementation of the provisions in the Bill.

689. The point was made that similar powers to recover costs as per article 32 of the Pollution Control and Local Government (Northern Ireland) Order 1978 should be available to councils. However, district councils will still be able to continue to recover the costs of removing, storing and disposing of vehicles. However, that relates more to abandoned vehicles than nuisance parking. That point has been mixed with the comments and views expressed in the table about the clause. Therefore, those cost recovery powers will still be available to district councils.

690. It was proposed that the definition of “vehicle" be wide enough to cover abandoned caravans and trailers, but the definition is extensive and already covers caravans. However, that will be made clear in the guidance to avoid any doubt.

691. We were asked whether there was a difference between “street" and “drive" and whether it may be specified in the legislation that cars may not be sold on a street but may be sold from private property. Clause 2 deals with the sale of two or more motor vehicles parked within 500 m of each other on a “road". The Street Trading Act defines a “road" as including a public road and any street, carriageway, highway or roadway to which the public has access. Clause 2 is not intended to cover all situations. Existing legislation, such as the Street Trading Act, may still be used where appropriate. There is nothing in the Bill or the street trading legislation to prevent someone from selling a car from their driveway.

692. Mr W Clarke: I am happy enough. Most councils will welcome those additional powers. As you say, this is not being forced on the councils; rather, it a useful additional tool. Are we talking about people who park a car for sale at the junction of a road with a “for sale" sign and a contact mobile number in the window?

693. Ms Hazel Bleeks (Department of the Environment): That is one example. It could also cover a situation on a street. A guy close to where I live sells cars that he parks just outside the front of his house. It could also cover a situation that was recently encountered in the Belfast City Council area whereby a car showroom that had cars on the forecourt allowed them to spill out over the forecourt onto the street.

694. The Chairperson: Are members content with that explanation, or do we need any more information from the Department? Are members content with the clause?

Members indicated assent.

695. The Chairperson: Clause 3 is about repairing vehicles in the road. I remind members again that the clause was generally welcomed but clarification was sought on the detrimental impact on some businesses; the exclusion of cars awaiting repair; and the exclusion of taxis operating from domestic premises. I have fixed the odd car on the side of the road myself.

696. Mr Gray: We are not targeting you in this legislation.

697. The Chairperson: I would like to think not. [Laughter.]

698. Mr McGlone: Whom does it target?

699. Mr Gray: Cars repaired at the side of the road can take up valuable car-parking spaces, look unsightly and pollute the environment. Clause 3 makes it an offence to carry out restricted works to vehicles on a road as part of a business, for reward or gain, or in a way that gives reasonable cause for annoyance to people nearby. There is an exemption for repairs resulting from a breakdown or accident provided that they are carried out within 72 hours or such time as a district council authorises.

700. The Chairperson: Are members content with the clause?

Members indicated assent.

701. The Chairperson: Clause 4 contains the power to give fixed-penalty notices. I remind members that no issues were raised by stakeholders on this clause. However, clause 4(9) provides a power for the Department to substitute a new amount of a fixed-penalty payment as specified in the Bill. The Examiner of Statutory Rules suggests that the power should be subject to the draft affirmative procedure in keeping with other Bills that are going through the Assembly and as amended by the Committee in the Waste and Contaminated Land (Amendment) Bill. Are there any comments on that?

702. Mr Gray: Our remit on this Bill was to use Westminster’s, Clean Neighbourhoods and Environment Act 2005 as an example. Negative resolution procedures were used for those regulations, and we have no evidence that there has been any problem with that. That is why we have done it. Our parliamentary draftsman was content to draft it in that way.

703. The Chairperson: We want consistency. We are following the line of the Waste and Contaminated Land (Amendment) Bill, and we would like draft affirmative procedure for the purpose of scrutiny.

704. Mr Gray: Will you put that forward as an amendment?

705. The Chairperson: It will be easier for you.

706. Mr Gray: We will consider that point.

707. The Chairperson: I would like you to consider it, but the Committee would like to see the draft affirmative procedures. Are members content with the clause?

Members indicated assent.

708. The Chairperson: Clause 5 is the power to require name and address. No issues were raised on this clause. Are members content with the clause?

Members indicated assent.

709. The Chairperson: Clause 6 is the use of fixed penalties. No issues were raised in relation to this clause. Are members content?

Members indicated assent.

710. The Chairperson: Clause 7 is the offence of abandoning a vehicle and fixed-penalty notices. I remind members that this clause was generally welcomed with just one respondent suggesting that problems with abandoned vehicles are more significant than those created by vehicles parked on the road that are for sale or being repaired. In addition, clause 7(9) provides a power for the Department to substitute a new amount of fixed-penalty payment as specified in the Bill. As with clause 4, the Examiner of Statutory Rules suggested that the power be subject to draft affirmative procedure in keeping with other Bills. Would members like to comment?

711. Mr Gray: It is as before.

712. The Chairperson: Are members content with that change?

Members indicated assent.

713. The Chairperson: Clause 8 deals with the notice of removal of a vehicle by a district council. I remind members that two concerns were raised on this clause. Both were addressed at clause 2, and they relate to the length of time that is given for the removal of a vehicle and the lack of prescribed periods. I know that you have covered that already.

714. Mr Gray: The Department undertakes to prescribe, in regulations, the relevant periods under the Pollution Control and Local Government (Northern Ireland) Order 1978. Those regulations will be consulted on as soon as possible. The Department for Regional Development undertakes to prescribe, in regulations, the relevant periods under the Road Traffic Regulation (Northern Ireland) Order 1997, and those will also be consulted on as soon as possible.

715. The Chairperson: Are members content?

Members indicated assent.

716. The Chairperson: Clause 9 covers the disposal of a removed vehicle by a district council. No issues on that were raised.

717. Are members content with the clause?

Members indicated assent.

718. The Chairperson: Clause 10 deals with guidance, and I remind members that no issues were raised.

719. Are members content?

Members indicated assent.

720. The Chairperson: Clause 11 deals with the notice of removal of a vehicle. Again, no issues were raised on this clause.

721. Are members content?

Members indicated assent.

722. The Chairperson: Clause 12 covers the disposal of a vehicle by a police officer. No issues were raised.

723. Are members content?

Members indicated assent.

724. The Chairperson: Clause 13 covers the disposal of a vehicle by the Department. Again, no issues were raised about this clause.

725. Are members content?

Members indicated assent.

726. The Chairperson: Clause 14 deals with the offence of dropping litter in a lake, pond or watercourse. I remind members that two major concerns were raised: first, the definition of litter; and secondly, the assumption that article 3 of the Litter Order 1994 and this clause sufficiently cover all littering offences, including those related to smoking and chewing gum.

727. Mr Gray: The Department is satisfied that article 3 of the Litter (Northern Ireland) Order 1994, together with the amendment to that article that clause 14 would make, gives a very comprehensive definition of litter. It covers the dropping of litter in any place, including water. The Department is satisfied that the definition of litter is so robust that it does not require any clarification or amendment. The legislation in England and Wales, on which the Bill is based, did not have a definition of litter. It simply included a definition to say that litter includes chewing gum and smoking-related matter. We have a definition that was drafted before I became involved, but it was obviously drafted with the intention of covering everything. The guidance document that supports the Bill will make it abundantly clear that litter includes cigarettes and chewing gum. However, the Department is satisfied that there is no technical need to amend the definition.

728. Mr Kinahan: At the recent litter convention in Craigavon, a man by the name of David Armstrong from Mallard Consultancy said that the definition of litter should include dog fouling. If included, that would provide a stronger means of dealing with dog fouling and would mean that, if an owner allowed the dog to foul the pavement rather than bagging the droppings, a fixed penalty notice could be imposed, and the matter could be dealt with more quickly.

729. Mr Gray: It is an offence for a dog to foul. That is a separate offence from a litter offence. I am sorry; it is an offence to permit a dog to foul.

730. The Chairperson: Thank you for that clarification — we would have trouble putting that in the Bill.

731. Mr Gray: The definition of litter does not include animal droppings. However, regulations were made under the Litter (Northern Ireland) Order 1994 many years ago to make it clear that district councils’ duty to clear up litter extends to dog droppings. There is no need for the definition of litter to have a separate inclusion to refer to that.

732. Mr Kinahan: You mentioned the guidance that you will send. Will it be included in that?

733. Mr Gray: Yes.

734. The Chairperson: Are you requesting dog toilets as well, Mr Kinahan?

735. Mr Dallat: I thought that the litter was the pups that come after the dog. If a bale wrap, which is the polythene material that farmers use to wrap around their bales, comes down a watercourse and floods half of Portrush, which has happened in the past, is it considered litter?

736. Mr Gray: There is litter and there is fly-tipping. A distinction has to be made between when something can be defined as litter and when it becomes more than litter. The guidance document on litter states that a full bin liner is not regarded as litter; that is more serious than dropping a cigarette butt or a piece of wrapping paper. That attracts the more serious levels of fines and so on. I regard that large polythene sheet that you talked about as a waste issue. It could be regarded as litter, but the purpose of the guidance is to try to differentiate.

737. Mr Dallat: The farmer may have been fly-tipping, but what about somebody if was careless and dropped a wrapper, which then went down the watercourse, blocked the pipe and caused a flood?

738. Mr Gray: The definition could be interpreted. It says that litter means any refuse, filth, garbage or any other nauseous, offensive or unsightly waste, or any waste that is likely to become nauseous, offensive or unsightly. That could be treated as litter, but is it appropriate to deal with that as litter or as waste? I think that that would be quite a serious matter. However, the debate on this is long and ongoing.

739. Mr Dallat: As long as we have the dogs sorted out.

740. Mr W Clarke: I do not want to be dogmatic about this, but I want to ask about biodegradable waste. I want to clarify whether it will be an offence to throw down bread for birds and so forth. Some people could constitute that as waste. I imagine that orange peel, banana skins and apple cores would be waste. Obviously, they will decompose.

741. Mr Gray: We would regard that as litter.

742. Mr W Clarke: Does that include bread and everything?

743. Mr Gray: Yes.

744. Mr W Clarke: Does that mean that a person who feeds the ducks could be prosecuted? There needs to be clarity on that. If someone brings their child to the council park and they feed the ducks, could they get prosecuted?

745. Mr McGlone: Did you ask whether the ducks could get prosecuted?

746. Mr Weir: They would be the witnesses.

747. Mr W Clarke: There needs to be clarity on the matter. There may need to be an amendment about that.

748. Mr Gray: If the dogs ate up everything, and there was not a trace of anything left on the ground, I think that the council officer would have to use a reasonable approach.

749. The Chairperson: If the dogs ate up everything, there would be consequences later.

750. Mr Weir: That would not be litter, however.

751. The Chairperson: It is a very valid point, Mr Clarke.

752. Mr Weir: Common sense will apply. Ultimately, people will have a degree of discretion in how that provision will be used. What about a piece of bread that is thrown to a duck? I have seen people chuck a sandwich on the ground, because they do not like it. That would mean that they have created litter.

753. Mr W Clarke: From a moral point of view, I would prefer to give the bread to an animal than to throw it into a waste bin. Please clarify that and come back to us. Will such a common-sense approach be in the guidance?

754. The Chairperson: Thank you for livening up the meeting after the hour and a half that was spent on the Local Government (Finance) Bill.

755. Mr Buchanan: Common sense is very uncommon today.

756. Mr W Clarke: A Hitler of an enforcement officer will be prosecuting everybody.

757. The Chairperson: Will there be a different level of fine, depending on the colour of the bread?

758. Mr Weir: That would not pass section 75.

759. The Chairperson: Clause 15 deals with the penalty for failing to provide a name. Three issues were raised about the clause. Several councils suggested that it would be better to introduce fixed penalty notices for people who give false information about their name and address when being questioned for litter offences, as the courts did not give weight to the issue. One group suggested that such a penalty should be applied under all the relevant enforcement powers in the Bill. The youth groups opposed the notion that it should be an offence to give an inaccurate name and address.

760. Mr Gray: Clause 15 empowers a district council officer to require someone to whom he proposes to give a fixed penalty notice to give his name and address, and it makes the failure to do so or the giving of an inaccurate name and address, when demanded, an offence. The Northern Ireland Local Government Association (NILGA) welcomed the first point, which was the councils’ comment.

761. We talked about the second point yesterday in the office. It has been said that it would be quicker and cheaper to introduce fixed penalty notices for giving false information about a name and address when questioned for a litter offence than to bring it to court. I am trying to think that through in practice. If a litter warden tells an individual that he is going to issue him with a fixed penalty notice because he saw him dropping litter, and the person fails to give him his name and address, the litter warden now has the ability to say that that is an offence. This is primarily of a deterrent value. If the person still refuses to give the name and address, how can you issue him with a fixed penalty notice? There is no name and address.

762. Mr McGlone: They could give the wrong name and address.

763. Mr Gray: The clause would primarily be a tool with a deterrent value to give the litter warden’s requirement added weight. He can now say that it is an offence not to give a name and address or to give an inaccurate name and address.

764. Mr Weir: I agree with what is being said, and I think that it is right that someone should be liable to the law. You are proposing that anybody who does not give a name and address or who gives a false name and address will be subject to a fine in court. How will you bring them to court, if they have given a false name and address? There was a famous case in the South, where it was thought that there was a serial road traffic offender, but then a clever cop in the gardaí realised that 47 Polish drivers had given the Polish word for driving licence. That was taken down as the name of the person. If you do not have a name and address, or if you give something such as “Mickey Mouse c/o Disneyland", how do you realistically take that person to court? You will not know who the person is.

765. I am not saying that there should not be something in the Bill about that, because I think that there is some deterrent value in it. From a practical point of view, however, how will it be enforced? Will it be cost-effective to enforce, given that tracing would have to be done to get somebody to court for the sake of a £20 fine, for instance?

766. Mr Gray: There is already a general information-gathering power in the Litter Order. Obviously, under that Order, councils have been able to issue fixed penalty fines for litter offences since 1994. It allows councils to obtain information, and there is no restriction on that. It can be done under the heading of any other functions. If, for example, a council officer were to see litter being thrown from a vehicle, they could take a note of the car registration number and obtain the person’s details that way. I accept that this is not easy and that there will be circumstances where the power will primarily have a deterrent value. In some cases, if someone were to refuse point-blank to give a name and address, the council officer could not arrest the person or anything like that, so that is a difficult one.

767. Mr Jackie Lambe (Department of the Environment): The power to take a person to court has been available to councils for a number of years. We all accept that practical difficulties, as well as costs, are involved in doing so. However, at the end of the day, quite often a rather lenient fine is imposed. The provision for introducing fixed penalties is an alternative way of allowing councils to deal with offenders. Councils still have the ability to take a person to court, but there are significant difficulties with obtaining sufficient information to do so. It is a matter of judgement for councils as to whether they feel that the costs of taking court action are justified.

768. Mr Gray: We are referring to low-level environmental offences, and the legislation is framed proportionately to deal with them. However, I accept that there will be circumstances when people refuse to co-operate.

769. Mr Dallat: I know what is meant by the term “low level", but, when it is all multiplied, the cost runs to hundreds of millions of pounds for every council. I am not sure whether you have watched any documentaries on how different countries have tackled litter, but those that have been the most successful are those that have imposed draconian fines. People then begin to realise that tackling litter is a serious business that costs the country a lot of money. I know that we have to do it and that it is not a reflection on you, but we are discussing fines of £75 when no one who I know takes seriously the threat of such a fine, particularly when they can give a false name and walk away anyway. It is a waste of space, and I believe that is why the environment is in such a state.

770. Mr Kinahan: Can we not put something in the Bill to say that people have to go to the council to give their name and address, with verification, within a particular time period if there is some doubt about their name and address? I do not know whether that is possible from a legal point of view.

771. Mr Gray: How could you force someone to go to the council?

772. Mr Kinahan: If they refused, they would have to pay a fixed fine.

773. Ms Bleeks: If a person who had been stopped by council officer were to give a false name and address, the council officer might have some doubt about it and say that the person had to report with proof of their name and address. However, that person could disappear, and the council would be left with only the false name and address.

774. Mr Kinahan: The council officer would know what the person looked like. We need to find some mechanism that makes it possible to enforce, or else it needs to be linked to the police.

775. Mr Dallat: You cannot demand ID.

776. The Chairperson: Is there no way of giving more powers to wardens? Perhaps we can get a bit of research on what happens in other jurisdictions.

777. Mr Gray: The Bill follows the approach that is taken in England and Wales.

778. The Chairperson: I can imagine Willie Clarke giving Trevor Clarke’s name to get out of it.

779. Mr Weir: In either case, the accent might give it away.

780. Mr Gray: It is still a fact that over 3,500 fixed penalty notices were issued last year. Therefore, councils are able to point to the deterrent value of such notices. They are used primarily as a deterrent. I was at a meeting last week in London where there was a talk about litter from chewing gum and a survey on how best to deal with that. One of the issues that came out of that survey was that, in all the regions in England where it was carried out, not one fixed penalty notice was issued by any local authority for a chewing gum offence because they are too hard to detect. Someone can spit out chewing gum, and no one will notice.

781. The Chairperson: That would mean that half the population would be fined.

782. Mr Gray: The councils are relying on the deterrent value of a poster campaign that refers to an £80 fine.

783. Mr Dallat: Does that mean that the council will fly-post to tell people not to put chewing gum on the ground? That is what happens.

784. Mr McGlone: It is a sticky one.

785. Mr Weir: I was about to make that same pun. I appreciate what has been said, and, in one sense, it may be less a direct question of legislation. However, although it might not possible to answer the question today, we need to find out whether the Department can do any research on whether local authorities elsewhere have used best practice forms of methodology or better methodology to ensure that culprits are caught or, at least, fined. If a system has worked elsewhere, there may be some practical lessons to learn. That may not be done through legislation; it may be done through action.

786. Mr Gray: The issue of guidance comes up all the time. A comprehensive guidance document will be prepared that covers the practicalities of the enforcement of issuing fixed penalty notices. That is perhaps the time to get into that issue in detail. We will have to consult on that specifically, and that is when we will hear all the ideas on and practical examples of how best to enforce this provision.

787. The Chairperson: First and foremost, we need stronger powers to deal with the issue than those that are available to us.

788. I will wrap the session up now, as I am conscious of time constraints. We will leave it at that and come back to this subject. Thank you very much.

2 December 2010

Members present for all or part of the proceedings:

Mr Cathal Boylan (Chairperson)
Mr Patsy McGlone (Deputy Chairperson)
Mr Thomas Buchanan
Mr Trevor Clarke
Mr Willie Clarke
Mr John Dallat
Mr Danny Kinahan
Mr George Savage
Mr Peter Weir
Mr Brian Wilson

Witnesses:

789. The Chairperson (Mr Boylan): We will begin with Part 1, which concerns gating orders. I believe that the departmental officials have to go at a certain time. I welcome Robert Gray, Gerry Anketell, Hazel Bleeks and Brian O’Neill. You are all every welcome.

790. I remind members that, although most respondents welcomed the proposals to give powers to councils to make gating orders, some were concerned that that would raise expectations among residents about gating orders that were not required and that there may be an impact on emergency services and other necessary access. Several councils suggested that “new burden" funding should be provided. Youth groups, in particular, are opposed to the potential impact of the gating orders on children and young people and suggested that the Bill should specify that they should be seen as a last resort.

791. Brian and Gerry will respond. You have heard the issues and complaints about the proposals.

792. Mr Robert Gray (Department of the Environment): I will respond, Chairman. I welcome Gerry Anketell and Brian O’Neill. They have supported us throughout the bringing forward of the clause.

793. With your permission, Chairman, I will make a correction to a statement that I made in the meeting of 30 September in response to a question from Peter Weir. I stated that alley-gating is a Department for Regional Development (DRD) responsibility and that the Department of the Environment (DOE) is carrying the provisions in Part 1 of the Bill concerning gating orders on behalf of DRD. That is not exactly correct. The correct position is that DRD is responsible for the legislation that the DOE is amending to give effect to the alley-gating provisions in the Bill. It is the DOE’s policy decision to progress the clean neighbourhoods agenda, an important part of which is the need to bring forward proposals to make the existing procedure for closing off nuisance back alleys more effective. I want to make it clear to the Committee that the DOE is, therefore, in the lead in taking forward the gating order provisions, with valuable support from our colleagues in DRD.

794. I also want to make it clear that DRD is not responsible for alley-gating, as was wrongly indicated by me on 30 September. The present arrangements are that DRD merely facilitates such schemes through the making of statutory rules or gating orders to modify existing rights of way. That then enables a local council, with the agreement of the community, to erect gates. DRD does not supply funding, nor does it construct or erect gates to achieve alley-gating. Those are the responsibility of an independent sponsor who will have worked with the local community in bringing forward proposals for an alley-gating scheme. I just wanted to put that on the record.

795. It is fair to say that a number of Departments and other bodies have an interest in the benefits to be gained from alley-gating schemes. DOE has an interest, because such schemes will improve environmental quality in our neighbourhoods. The community safety unit in the Department of Justice will have an interest in how they will help to deal with community safety issues. The Department for Social Development has an interest in neighbourhood renewal and improvements in the quality of life for those living in local communities. DRD has an interest in the elements relating to road safety, traffic management and rights of way. Last but not least, district councils have a clear and direct interest in the benefits to be gained by alley-gating.

796. The Department is pleased to note the broad welcome that has been given by district councils to Part I of the Bill. Councils recognise that the existing regime for making gating orders has proved to be cumbersome. It is felt that a more streamlined approach is required and that responsibility for making gating orders would be better placed with local government than with central government. Clause 1 of the Bill, therefore, inserts new articles in the Roads (Northern Ireland) Order 1993 to enable district councils, with the approval of the Department for Regional Development, to make a gating order in respect of an alleyway that is also a relevant road. The gating order will restrict public access to an alleyway that is facilitating persistent crime or antisocial behaviour and will enable the council to install, operate and maintain barriers to enforce the order. Clause 1 specifies the circumstances in which a council may make a gating order and the types of restrictions to access that it may impose. It also provides for interested parties to have the opportunity to make representations about a proposed gating order.

797. I have divided the issues that were raised during Committee Stage into concerns about costs and concerns about the impact of section 75 and the promotion of equality of opportunity in relation to children and other groups. T

798. The clause does not impose a duty on councils. Councils are being given an additional tool to enable them to make gating orders, with the approval of DRD. Gating orders are not new. This streamlines an existing system and gives discretionary power to a local council to decide, on the basis of representations that it may receive, whether a gating order would be appropriate.

799. In deciding whether to go forward with the gating order, the council will have to take into account such issues as costs and the impact on section 75 groups, such as disabled people and children. Arrangements are built into the clause that require the council to take those issues into account. It is only when a decision is made as to whether a gating order is appropriate that those issues apply. We are merely giving councils the tools to do the job, if the job needs to be done. That addresses a lot of issues that were raised in Committee.

800. The Chairperson: There is also the issue of freedom of movement, which concerned the youth groups, and the antisocial element that goes along with that. We are saying that the measure should be a last resort. However, a lot of groups are involved. The Housing Executive will have an interest, for instance. DRD will have a role in respect of the adoption of the footpath or entry. That is perhaps your only role, but you have to be invited to take part in the process to give your opinions.

801. Mr Gerry Anketell (Department for Regional Development): That is broadly correct. The clauses relate to relevant roads, which will be adopted roads. DRD has authority for roads, so it has responsibility for the maintenance of those alleys or footpaths. From that point of view, we need to be involved in the process.

802. The Chairperson: The gates are locked at the minute, and there is a responsibility to open the gates to facilitate service people. Are there any issues with that?

803. Mr Brian O’Neill (Department for Regional Development): There have not been any issues. Roads Service receives keys because my staff have to inspect the adopted alleyways. The emergency services have keys, and the councils make arrangements with the residents to ensure that the gates are opened at the appropriate times for servicing, such as the removal of bins or rubbish, or for inspections. If there are problems, we can be contacted to make arrangements with the residents to be there at a certain time to open the gates. In the past three years, there has not been any difficulty in people getting into the alleys.

804. The Chairperson: Is there an opportunity to include the term “last resort" in the Bill? I think that the Committee supports the idea of alley-gating, but as a last resort after exploring all other avenues. Some people are in favour of it and some are not.

805. Mr Kinahan: What does “last resort" mean?

806. Mr Weir: I take Mr Kinahan’s point. There may be some form of wording that could be included in the Bill. I am not sure that “last resort" would legally stand up to scrutiny because, legislatively, I do not think that it is the correct terminology.

807. Mr Gray: Certain criteria have to be met, one of which is outlined in proposed new article 69A(3)(b) of the Roads (Northern Ireland) Order 1993, which is included in clause 1:

“the existence of the road is facilitating the persistent commission of criminal offences or anti-social behaviour".

808. The guidance document that we will bring forward will support all of the provisions in the Bill. The “last resort" point is the sort of issue that can be fleshed out in the guidance.

809. The Chairperson: It was only a question, but you can see the opposition to it. I am sorry that I mentioned it.

810. Mr W Clarke: What is the definition of antisocial behaviour? Does it include children playing or kicking a football?

811. Ms Hazel Bleeks (Department of the Environment): It is defined in the Bill as:

“behaviour by a person which causes or is likely to cause harassment, alarm or distress to one or more other persons not of the same household as that person."

812. So, there is a clear definition there.

813. The Chairperson: So, could it be construed as somebody kicking a football down an alleyway?

814. Ms Bleeks: Yes; if that caused harassment, alarm or distress to someone.

815. Mr W Clarke: People just standing outside a house could cause that.

816. The Chairperson: That could be loitering with intent. It is a fair point. I take your word on it. Given what you have said about the definition, it could mean anything.

817. Mr Weir: My concern is not that gating orders will be issued willy-nilly; my concern is about the flipside of the coin. I appreciate what has been clarified, and, consequently, I am happy enough to support the proposal, but my concern is more about raising expectations about things that will be very costly to put in place. When we received evidence from NILGA (Northern Ireland Local Government Association), I think that a representative from Belfast City Council said that it had an annual budget for administration. It may well be that, with the best will in the world, this was somewhat overblown, but it was stated that the council had an annual budget of £500,000 to deal with alley-gating. Although Belfast City Council is an awful lot bigger than any other council, I would be concerned if that was read across into other councils. Given the fact that there is some opportunity because Belfast City Council uses alley-gating at present — the Bill more or less clarifies the law and takes it forward — are you aware of how many other areas use alley gates?

818. Mr B O’Neill: A number have been used in a couple of locations. A few gates have been erected in Derry, but, primarily, they are around Belfast. I think that there is one other location outside Derry and Belfast, but I cannot remember where it is. It is very limited outside Belfast.

819. The Chairperson: We have one.

820. Mr Weir: Is that to keep people out or to keep them in? [Laughter.]

821. The Chairperson: They get out when the sun shines and stay in when it is snowing.

822. Mr W Clarke: Are we looking at some form of words such as “the last option"?

823. Mr Gray: We can look at that in the guidance document.

824. Mr W Clarke: Could that not be included in the Bill itself?

825. Mr Gray: The Bill is quite clear on the criteria that must be satisfied before it is possible to bring forward an alley-gating proposal. The council must be satisfied that persistent criminal offences and antisocial behaviour are taking place. Indeed, proposed new article 69A(3)(c) states that:

“it is in all the circumstances expedient to make the order for the purposes of reducing crime or anti-social behaviour."

826. Those are quite strong criteria that must be satisfied.

827. Mr W Clarke: I want to ask about section 75 and the equality impact assessments. The Committee received submissions that certain groups were disadvantaged when alley-gating was introduced in England. Will equality impact assessments be carried out?

828. Mr Gray: If a council is going to make a gating order —

829. Mr W Clarke: Councils will carry those out.

830. Mr Gray: As local authorities, they are required to take those issues into account.

831. Mr W Clarke: My experience of councils is that those assessments are not always carried out. I declare an interest as a member of Down District Council. In my council area, I know of one play area where access has been closed because of antisocial behaviour. That action deprived a deprived area of access to a playground, which impacted on children and mothers. That is already happening in council areas, which is why I would prefer to see something overarching that would ensure that equality impact assessments are carried out at this stage.

832. Ms Bleeks: To take the example that you gave; if an alley or road is the only means of accessing a play area or premises, a gating order cannot be made. You cannot cut people off from premises or play areas by means of a gating order. A gating order would not be appropriate in those circumstances.

833. Mr W Clarke: Down District Council gated that play area, and, by doing so, demonised the whole population of the area never mind just a couple of people. I am not saying that it is children who cause antisocial behaviour — a lot of the time they get blamed for it when much older people are responsible. Placing the gate on that play area means that people must take a round trip of 25 minutes. That is happening now.

834. Ms Bleeks: Under the terms of the Bill, that could not happen.

835. Mr Gray: We are correcting that.

836. Mr Weir: To be fair, we are not generally talking about access to playgrounds but about access to back alleys. We have not directly used alley-gating in North Down, but there were problems in, I think, the Brambles area of Rathgael, more or less where the forest is, and I am sure that Brian will be aware of those, too. There was a lot of antisocial behaviour in that area, and there was what might almost be described as an escape route into the forest for kids and teenagers who were creating problems. A small gap was then closed off, which solved the problem and stopped that from happening. Therefore, some physical restriction can be useful at times.

837. Mr W Clarke: I do not disagree. The example that I gave is of an entry behind houses. I do not want to get into the issue today, but, in my opinion, we are not dealing with the problem. Alley-gating simply drives people on to somewhere else, and the underlying issues are not being tackled. However, I agree that it is only one tool in the toolbox. If there is to be information in the guidance notes and further work with councils on implementation, I will be happy. When will those guidance notes be available? Is the Department consulting with NILGA?

838. Mr Gray: We will have to consult fully with the Committee on those guidance notes.

839. Mr W Clarke: When will we see those guidance notes?

840. Mr Gray: We cannot proceed with the guidance until the Bill gets Royal Assent.

841. Mr W Clarke: Are you drawing the guidance notes up in parallel with the Bill’s progress?

842. Mr Gray: We are working on all of that material so that we will be in a position to issue it as soon as possible after the Bill receives Royal Assent.

843. Mr W Clarke: So, you are working on it now.

844. Mr Gray: Yes. We are working on all of the guidance documents under the Bill.

845. Mr B Wilson: Mr Weir talked about expectations. I am concerned about that as well. I know of at least six places in the Rathmore estate that would be closed off by alley gates if this were enacted. The alleys are normally rights of way. How does that relate to rights of way?

846. The Chairperson: I agree. The problem has been about freedom of movement. We are saying that it is about giving councils the power to making gating orders, but we must bear in mind that a lot of authorities are involved in this. DRD, the Housing Executive and councils are involved. Ultimately, it will be a corporate council decision, in agreement with everyone else. That is why it is important.

847. We have talked about gating orders being used as a last resort, and you have outlined the criteria. It is not about obstructing people. Agreement has to be reached. Through our experience of the issue, I have learned that there needs to be proper consultation, because it does not affect only one end of an estate. The gate may be in one location, but it affects the movement of everybody around that. That is the problem, and it needs to be taken into consideration. It is up to councils whether they agree with everybody else and decide to go down that route. The Bill gives that power. I know that people raised their concerns.

848. It is important to give proper guidelines, because sometimes guidelines are written on a piece of paper but nobody enforces them or takes them on board. You need to enforce what you are saying in the policy and what the guidelines state.

849. Mr Gray: The guidelines will be subject to full consultation with, amongst others, children’s organisations, which have had a lot to say about the proposals. There will be an opportunity for stakeholders and experts on the issues to shape the guidance.

850. The Chairperson: Are members happy with the Department’s explanation? Do you require any more information?

851. Mr T Clarke: Since responsibility for the scheme is going to the councils, so will the burden. Some of the areas are owned by DRD or the Housing Executive. Will they stump up?

852. The Chairperson: I am saying that they will have to make that decision as a group.

853. Mr T Clarke: Who will be left to pay for it? Will it be the councils? After all, the land may be owned by the Housing Executive or DRD.

854. Mr B O’Neill: It will be the promoter. If the council is the promoter, the council will have full responsibility for the costs. With regard to rights of way, we have to assess what the impact will be and whether our approval for alley gates would be given.

855. Mr T Clarke: Who are you with?

856. Mr B O’Neill: DRD — Roads Service.

857. Mr T Clarke: You are not writing the cheque.

858. Mr B O’Neill: No.

859. Mr T Clarke: I am concerned that there is a wee bit of a difficulty. I am working on a case in which there is a problem with an alleyway. It would be unfair if the council were to carry the burden, given that the problem has been associated with the Housing Executive’s layout design of developments or with Roads Service, which adopts roads. Sometimes the problem is related to design. It is unfortunate that the council will have to foot the bill to fix that. Is there no way of making the other agencies responsible so that they stump up money as well?

860. Ms Bleeks: I am not sure about making the other agencies responsible. Brian mentioned the promoter footing the costs. Quite often, the council will be the lead on that. There is nothing to stop interested parties, such as the Housing Executive, the councils or, in some cases, the neighbourhood renewal units coming together to fund a project jointly. There is no onus on councils to fund a project on their own. If they do not have the money, they cannot do it. There is no reason why they cannot get together with other bodies to fund it jointly.

861. Mr T Clarke: Is there no way to build into the Bill an onus on the Housing Executive or DRD, or whoever owns the land, to co-fund the project with whatever organisation is leading the project? It is easy for DRD or the Housing Executive to design a development in such a way as to create a problem, but it is unfortunate that the council has to pick up the bill to fix it.

862. Ms Bleeks: The provisions in the Bill do not change the funding. At the minute, people can jointly fund projects. In some cases, the council will do it and, in others, the Housing Executive will step up.

863. Mr T Clarke: You could make it easier if you made it a requirement for each of the partners to do something, as opposed to expecting a council to do it alone.

864. Mr Gray: The Bill was brought forward on the basis of it being cost-neutral. All the provisions are treated as cost-neutral. As regards gating orders, we have taken into account the benefits that would be achieved by a council through a reduction in the cost of dealing with problems in the alleyway. That may not compensate for everything, but —

865. Mr Weir: I understand how other elements in the Bill could be presented as cost-neutral, but there has been a level of spin in this case. There may be social benefits and less trouble and so on, but, from a purely financial point of view, alley-gating will cost councils a reasonable amount of money. The idea that spending money on gating alleys would save a council a lot of money does not, with the best will in the world, bear proper scrutiny.

866. Mr Gray: It is, ultimately, up to the councils to decide whether they want to make a gating order.

867. Mr Weir: With respect, that is a separate point. You can make the point that you regard it as being in the overall interests of the community or the right thing to do. However, that is different from saying that, from a financial point of view, it will be cost-neutral to a council, because, with the best will in the world, it will not be. There may well be certain other advantages that it provides to the community in the broader sense, for example, an improved quality of life, but, from a purely financial point of view, it will not be cost-neutral for councils.

868. Ms Bleeks: The provisions on gating orders in the Bill will not impose additional costs on councils — there are already costs for gating orders now.

869. Mr Weir: That may be a slightly different point, but it is not cost-neutral if you have to take action, because, on the balance sheet, it will show as costing money. The issue, as with many services, is whether you feel that it is worthwhile doing it to improve people’s overall quality of life. However, with the best will in the world, let us not oversell this and say that they will be cost-neutral to councils.

870. Mr W Clarke: Alley-gating will definitely not be cost-neutral, and councils will not see it that way. There is a bit of topspin in that, never mind spin.

871. Mr Gray: Perhaps I should clarify the position. The Bill gives councils a range of additional powers and duties, and, taken as a whole, the Department’s line is that the Bill is regarded as being cost-neutral.

872. Mr W Clarke: That may be the Department’s line, but it is certainly not cost-neutral when the councils will have to foot the bill at the end of the day. I agree with Trevor Clarke’s point about different statutory agencies. The Bill places a greater onus on those agencies, particularly the PSNI and NIO. If it is cost-neutral for anyone, it will cost-neutral for those organisations, as they will save money on policing and resources.

873. Before you say, “This is great", we need to look at what resources will be made available for community safety. Perhaps that is what you mean by cost-neutral, and perhaps other funding streams will be put into the pot. If gating orders work, there will be a reduction in the amount of policing time, and the money saved should be put into the pot for councils to draw down on.

874. The Chairperson: It could be cost-neutral if, say, the PSNI had to be called out 30 times in one year. I do not know what that would add up to —

875. Mr W Clarke: That is not the council’s budget.

876. The Chairperson: No, it is not. I agree; there is a collective responsibility on all agencies and Departments associated with alley-gating, including the Housing Executive, DRD, neighbourhood renewal, which you mentioned, and community groups. If it costs £5,000 to gate an alley, funding should be provided by those bodies.

877. The main issue is the one that Mr Wilson identified. Gating orders are already being issued by councils, and alleys have been sealed off. However, what I think Mr Wilson was trying to say was that, when someone sees this power in the Bill, they will phone their council and ask it to act on it. That is the impression that it will give, and it is a problem. If you go down all the alleyways and avenues — pardon the pun — and agree collectively not to seal off an alleyway because it is not in the best interests of the community to do so, a member of the community could ask what the point of having that power is. That is where the criticism would come in.

878. We could go on talking about it all day, so, just to wrap up, we will have to seal that door and everybody in until we get agreement on it. Can we look at guidelines and ensure that, collectively, there is responsibility for all to contribute to the cost?

879. Mr W Clarke: Chairperson, just to expand your point: what are the equality implications? If all the citizens in a street asked the council for alley-gating, and then drew comparison in another estate where that was put in, they would say that they are ratepayers like everyone else, and the council has an onus or a duty to protect them. Can we check out what the legal equality implications are?

880. The Chairperson: On that note, everyone keeps saying that the council pays for it: the ratepayer pays for it, at the end of the day. Do members require any further information on that? No. You will come back to that point, Robert?

881. Mr Gray: Yes.

882. The Chairperson: Thank you. That concludes the informal part on gating orders. Gerry and Brian, thank you very much for coming. No doubt we will be talking to you again.

883. Jackie is going to join us for this part. Part 3 is about litter. Clause 16 refers to fixed penalty notices for litter offences. Several issues were raised about the clause, which included whether fines should be higher than £75 to act as a proper deterrent; the lack of publicity relating to fixed penalty notices, which will make them less of a deterrent; whether the power for councils to authorise non-council staff to implement enforcement powers should apply to all enforcement sections of the Bill; whether the Department should set maximum and minimum fines; the fact that littering among young people should be tackled in schools first; whether there should be a minimum age limit in the serving of a fixed penalty notice; and the impact of such fines being issued to young people. We will try to race through those issues before I take the Committee’s comments.

884. Mr Gray: The Department notes the various views on the appropriate level of fine to be levied through fixed penalty notices. Our initial remit on this Bill was to bring Northern Ireland broadly into line with the level of fines and so on that are enforced in England and Wales.

885. Mr Dallat: Why?

886. Mr Gray: That is what I was told to do; that is our remit.

887. There is a provision in the Bill that allows the Department, by Order, to change the level of fines in the future. The fine in the Bill is £75. In the Republic of Ireland, the fine is €150. The Bill will allow councils to set their own level of fine within a range, and that range will be set out in regulations.

888. We had to use something as a basis to find a level of fine, and we used the level of fine that was brought in in England and Wales through the Clean Neighbourhoods and Environment Act 2005. I believe that a lot of councils and local authorities over there apply a fine of £80 at the moment. The Department feels that the level of fine is proportionate to the offence of dropping litter.

889. The Chairperson: Basically, Robert, let us cut to the bones of all this: some people are saying that the fine is not a deterrent at that level. We need examples that it is working elsewhere. You say that it works in England and Wales or wherever; we need to know whether it is definitely working at that £75 level.

890. Mr Gray: If I dropped a piece of litter while walking down the street and someone slapped a £75 fine on me, I would not be happy. I regard that as a significant fine.

891. The Chairperson: To be fair, that is correct. I would not like a £5 fine, never mind a £75 fine. It is whether the Committee feels that that is enough.

892. Mr Weir: I do not have massively strong views on the exact amount. It would certainly annoy someone to get fined £75. Having said that, I suppose the problem from a deterrent point of view is that many people will think that the chances of getting caught are very slim.

893. The idea is to give councils a degree of flexibility. Is any sort of graduated measure envisaged, depending on how quickly somebody pays? A parking ticket, in theory, is £60. However, if is paid within a period of time, it is £30. Is the intention to have something similar regarding the speed of payment of fixed penalty notices for litter? If so, is £75 the upper limit? I think that nine out of 10 people will see the sense and pay the fine within the period of time, which effectively means that they will pay half the charge. In what way do you see that happening?

894. Mr Gray: There is a provision in the Bill that will allow district councils, as an encouragement to people to pay, to charge a smaller amount if the fine is paid early.

895. Mr Weir: The encouragement to pay is quite a useful device because it brings in the money a lot more quickly.

896. Mr Gray: The opportunity for councils to do that is consistent throughout the Bill.

897. Mr Dallat: If our sole purpose in life here is to bring things into line with what is happening in Wales and Scotland, why do we not just rubber-stamp the whole lot? I am serious, because Wales and Scotland have innovative ideas about how to manage things. We should, at least, have — [Interruption.] Sorry, Thomas, do you want to take over?

898. Mr Buchanan: No, go ahead.

899. The Chairperson: Hold on.

900. Mr Dallat: I am making a very serious point, and I expect to have the freedom to do so. It is frustrating when I get out of bed at 6.00 am and come here, only to be told that we are bringing legislation into line with elsewhere. That is a waste of public money. I have studied the issue very carefully, and I know that, in other parts of the world, that fine could be £1,000. I am not advocating that, but the purpose of it is to get across a message that millions of pounds are spent by 26 councils every year to pick up litter that should not be dropped in the first place. The issue is serious.

901. I am not shooting the messenger over the £75 fine; please do not get me wrong. If there is provision for a 5% increase every year in line with inflation, do we drop it in a recession? I am trying to be constructive, but I would much prefer that the ideas of this Committee, which we discussed previously, are taken seriously by the Department so that we are not just nodding dogs and bringing something into line with something that is happening somewhere else. I am quite annoyed.

902. The Chairperson: Obviously, it is a decision for the Committee. A £75 fine for dropping a cigarette packet is hefty enough. It is about the message that we have to get across. We need the deterrent, which is the fine, but we also need to get the message across. People talked about the lack of publicity. If we go down the road of fining people £75, it has to be publicised.

903. Mr W Clarke: I take on board what John said, but £75 is proportionate for dropping a bit of chewing gum or a cigarette butt. As I said before, fines should be on some sort of sliding scale based on someone’s salary. If somebody earns £100,000, a £75 fine for them driving along in their Porsche and firing out their chip papers would probably not seem like a lot. However, if someone is on benefits and getting £60 a week, £75 is a lot of money. It is proportionate.

904. The Chairperson: Are you asking for the Porsche to be removed, Willie?

905. Mr W Clarke: That would be a good fine; take the Porsche.

906. When debating the setting of a fine in the Dogs (Amendment) Bill, the Committee for Agriculture and Rural Development mirrored what was happening in the Department of the Environment: we increased the fine from £50 to £75. There was a lot of anger in the Committee about that. It is trying to mirror the £75 across the board. If the fine is paid in time, it is reduced to £50. I think that that is what they were looking at. I am happy with that. I am not happy with the fines, because they are not based on a person’s ability to pay and salary.

907. Mr Gray: The other point is that a fine is offered as an alternative to prosecution. If councils know of a persistent offender who is not getting the message, they can seek to prosecute that person. That can result in a £2,500 fine in court, if the judge so decides.

908. Mr T Clarke: Mr Clarke referred to the people who are unemployed. I hope that he is not talking about those who are technically unemployed but laundering millions of litres of fuel in a year and evading the relevant duties. Those people are technically unemployed, so I do not think that there should be a sliding scale.

909. Mr W Clarke: If you have information like that, you should give it to the PSNI.

910. The Chairperson: OK, gentlemen, that is nothing to do with this Bill.

911. Mr W Clarke: I think that that was a slander on unemployed people.

912. Mr T Clarke: What, the ones who are laundering fuel and are unemployed?

913. The Chairperson: OK, gentlemen. Mr Trevor Clarke, there are genuine cases, but, I think the £75 is reasonable. I know that it has been said that it mirrored other areas, but —

914. Mr Gray: It is a proposal.

915. The Chairperson: I know that it is a proposal. There are examples of good practice. Maybe, we should take those on board.

916. Mr Savage: I have been listening carefully to what the members have been saying. I noticed in Craigavon Borough Council’s minutes of this past week that a number of fines have been imposed for flicking a cigarette butt out through a window. Individuals have faced fines of £75 and legal costs of £125. It is coming before the council on Monday night. One person faced three of those fines in one day. The council does not have a pup’s chance of getting the money from that person. In fact, one of the offences was committed by an individual in a taxi when coming from court. Is there not a simpler way of doing it?

917. I live in a rural area, and I constantly see people dumping grass on the side of the road, but nothing seems to be happening. They have no excuse for doing that, because they have different bins for grass and other materials. It so happens that one of the people happens to be a bank manager, and, I believe, the other happens to be an employee of your Department. Those are real issues that have to be addressed. Something more streamlined needs to be introduced. I do not know how it can be done, but those people are breaking the law. I do not know of a more simple way of getting the money from those people, but the councils are being put to the expense, when they know that they will not get the money. Those people are consistently breaking the law.

918. The Chairperson: That is the other end of the scale. The idea is to provide a deterrent. Recovery and enforcement are mentioned, but we need to have proper powers to deal with those.

919. Mr Jackie Lambe (Department of the Environment): There are examples from around the world of the imposition of higher levels of fines, as Mr Dallat said. There are also examples in which the whole approach to litter has been taken forward in an entirely different way. For example, in the Republic of Ireland, Holland and, I think, Australia, the power has been given to the local law enforcement agencies. In those instances, the agencies are involved in taking environmental-type offences and raising their profiles so that they are priorities in local communities. So, there is a range of different ways of taking this forward.

920. Traditionally, the approach here has been to keep that role fairly limited to local authorities, though, if the police here see someone littering, they have the power to stop that person, ask for their name and address and send the details to the local district council so that it can take appropriate and proportionate action.

921. Mr Weir: In some cases, there is the separate issue of trying to identify who has dropped the litter. I am not sure that there is a particularly easy way around that, particularly in country areas where it is difficult to be vigilant.

922. People should not qualify for legal aid for littering offences, but sometimes they do. Have there been any discussions with the Department of Justice about that? The Minister of Justice is talking about reforming the legal aid system. People are refusing to pay fines, but councils are sometimes reluctant to take people to court because, as Mr Savage said, the court fine is often a lot less than the legal costs of the prosecution. In those circumstances, costs should follow the event; if somebody is found guilty, they should pick up the tab for the cost of the prosecution.

923. Sometimes, that can be avoided for low-level offences, because you will not get an order of cost for legal aid. One case went through several stages of the court. Although not exactly a littering offence, there was an infamous case in north Down in which someone deliberately broke the smoking ban. Mr Wilson may be aware of that case. The defendant did not have a leg to stand on, but, because that person was receiving legal aid and kept on pushing the case, it ended up costing the council £2,000. That was a situation in which the council had no alternative other than to prosecute.

924. Can there be any degree of liaison, if we are looking at the overall reform of legal aid, with the Department of Justice to see where there can be a joined-up approach? That could help to have a legal system in which being taken to court for a low-level crime hurts the defendant rather than the prosecuting body.

925. Mr Gray: No, there has not been any direct engagement on that point. The only engagement that we have had with the Department of Justice has been on community safety.

926. Mr Weir: Would it not then be worthwhile to take that as a suggestion? It could be around the levels of payments of legal aid. The Minister has made it very clear that he is looking to cut legal aid budgets from about £100 million to about £80 million. The protection of very low-level cases, which act as a disincentive to prosecute people who are guilty, could at least be looked at. I encourage you to see whether a wee bit of joined-up thinking can be applied to the prosecution of those types of offences.

927. As somebody indicated, a fixed penalty should be an alternative to a prosecution. However, unless you have the full system properly worked out, the danger is that some people may not bother paying it because they know that the prosecution will not be followed through with as it is not cost-effective.

928. Mr Gray: That is not something that we envisage being in this Bill.

929. Mr Weir: No, but by the same token, if we are putting in place related legislation, that could be considered. There may be related issues that are not in the Bill. The issue comes down to one of the chestnuts of this Committee: the implementation of the Bill. It is not enough to have legislation; we have to work out the next steps in the follow-through. The follow-through in this case will involve a clear-cut system that covers not just the initial fixed penalty but how you deal with litter control and how that is followed through the system. Having that worked out in the process rather than in the legislation is quite important.

930. The Chairperson: Both members have raised valid points, and they should be followed up on.

931. Mr McGlone: My colleague Mr Dallat raised an important issue. I never thought that litter offences and fixed penalty notices would raise so much bartering around the place, but there you are. When you get out of bed in the morning to come up here through the snow, you never know the way it is going to be, but, he raised a valid point. I want to know, and I do not expect you to itemise it, how much of this Bill is, in effect, just a cut-and-paste exercise from legislation that exists in Britain somewhere?

932. Mr Gray: The existing legislation in Northern Ireland, such as the Litter (Northern Ireland) Order 1994, is entirely based on corresponding legislation in force in England and Wales. The model for this Bill is the Clean Neighbourhoods and Environment Act 2005. This Bill is based on that model and the consultation document was taken forward on that basis. That is what councils asked for. NILGA, many MLAs, MPs, and so on lobbied strongly for legislation here to correspond with the Clean Neighbourhoods and Environment Act 2005. It was on the basis of that lobbying that the Minister decided to take it forward.

933. Mr McGlone: So, it is virtually a read-across then?

934. Mr Gray: Only where appropriate. There are areas that had to be changed and there are areas in Northern Ireland law that are slightly stronger than the law in England and Wales, and vice versa. We are not doing anything to weaken the law here. It reflects the demand of district councils and key stakeholders, Members of the Assembly, MPs representing Northern Ireland and organisations such as TIDY Northern Ireland.

935. Mr McGlone: I do not doubt the integrity of the Department’s position, I am just trying to establish, other than the wee bits that we try to tweak here, how it is different by way of its strength, innovation or creativity around aspects of legislation. That is what I am trying to get to.

936. Mr Gray: Broadly speaking, it is very similar to the legislation that is in force in England and Wales.

937. Mr Buchanan: One issue is about how it will be implemented on the ground. For instance, if I drop litter and the warden gives me a fixed penalty, I could argue against it and say that I did not do it. If I do not pay the fine and it goes to court, would my word be taken against his, or does he have the authority to say that I dropped the litter, but there is no photographic evidence? It is different to putting something on a car, because there is photographic evidence. Is this going to cause a problem? If a teenager or someone still at school does it, or spits chewing gum out on the street, does the warden give them the order too? Who would pay that?

938. Mr Gray: A litter warden should issue a fixed penalty notice only as an alternative to prosecution. In issuing a fixed penalty notice, the litter warden should be confident that, if the case is taken to court, he has sufficient evidence to secure a prosecution.

939. Mr Buchanan: What is “sufficient evidence"?

940. Mr Gray: That would depend on each case.

941. The Chairperson: The enforcement actions and all the criteria that go along with that are important for the warden.

942. Mr T Clarke: They have that power at the moment, do they not?

943. Mr Gray: Yes.

944. Mr T Clarke: Can you tell me how many fixed penalties have been given out in the past 12 months?

945. Mr Gray: About 3,500.

946. Mr T Clarke: Is that concentrated in particular areas?

947. Mr Gray: Well, Belfast, obviously, is the main one.

948. Mr T Clarke: Belfast is a big place, but I cannot imagine that many councils will have litter wardens out in the borough watching people drop litter anyway.

949. Mr Gray: No. There are very few. A few councils have litter wardens. Councils can keep the money from the fixed penalty notices, and I think Belfast uses that money to pay towards its litter wardens.

950. The Chairperson: OK. We spent half an hour on clause 16. I hope that the rest will not take as long. The key point is that, although it is OK to grant enforcement powers, it raises other issues.

951. Mr Gray: Enforcement is a big issue.

952. The Chairperson: If members who are councillors see, for example, litter on rural roads, when they go to their Monday night council meeting, I hope that they remember what was said about clause 16 today.

953. The Department has explained enough, and I do not think that we need any more information. I am afraid to ask for suggested amendments. Are members content with the Department’s explanation?

Members indicated assent.

954. The Chairperson: We still have to get the guidelines and everything else back.

955. Mr Gray: The enforcement guidelines are comprehensive, and they will be subject to full consultation. We are talking about a big document.

956. The Chairperson: There is no point in bringing in a clause without enforcement powers to implement it and to follow-up on the implications of those actions.

957. Clause 17 concerns litter clearing notices. Although the clause was generally welcomed, issues were raised about the 28-day compliance period, the exemption of Crown land, the extent to which litter abatement notices can be issued by councils, the need for national indicators and maintaining standards, and other exemptions. Robert, in the short time that is available, will you go through each of those issues, after which I will open the session to questions from members?

958. Mr Gray: Clause 17 is probably one of the most powerful clauses for dealing with litter, as it strengthens councils’ powers to deal with litter in a much more streamlined way than before. Under the provision, councils will be able to serve a litter clearing notice on occupiers or owners of any land in its district that is open to the air. If that does not happen, the council will be able to clear the land itself and recover the costs for doing so. Failure to comply with a clearing notice will be an offence.

959. I will turn to the various issues that were raised. The 28-day compliance period was criticised for being too long. The new provision will replace litter control areas and simplify procedure. Starting from the day on which the notice was served, a person served with a litter clearing notice will be given 21 days in which to appeal to the court, which will quash the notice, modify it or dismiss the appeal. The 28-day compliance period is, therefore, not considered to be unreasonable, given that it includes a 21-day appeal procedure.

960. Concern was expressed about the fact that clause 17 will exempt Crown land or land belonging to an education institution —

961. Mr Dallat: Why will education institutions be exempt?

962. Mr Gray: Those bodies will be exempted because, under the Litter (Northern Ireland) Order 1994, they already have a duty to ensure that their land is kept clean.

963. Mr McGlone: If they are under a duty and they are to be exempted, will there not be a conflict?

964. Mr Gray: No. The Department —

965. Mr McGlone: I will clarify what I mean. What duty are they under and how is it enforced? Is it through the education and library boards? Who has the duty, and which agency is responsible for compliance?

966. Mr Gray: The duty is on the education institution or the statutory undertaker. If the duty is not complied with, the relevant council — Jackie will correct me if I am wrong — can take action.

967. Mr McGlone: But, not under this legislation?

968. Mr Gray: No. Issuing a litter clearing notice would be a double whammy for such institutions, because they are already under a duty. Litter clearing notices will deal with land that is not subject to an existing duty to have litter cleared. It is quite a powerful proposal.

969. There is a range of issues, and I will go through them quickly.

970. The Chairperson: Go through them very quickly, please. Members have the packs.

971. Mr W Clarke: What is the rationale behind Crown lands being exempt? I can understand the situation with education authorities and the Department of Education. You said that Crown lands such as beaches and shorelines were exempt.

972. Mr Gray: Beaches and shorelines are not exempt; they are district council land.

973. Mr W Clarke: No. That is Crown land. Some elements are council land, but other elements are Crown land.

974. Mr Gray: The Litter (Northern Ireland) Order 1994 imposes a duty on whoever occupies that Crown land to keep it clean. If that is not complied with, the district council can take action against the Crown. Is that right, Jackie?

975. Mr Lambe: Yes. The provisions in the Litter (Northern Ireland) Order 1994 apply to the Crown. Therefore, if a council feels that a Crown body or other statutory undertaker is not —

976. Mr W Clarke: Does it not say that Crown lands are exempt?

977. Mr Gray: Crown lands are exempt from the provisions concerning litter control notices.

978. Mr W Clarke: I am confused.

979. Mr Gray: I will give you an example. Say, for instance, an individual’s private garden is in an appalling mess because of litter. At the moment, the council has to go through quite a procedure to try to deal with that. Under the new provision, it can serve a notice to instruct the owner to clean it. If the owner does not clean it, the council can go in and clean it and recover the cost of doing so. At the minute, that owner is not under a duty to keep it clean, but Crown bodies and statutory undertakers and so on are already under an existing duty to keep their land clean.

980. Mr W Clarke: I do not mean to hold you back, and I appreciate your explanation. What about the likes of Crown land, forestry land and areas under the remit of the Rivers Agency that are not being cleaned? You are telling me that, under this provision, they are exempt.

981. Mr Gray: They are exempt from this specific provision regarding litter control areas, because they are already under a duty. If they do not comply with the existing duty, it is up to the councils to do something about it and tackle them.

982. The Chairperson: I understand that. At the minute, they are duty-bound to keep their land right. Come the enforcement and implementation, the council will be able to go after them and make sure that they do that. Mr Weir, you wanted to say something.

983. Mr Weir: My point has been clarified.

984. The Chairperson: Mr Clarke, you are obviously still not content.

985. Mr W Clarke: How can a local authority go after the Rivers Agency to make it clean its land? How can the council go after the Forest Service to make it clean its land?

986. Mr Gray: Would it be helpful if I were to explain that in a letter? I will set it out in bullet points.

987. Mr W Clarke: I would appreciate that.

988. Mr Kinahan: At a litter convention in Craigavon, one of the key points put by the Mallard Consultancy lawyer was that we should expand the litter control notices so that they deal specifically with the sale of food and drink and where the associated litter goes afterwards. Therefore, it will not only be about the premises around which the litter is found but about being able to identify the litter, wherever it has been thrown. If we specify it, it can be dealt with straight away, instead of leaving it. They said that we should expand that.

989. Clause 17 would insert new article 12A into the Litter (Northern Ireland) Order 1994, and that article refers to:

“land in its district which is open to the air."

990. Should we not be looking at it more from a visual point of view and calling it an eyesore? Is there a different way of wording it?

991. A belt-and-braces approach should be taken to what we have just been discussing. If we can tackle someone in two ways, that is better than tackling them in one way. When it comes to schools, the councils have the power; that is the belt. The braces are that the issue is meant to be tackled through the education system. The same goes for Crown land. We need every tool we can get if we are to tidy up Northern Ireland.

992. Mr Gray: The council can apply litter clearing notices and provisions to any land in its district, but Crown land is exempt here because the Crown is already under a duty to clean it up. There are no restrictions when it comes to someone organising an event on the land.

993. Mr Kinahan: So, are you happy enough that it covers everything?

994. Mr Gray: I think so, yes.

995. The Chairperson: Following on from that, if it comes to the bit and the Crown does not clean the land up, does the council have the power to go in and clean it up and recover the costs?

996. Mr Lambe: Article 12(1) of the 1994 Order states that, where a district council is satisfied that any relevant Crown land, any relevant land of a designated statutory undertaker or any relevant land of a designated educational institution is defaced by litter, or that defacement of it by litter is likely to recur, the council can serve what is called a litter abatement notice. That is separate to the litter clearing notice that we have been talking about. That power currently exists, and the notice can require the relevant body to take the steps that are specified in the notice. Again, there is an appeals process within that notice-serving provision.

997. Mr Kinahan: We want to get up speed. It is about the pace of dealing with this.

998. Mr Lambe: Again, if taken to court, a person found guilty of an offence should be liable on summary conviction to a fine not exceeding level 4 on the standard scale, which is £2,500. If they continue to fail to comply with the notice, there is provision for a continuing daily offence of one tenth of the level four fine. The onus is on the statutory undertaker to comply with the notice.

999. Mr Kinahan: What is the timescale? I presume that, if there is a legal challenge —

1000. Mr Lambe: It is 28 days; 21 days is the period for an appeals process within that notice-serving provision. It is for the court to take the final decision on whether a person has complied with or breached the terms of a litter abatement notice. I think that that is maybe what was confusing earlier. We were talking specifically about a litter clearing notice, which is a new provision. This is an existing provision in the 1994 Order.

1001. The Chairperson: I do not want you to answer right away, but can you get me some information on exempt land, on actions that have been taken and on whether fines have been levied against anyone who did not adhere to a duty?

1002. Mr Gray: I am not aware of —

1003. The Chairperson: Is there any way of getting any information on that?

1004. Mr Lambe: We will do our best.

1005. The Chairperson: I would imagine that any such action would be very limited. OK, thank you gentlemen. I think that we have gone through that thoroughly enough.

1006. We move on to clause 18, “Street litter: control notices". We were generally content with the clause and welcomed it, but there were two issues: the need to include offices and commercial premises in measures to control waste left outside by smokers and the inclusion of all land in the open air and highways. Can you briefly go through that?

1007. Mr Gray: There was a request to expand the legislation to cover offices, commercial premises and so on. This relates to the control of litter dropped by smokers standing outside pubs, clubs and restaurants. The Department proposes to handle the matter through subordinate legislation. The Street Litter Control Notices Order (Northern Ireland) 1995 specifies the description of commercial or retail premises. The Department proposes to amend that legislation so that it can deal with smokers and so on standing outside those premises. That will also be subject to full consultation. It is another example of the subordinate legislation guidance that will flow from this Bill to deal with those sorts of situations.

1008. The regulations will cover the need to have parity with England on fixed penalty notices so that they will be applicable to all land in the open air and on highways. Is that right, Jackie? We will deal with that issue in subordinate legislation that will be brought forward after the Bill is enacted.

1009. The Chairperson: As soon as the Bill is enacted?

1010. Mr Gray: Yes. There are about 14 sets of regulations, if I remember correctly, and a dozen guidance documents that flow from the Bill. One of those will be about preventing cigarette litter.

1011. The Chairperson: I agree with you, but they need to hit the ground running. The Committee raised some issues in that regard.

1012. Mr Weir: That might not be the most appropriate choice of phrase.

1013. The Chairperson: OK. Are we happy enough, members? Are there any other questions?

1014. No issues have been raised in connection with clauses 19 and 20. There were a few issues with clause 21, “Controls on free distribution of printed matter": the need for clarity on the powers that councils will have to control the free distribution of printed matter; the difficulty of determining whether a person who is distributing leaflets is aware of a designation; the need for powers of investigation for councils; clarification of the land designation process; the introduction of fixed penalties for failure to adhere to conditions set for leaflet distribution; the need for designating areas for distribution; and concern regarding restriction of religious and cultural activity and appropriate equality proofing.

1015. I know that I have gone through those quickly, but you are familiar with them.

1016. Mr Gray: Those are quite precise comments. Clarification of the powers that are available will be covered in comprehensive new guidance, subject to full consultation. The Bill makes it clear that it is an offence to distribute, commission or pay for the distribution of free literature without consent in a designated area. Those who commission such literature are equally liable.

1017. There is a comment that the Bill makes a distinction in the offence of distributing leaflets without consent between those who distribute the leaflets and those who cause another person to distribute the leaflets. Each council is required to keep a copy of street litter control notices and orders designating land where free literature cannot be distributed without consent on a register that must be available at all reasonable times for public inspection. In addition, each council will need to ensure that they adequately publish details of land in their areas that has been designated. Details and information related to that matter will be covered in the guidance documents.

1018. In the case of a person who commissions the distribution of leaflets, the burden of proof is less onerous. It was commented that, in order for council enforcement officers to successfully determine the identity of a person responsible for commissioning leaflets, councils will require powers of investigation. The provisions of the Bill are being inserted into the Litter Order. Article 20 of that Order provides district councils with a general power to obtain information. So, we feel that the matter is already covered in that Order. A point was made about clarification, all of which will be covered in our guidance document, subject to full consultation.

1019. The next point concerned the fact that a council may grant consent, with conditions, to prevent defacement. There was a request to provide further clarification on that; again, that will be covered in the guidance document. Jackie was looking at the next point, which was to do with making it an offence to fail to adhere to the conditions set for leaflet distribution. That is quite complicated.

1020. Mr Lambe: I will try to simplify that one. Essentially, the Department’s approach is that, if someone has consent from a council to distribute free literature and that consent has a number of conditions attached to it, any breach of any of those conditions will mean that that person is no longer complying with the consent and is, therefore, guilty of distributing free literature in a designated area without consent. Therefore, we did not feel that there was a need to specify that breach of a condition will lead to further action by the council. It is automatically implied that that will happen if people do not comply with the consent that they were granted by the council originally.

1021. Mr Gray: We are issuing guidance on this. The next point is concern about the potential restriction of religious and cultural activity and appropriate equality proofing. The Bill already makes it clear that material distributed for charitable, religious or political purposes is exempted from this requirement, so that is not an issue.

1022. The Chairperson: Take, for example, a small business that wants to advertise. They print material and set it on cars. We have talked about this before, but, in a nutshell, is there provision to allow that, or are we looking at stopping it altogether? Will you clarify that?

1023. Mr Gray: There is provision to allow that. We are trying to deal with people who stand outside the front of CastleCourt handing out leaflets, and five minutes later, the area is covered in them. If the Bill goes through, people will need the approval of the district council to do that. It will be up to councils to decide how they go about that.

1024. The Chairperson: So, anyone who wants to distribute leaflets in any way, whether on cars or wherever else, will have to get approval.

1025. Mr Gray: They will have to get consent.

1026. Mr Dallat: I am trying to understand this. So, it will be the council, rather than the Bill itself, that decides whether or not this is against the law. The Bill merely gives councils the power to decide.

1027. Mr Gray: The person will have to get permission from the council to distribute material within the council area.

1028. Mr Dallat: I overheard the remarks on the far side of the table about the exemption of political literature; that will go down well with the public. One of the biggest problems in designated areas is access for disabled people, such as wheelchair users. If a council bans the handing out of literature, which presumably directs people to particular restaurants, shops or whatever, surely we will get a proliferation of sandwich-board men, fingerposts and all the other obstacles that are there already and that councils and the Department do nothing about. We will stop pieces of literature falling but replace those with obstacles that are far worse for people who have difficulty negotiating around them.

1029. Mr Gray: I would be surprised if the council decides to ban the distribution of leaflets. The council is likely to tell people that there are conditions to distributing literature. We do not want to see literature lying all over the ground. It is difficult to know until the thing starts to work in practice. It is not seen as a measure for councils to ban leafleting. It is more about trying to control it.

1030. Mr Dallat: Councils are responsible for promoting musical events, cultural events and a whole lot of other things that are intended to make tourists happy. There is no way to do that other than to hand out their little glossy A5s or whatever. That happens all over the world, and there is not a problem with it.

1031. Mr Gray: Yes.

1032. Mr Weir: There may be a misunderstanding here. It is not a question of councils having the power to simply impose a blanket ban; it is that anyone looking to do this will require the council’s permission. A council could be in legal difficulty if it produced a blanket ban, because it would be judicially reviewed. Presumably, the gist of it is that each application will be treated on its merits.

1033. Mr McGlone: You mentioned CastleCourt, where a few people, maybe from overseas, try to get a lock of pennies by dishing out leaflets for different things. I am intrigued by the outworking of this. Prime locations are always used for handing out leaflets. I am trying to figure this out in my head. If, say, two, three, four or five businesses that are in competition all decide to leaflet at a particular location because it is advantageous to their business, the council could do only one thing, and that is grant permission to all those businesses. It could not grant permission to one business and not the others, could it?

1034. Mr Lambe: The council must be in a position to justify whatever decision it makes on an application for consent to distribute literature in a designated area, and, in the interests of equality, those decisions must be entirely transparent. If one person were granted consent and another who felt equally justified in applying were refused, it would be open to that person to have the council decision judicially reviewed. Councils need to take into account factors such as potential follow-on costs from any decision, as they do with any current decision-making powers.

1035. I can see the difficulty in the situation that you outlined, but the designation mechanism is primarily a control and management mechanism. Councils can use it to better control and manage the distribution of free literature in designated areas that have proven to be a particular problem in the past. It is not designed to allow councils to impose a complete ban.

1036. Mr McGlone: That is my point. We seem to be getting to the nub of the matter. Essentially, it is a mechanism by which councils can approve nearly everything that comes their direction, whatever that might be. If councils do not approve virtually everything that comes their direction, it is going to be a handlin’. Very few businesses have the financial wherewithal to take judicial reviews, but there is always the Equality Commission and all those sorts of bodies. In essence, all that the provision will do is introduce a formal process that will approve virtually everything that comes the direction of councils.

1037. Mr Lambe: Through that formal process of registration, the councils have additional information to take action over litter. They will have the names and addresses and whatever else they need to secure prosecutions. At the moment, the situation is uncontrolled, and, unless a person is caught in the act, it is difficult to prosecute either the promoter or other vested interests.

1038. Mr McGlone: If someone applied for permission and the council later found them to be guilty of the disposal of litter as you have outlined, could that be used as a reason not to give that person permission again?

1039. Mr Lambe: It is in the Bill that, if a person is guilty of such an offence, they can be banned for a period and will not receive further consent to distribute in the area. So, if someone gets consent but does not comply with the agreement and is found guilty of breaching its terms, councils can take that into account when considering future applications.

1040. Mr T Clarke: I understand why you are trying to control who can distribute leaflets and why people must stick to guidelines. However, if leaflets are dropped, surely responsibility lies with the person who dropped them rather than with the person who distributed them. Who picks up the tab then?

1041. Mr Gray: In such a case, the person who dropped the litter will have committed an offence.

1042. Mr T Clarke: The person who is distributing the leaflet is not going to drop it, because he is there to promote something. You said that, if there is a problem, the council will know who to get back to. However, a promoter pays to have that literature printed and pays for someone to distribute it, not drop it. So, how will that give councils something to go back to?

1043. The Chairperson: To be fair, Mr Clarke, if you have permission to distribute leaflets, you have a responsibility to distribute them and look after where they go. Somebody has to be held accountable.

1044. Mr T Clarke: There is no accountability mechanism in this.

1045. The Chairperson: No, there is. If you request permission from a council to distribute leaflets, you have a responsibility for those leaflets.

1046. Mr Gray: I think that the council would be at liberty to tell people who want leaflets distributed that they should be telling those handing out the leaflets to say to people, “Do not drop them."

1047. Mr T Clarke: We live in the real world.

1048. Mr Gray: I am trying to put it to you in practical terms. It is really just an additional measure to try to reduce litter.

1049. Mr T Clarke: That is absolute nonsense.

1050. The Chairperson: Can you come back to us in writing on that? We could be here all day. We will just clearly outline how you propose to deal with that. It is a valid point that people walk off and fire leaflets away.

1051. Mr Savage: Most of us are involved in the political world, and, in two or three months’ time, everybody will be handing out leaflets. We had better be very careful how we do that. I agree in theory with what the two men at the bottom of the table are saying, but, in practice, will it really work? Somebody is going to have to say, “That is the way it is". The principle is right, but how will it work? I am thinking of the wee man standing on the corner handing out religious tracts. That happens every day of every week, and we have to be very careful about those things. Those people are there with good intentions, as are the people who are hand out political leaflets. If we pass something, we have to be careful to ensure that we can make it stick.

1052. Mr W Clarke: Religious material is exempt.

1053. I do not think that this is complicated. At the end of the day, councils will draw up a policy on the distribution of material. Certain conditions will be imposed on the business or on the promoter, and they will have to abide by them. They may have to enter into an agreement whereby they clean the area every hour or whatever. I think that it is quite simple, to tell you the truth. It happens with fast food trailers and the like; the council imposes the condition that those running them must clean up the area afterwards.

1054. Mr Gray: I could not have explained it better myself.

1055. The Chairperson: That is a typically common-sense approach.

1056. Mr Weir: I wonder whether we are missing a trick here, because the second bit of the proposed new article is on the designation of areas. We are looking at a situation where there is blanket cover, but presumably councils could use the power in very discrete areas where there has been a specific problem. In that way, they could try to exclude leafleting in a particular area. They might also be worried about contamination in, for example, an area just beside a particular beauty spot that they wanted to ensure was kept pretty clean. There would, presumably, be quite geographically limited designations. You may not necessarily be that worried about people handing out leaflets in town centres, but you may well want things to be kept fairly tidy outside a particular building because it is a tourist attraction, for instance.

1057. Mr Gray: They would have the discretion to do that.

1058. Mr T Clarke: Can we get a legal opinion as to whether councils could restrict or refuse people if they get this power? It seems to me that we are passing on another burden to councils. If it comes to a challenge, the council will be burdened by having to refuse or approve.

1059. Mr W Clarke: Councils would have a policy.

1060. The Chairperson: On the legal side —

1061. Mr Gray: Paragraph 3(3) of proposed new schedule 1A to the 1994 Order, as inserted by clause 21, states:

“A district council need not give consent under this paragraph to any applicant where it considers that the proposed distribution would in all the circumstances be likely to lead to the defacement of the designated land."

1062. The council can, therefore, refuse to give consent if it thinks that a person would be unscrupulous or that it could lead to a place being turned into a mess.

1063. Mr T Clarke: I still think that that leaves councils in a very precarious position. What has NILGA said about that?

1064. The Chairperson: We need to find out about the legal position. Will you do that for us, Mr Gray? I do not see an issue with the wording. In fact, I think that it is a common-sense approach. However, a member has asked a question, so we need to address that.

1065. Mr Gray: What would you like to get a legal position on exactly?

1066. Mr T Clarke: The Bill states that councils may refuse to give their consent for the distribution of printed matter. However, how can they differentiate between one applicant and another? You said that a council could refuse consent if it believed that an applicant might cause a problem. However, how would the council know whether someone is likely to cause a problem unless he or she had actually done so? If councils buy into this, will they be leaving themselves open to a legal challenge by individuals or companies if they refuse consent?

1067. Mr Gray: We will look at that.

1068. The Chairperson: Clause 22 is entitled “Fixed penalty notices: supplementary". The Examiner of Statutory Rules suggests that the power in the clause should be subject to draft affirmative procedure. Will the Department draft an amendment to reflect that?

1069. Mr Gray: Is that on affirmative resolution for fixed penalties?

1070. The Chairperson: Yes.

1071. Mr Gray: The Committee already raised the same point about clauses 4 and 7. That is presently with the Minister, who needs to approve the answer.

1072. The Chairperson: You will bring along an amendment. Thank you.

1073. The Chairperson: Clause 23 deals with the exclusion of liability. No issues were raised in relation to this clause. Clause 24 deals with abandoned shopping and luggage trolleys. Members welcomed this clause. However, they suggested that the provision be extended to cover cages and baskets left in public places. Mr Gray, do you wish to comment quickly on that suggestion?

1074. Mr Gray: We viewed that as quite a significant proposal. We had not considered it, and it would require detailed consideration and an amendment to the Bill. Furthermore, the proposal has never been consulted on. We talked about it recently and agreed that there are also practical issues involved. As you said, for example, baskets from local supermarkets have no identification marks. However, something could be brought forward in future. We would not have the time to do so now. That is a significant proposal, in our view.

1075. Mr T Clarke: I disagree. Shopping trolleys lying in hedges and rivers are easily identifiable.

1076. Mr Gray: We are talking about shopping baskets.

1077. The Committee Clerk: The proposals cover trolleys. However, the stakeholders suggested that they should also cover baskets.

1078. Mr T Clarke: I thought that you meant that trolleys could not be covered in the proposals.

1079. The Chairperson: No, baskets are not covered.

1080. Are members happy enough with that explanation?

Members indicated assent.

1081. The Chairperson: Clause 25 is entitled “Section 24: transitional provision". No issues were raised in relation to this clause.

1082. Robert, we have to move on. However, we will no doubt get you back to finish this.

1083. Mr Gray: Are we not doing Part 5?

1084. The Chairperson: We could start Part 5, but we would be here to 5.00 pm. Thank you very much.

9 December 2010

Members present for all or part of the proceedings:
Mr Cathal Boylan (Chairperson)
Mr Trevor Clarke
Mr Willie Clarke
Mr John Dallat
Mr Peter Weir

Witnesses:

1085. The Chairperson (Mr Boylan): We welcome Denis McMahon, Paul Byrne, Helen Anderson and Jennifer Stewart from the Department of the Environment (DOE). They are with us to discuss the High Hedges Bill.

1086. We previously got to clause 5, so we will start at clause 6. A few questions were asked about that. We will go through each clause and get a response from you. Hopefully, Mr Weir will be back by that time, so we can try to get agreement on the clauses. [Inaudible due to mobile phone interference.] We will revisit clause 6 and the issue of appeals against remedial notices and other decisions of councils. I remind members that guidance on that clause is being drafted. The Department is engaging with the NI Courts and Tribunals Service and has held discussions with the Valuation Tribunal and taken account of its concerns. Trevor Clarke had asked a question about that.

1087. Mr T Clarke: Although we formally accepted clause 5, as we discovered later, the information on it may not have been accurate. Perhaps that is the best way to put it. I would prefer that we revisit clause 5 before going to clause 6 so that we can clear up any issues with that information.

1088. The Chairperson: We would like clarification on clause 5.

1089. Mr Denis McMahon (Department of the Environment): The key thing about clause 5 is that it is a normal provision for the purposes of providing flexibility in the event that circumstances change between the time that a notice is issued and when it takes effect. For example, if a complainant moves house and the subsequent owner decides that they do not mind the height of the hedge or they would like it to be higher because they want a bit of privacy, the flexibility in that situation would be allowed.

1090. Mr T Clarke: I do not want to prolong this issue any longer than necessary. I do not want to rehearse what was said at the previous meeting, but, given what was said then, we could probably understand it and reach an agreement. However, we did not actually explore it, because a lot of what we talked about before we got to clause 5 was about who pays and at what stage someone does not pay. When I study it further, I find a problem with it. If there is an agreement, the complainant has paid the council to take action after following all the council’s informal guidance. The council then serves notice and takes money off the person with the high hedge. If an agreement is then reached, even with a withdrawal notice, does the complainant still get their money back at that stage? Can you clarify that? Where are we with fees if there is a withdrawal notice?

1091. Mr McMahon: That would depend on the specific circumstances. One of the problems is that any of those notices will apply over the longer term. Therefore, the issue is not just about cutting down the hedge; it is about the maintenance of the hedge. For example, someone may get a notice because that is the only way to resolve the dispute, and the hedge is cut down accordingly and is maintained to that level. Someone else may move in a year later and say that they do not mind the hedge or want it higher. The point is to allow such flexibility in those situations. In that case, if it was a year later, would it be appropriate to pay the complainant? The complainant got what they wanted and got the issue resolved while they were there.

1092. Mr T Clarke: They got it resolved, but at that stage, they have paid already. Is there still a provision for the complainant to get their money back?

1093. Mr McMahon: There is a provision for the complainant to get their money back anyway at the discretion of the council, if the circumstances provide for it. However, I stand to be corrected on that. The point that I am making is that it would not necessarily be automatically linked with the change in the notice, if you know what I mean.

1094. Mr T Clarke: OK; I am content with clause 5.

1095. The Chairperson: We agreed clause 5 at the previous meeting, but we wanted an explanation of it. Mr McGlone is not here, but both he and Trevor Clarke raised an issue about clause 6, which deals with appeals against remedial notices. Unfortunately, we cannot agree it, but I want clarification on the point that was raised. Can you remember back to that issue, Mr Clarke?

1096. Mr T Clarke: It was because there was confusion about clause 5. Even though I am satisfied with the explanation that I got today, I wonder why there would be an appeal against a decision, when, under the provisions that clause 5 will introduce, everybody should be content with the relaxation or withdrawal of the notice. Why would anybody appeal against that?

1097. Mr McMahon: Without having been at the previous meeting, and I apologise for that, my understanding is that the concern is that someone may make a mistake and put something incorrect on the remedial notice. Why should that be allowed to happen, with the result that there would be a lead-in to a big appeal process? The concern was that the explanation that had been given previously was to do with mistakes potentially happening with the notice. I will perhaps take this back a step: what I am trying to say is that, no matter how tightly we define it, there will have to be an element of judgement. We can, and will, give a lot of guidance, and we will work with councils on that. Ultimately, however, judgements will have to be made about the issues on a case-by-case basis. It all means that, if a council makes a judgement, a notice will need to be issued. The clause really just allows an appeal against that judgement, because people may disagree and say that the guidance has been applied incorrectly.

1098. The Chairperson: It is an appeals mechanism.

1099. Mr McMahon: It is a normal appeals mechanism, absolutely.

1100. The Chairperson: The person is entitled to appeal against it, and that is what we are putting in.

1101. Mr McMahon: Yes.

1102. Mr T Clarke: I understand the appeal against the remedial notice, but I cannot understand the appeal against the withdrawal.

1103. Mr McMahon: That goes back to the example that you gave earlier. For example, a complainant may have gone through the whole process and got to a certain point. The council may suddenly say that something has changed and that it is going to remove the remedial notice. The complainant might ask why the council suddenly changed its mind, especially after they went through the whole process and got where they needed to get to. At that point, if the complainant was not satisfied, they could challenge that decision.

1104. Mr Paul Byrne (Department of the Environment): The Bill is an attempt to cover all circumstances. For instance, if the complainant sells up to a commercial concern, which puts in a car park and asks the council to alter the remedial notice, the hedge owner can say that the remedial notice no longer applies and that they wish to withdraw it. The problem is that, for planning purposes, the commercial concern may wish the hedge to be maintained for the car park. There is therefore a need to allow an appeal against that decision.

1105. Mr McMahon: The key point to get across is that we do not expect that provision to be used. It is a normal catch-all in the event that a complainant makes a complaint, which goes through to remedial notice, and, for some reason, the council decides that, according to its guidance, the remedial notice should no longer apply. However, the complainant might say that it should still apply. The point is really just to allow the complainant or the hedge owner to say that that notice should or should not apply.

1106. The Chairperson: It is a difficult one to explain, to be fair.

1107. Mr T Clarke: Given what is in clause 5, if a mistake with the withdrawal is made under that clause, people need to be given the entitlement to appeal what they have determined is a wrong decision.

1108. Mr Byrne: That is exactly it.

1109. Mr T Clarke: My difficulty is that I cannot understand how people would ever withdraw. I am not trying to revisit the clause, but once people have gone through the whole process and served notice, I cannot see why they would ever want to appeal.

1110. Mr McMahon: One of the challenges is to understand that, with any of the notices, the issue is not just the initial cutting down of the hedge. The point is that notices could be in place for a number of years, so there has to be a certain amount of flexibility, because a lot could change. As I said, the hedge owner could move, and someone else could say that they think that there is now a different set of circumstances.

1111. The council could review its policy and say that, in the light of the most recent guidance, a notice that it issued a year ago does not apply any more. In that case, the council could decide that the notice no longer applied and the complainant who was still living at the same address could protest. The point is to allow that degree of flexibility.

1112. Mr T Clarke: It gives a degree of cover, I suppose. If a council makes a wrong decision, I can see that the complainant has protection against the council as well.

1113. Mr McMahon: That is exactly it.

1114. Ms Helen Anderson (Department of the Environment): That is particularly the case, given, as you will recall that the Bill deals with people’s personal enjoyment of their property, which includes hedges. It provides a degree of cover to ensure that everyone’s human rights are provided for in any eventuality.

1115. The Chairperson: You have seen examples of the complaints that people make and the situations that they can get into. People will go by the letter of the law when they make complaints, and we have to have those mechanisms in place for challenges and for protection. Are you happy enough with that explanation, Mr Clarke?

1116. Mr T Clarke: Yes.

1117. The Chairperson: I will go through the clauses, and, hopefully, Mr Weir will be back. I just want clarification on some points. Clause 7 deals with the determination or withdrawal of appeals. Thankfully, no issues were raised in the previous meeting about that clause. Clause 8 concerns powers of entry. I remind members that, where calls are concerned, council officers should be permitted to enter any land to enable proper assessment and that notice should have to be given only where necessary. The Department has indicated that, given the need for respect for privacy and family life, reasonable notice of intended entry needs to be given to an occupier of land. The standard practice is to give 24 hours’ notice. The Department also noted that it is not necessary to give notice to an owner who is not an occupier of the land in question. Notice does not have to be given if an officer is invited on to land. That seems pretty clear. Do members have any comments to make about the powers of entry?

1118. Mr W Clarke: Will a code of conduct be drawn up that sets out guiding principles?

1119. Mr Byrne: That will be in the guidance. This issue is to do with human rights, so there will be a code of conduct.

1120. The Chairperson: Clause 9 concerns offences. I remind members that concerns were expressed that problems will arise in determining which owner/occupier should be taken through the courts. It would be burdensome to take everyone concerned to court. The Department replied that it would not be appropriate to single out one individual, as the identification of an individual where several people may be involved could lead to unintentional discrimination. The clause ensures equal treatment of all. Several respondents called for the use of a fixed penalty notice option as an enforcement tool in the event of non-compliance with a remedial notice. The Department has, obviously, discounted that option, as there is a risk that hedge owners could pay the fixed penalty and not address the problem of the hedge, which is possibly the costlier element, and after that, there would be no comeback for councils.

1121. Mr McMahon: Again, the latter point refers to the fact that such issues take place over a long period. If I go back to the former point, I should say that we would not necessarily see taking action against multiple owners happening all the time. Not many of those disputes happen between groups of people, but, in the event that there is a dispute about the location and ownership of a hedge, the Bill provides enough cover to ensure that we are not missing anybody who should be included. We have a concern that picking on an individual in such circumstances could create challenges. It would bring us back to the appeals process.

1122. The Chairperson: Clause 10 deals with the power to require the occupier to permit action to be taken by the owner. No issues were raised about that. Clause 11 is “Action by council". I remind members that concerns were expressed about the fact that the Department will expect councils to act in default where a property is vacant. However, the Department indicated that there would be no obligation on councils to act in a default situation, as it is a discretionary power. In response to suggestions that it would be cheaper to remove a hedge where landowners could not be traced, the Department stated that the removal of a hedge without the hedge owner’s permission would constitute criminal damage.

1123. We have concerns about circumstances in which no one is available to be held to account for the condition of a hedge. I am happy enough with the explanation that has been given. Do members have any comments to make on that?

1124. Hopefully, we will also be able to deal with the vacant property issue. Most owners of those properties should have been identified through Land and Property Services by now. However, there is a gap and, hopefully, through this piece of legislation, we will try to get to —

1125. Mr T Clarke: Chairman, will the part of the clause that refers to “neighbouring land" give councils the power to go on to the land of someone who is not the hedge owner? Am I reading that right?

1126. Mr McMahon: It would be a hedge owner. However, it would be a vacant property, and councils would be able to go on to that property. The issue is about removing hedges; councils can cut down hedges —

1127. The Chairperson: Yes; it would be criminal damage if a hedge was removed without consent.

1128. Mr T Clarke: It says in the clause that councils will have the power to “enter the neighbouring land".

1129. Mr McMahon: That is right. I stand to be corrected, but as I understand it, this clause will give councils the power to cut a hedge down to a height of 2 m. However, they will not be able to remove hedges.

1130. Mr Byrne: In the Bill, the term “neighbouring land" means the land in which hedges are situated.

1131. Mr T Clarke: “Neighbouring" makes it sound as though it is —

1132. Mr Byrne: Yes; it makes it sound like it is the next property. In the Bill, the term “neighbouring land" is defined as the land that contains the hedge.

1133. The Chairperson: Thank you. Clauses 12, 13 and 14 deal with offences committed by a corporate body, the service of documents in electronic form, and statutory charges. No issues were raised about them.

1134. Clause 15 deals with interpretation. I remind members that NILGA expressed a view that the Department should give more detailed guidance as to what it means by “access" in the context of determining whether a hedge is the subject of a justified complaint. The Department stated that the words “or access" had been removed from the Bill following the public consultation, as the use of those words had caused confusion and uncertainty about the definition of a high hedge. Of course, the jury is still out on what a high hedge is and whether a single leylandii tree should be included. However, we will not debate that.

1135. NILGA also called for guidance on the potential creation of peepholes in hedges and what would be deemed acceptable. The Department stated that guidance will include the issue of gaps in hedges. Do you have any comments to make on that?

1136. Ms Jennifer Stewart (Department of the Environment): We will be preparing detailed guidance for councils to help them through the process. There will also be guidance for the complainant and the hedge owner so that they know what to expect. All the issues that were raised will be covered in the guidance, which should be available before the legislation comes into effect.

1137. The Chairperson: No issues were raised about clauses 16 to 20, which deal with power to amend sections 1 and 2, application to the Crown, regulations and orders, and commencement. No issues were raised about the long title. We will ratify all that when Peter Weir comes back.

1138. Those were all the questions that we have on the outstanding clauses of the High Hedges Bill. Thank you for clarifying Mr Clarke’s point. We all had a difficult time getting up here in the snow, and I appreciate your taking the time to come up. Could you please stay so that we can ratify things when Mr Weir comes back?

1139. Mr Byrne: I am here for the next session anyway.

1140. The Chairperson: OK. We now move to our informal clause-by-clause consideration of the Clean Neighbourhoods and Environment Bill. We will go through Parts 4, 5, 6 and 7 now. Members have a copy of the Department’s response on the level of Assembly scrutiny that is afforded to powers to change the level of fixed penalties in the Bill. There is also a response from the Committee for Social Development on the Bill. Are members content to note those documents?

Members indicated assent.

1141. The Chairperson: I welcome Hazel Bleeks and Jackie Lambe from the environmental policy division of the Department of the Environment. Denis McMahon and Helen Anderson are still with us.

1142. I remind members that this informal stage is the time to ask questions and seek clarification on the Bill. We will then discuss those points at the formal clause-by-clause scrutiny.

1143. We will start with Part 4 of the Bill, which generally covers graffiti and other defacement. Clause 26 concerns penalty notices for graffiti and fly-posting. I remind members that, although the clause was generally welcomed, several issues were raised. Those included the lack of consultation with small and medium sized enterprises (SME), the cost impacts that the proposals will have on them, the provision of alternative sites by councils, and the issuing of penalty notices to juveniles.

1144. Ms Hazel Bleeks (Department of the Environment): As part of the formal consultation process, we consulted the Federation of Small Businesses and the Northern Ireland Chamber of Commerce. Neither organisation raised any issue on the cost for small businesses.

1145. The Department has acknowledged that a different approach to the issuing of fixed penalties to children and young people is necessary, and we have undertaken to produce guidance for district councils on the issue.

1146. The Department feels that council provision of legal poster sites is a matter for individual councils. There is a difference of opinion as to whether sites should be provided for informal posters. Different councils have different views on that. In some cases, that is an issue for a particular council area. Therefore, we feel that it is a matter for councils to determine, rather than the Department having to require that those sites be provided.

1147. Mr T Clarke: I agree entirely that we should not be forcing councils to provide such sites. In fact, I disagree with there being any such sites.

1148. Mr W Clarke: Obviously, I disagree with Trevor, but that is par for the course. I think that there is an obligation in the legislation that clearly states that councils must provide an alternative site. For this legislation to mean anything, it should be compulsory for councils to provide such sites. We need to table an amendment to clause 26 to that effect.

1149. The Chairperson: If we are going down the route of preventing fly-posting, how can that be enforced? If the council does not provide an alternative site, how can the prevention of fly-posting be enforced? That is a problem that raised its head in evidence to the Committee.

1150. Mr T Clarke: If there is no fly-posting whatsoever, a ban on it might be easier to enforce. There are other methods by which businesses can advertise and that other enterprises can gain from. Fly-posting is a cheap and tacky method of advertising that people have been abusing for many years. We should not be promoting it at all.

1151. Mr W Clarke: What we are trying to do is regulate fly-posting in a controlled manner. On a designated site, someone could pay an income to the council to display their posters or product.

1152. The Chairperson: I think that having the option to do that is fine. That would provide a funding source as well, and it would give the councils the power to allow it if they so wished.

1153. Ms Bleeks: There is absolutely nothing to prevent councils from providing sites in those circumstances, if appropriate. We are saying that we do not think that it should be a requirement.

1154. Mr W Clarke: I think that this point is fundamental. The Department is telling a business owner that it is not allowed to fly-post, but, at the same time, the council says that it will not provide a display unit for the business. I think that that is unfair.

1155. Mr McMahon: We were trying not to give a view one way or the other through the legislation. We felt that, by including that as a compulsory requirement, we might be overriding individual council’s wishes. The whole Bill is framed around the perspective that councils are the best people to make these decisions because they know what the local circumstances are. For example, Belfast City Council looked at the issue and had some concerns about providing alternative sites, as that might encourage more illegal fly-posting. Therefore, the point is to try to get a balance. We were not saying that individual councils should or should not take a particular stand, but we were concerned that, if we put that into legislation, it might be overly rigid and would not allow councils the flexibility that they need. That is where we were coming from.

1156. The Chairperson: This does not apply completely, but, to be fair, I think that an element of how this came about is also connected to the advertisements such as one sees on big trucks on the edge of the motorways on the way into town. I know that there is difficulty with planning and even with getting signage itself through planning and so forth, and we are trying to take the burden of responsibility of enforcement in those cases. I am not saying that someone should take a massive 40 ft poster and put it on an alternative site somewhere; I am saying that part of the whole process of going through the Bill is to try to alleviate the pressures that the enforcement section of planning has in dealing with that. Do not get me wrong; I am not saying that it is right or wrong, but that is also part of the problem.

1157. Mr T Clarke: Unfortunately, I am recording that I agree with the Department today. I think that the direction that it is taking is right. You might find that we would criticise it if officials came with a big stick and said that councils must do this, because some councils might choose not to do it and would not want to be told by the Department that they must put up these billboards. Not every village or town in the Province has fly-posting, but if this provision is in the Bill, the Department is saying that councils must provide for fly-posters, whether they want them or not. The way that the Bill has been framed is that the councils have the opportunity, if they want to apply for the site and go through the proper planning process, to do so, and if they choose not to and the people in the area do not want it either, they do not have to do it. I think that we are going down a very dangerous road by asking councils to enforce that provision.

1158. The Chairperson: I am just teasing it out. I am not sending you down one road or the other. Mr Dallat, did you have an opinion on this?

1159. Mr Dallat: I am sufficiently confused. I sympathise to a large degree with what Willie is saying, but at the same time, Trevor also has a point. I think that councils should be encouraged to provide sites. Some of them do so on a voluntary basis, so it is perhaps best left like that.

1160. The Chairperson: We will have a final explanation of that point, and then we will move on.

1161. Mr W Clarke: The difficulty I see is that a particular council could have a great moral issue to consider; perhaps it could be anti-drink. At the same time, a business such as a nightclub may want to advertise. The council could take it upon itself to tell the business that it is not allowed to advertise and that it is not going to put a display unit up. I am not talking about fly-posting; I am talking about a tasteful display unit. The council could regulate what scale that would be, where it would be and whether it would be on council property or wherever. It could have complete control of what it did. I am not saying that there should be big billboards all over the place; I am talking about tasteful units to display or advertise a business. We will tease that out.

1162. The Chairperson: I thought that sufficient explanation had been given at the informal clause-by-clause scrutiny, but I can see that this man will have to come back to us. Thank you for the explanation. Is the Committee content with the explanation?

Members indicated assent.

1163. The Chairperson: Clause 27 deals with the amount of penalty. I remind members that the main concern about this clause is the impact —

1164. Mr W Clarke: Can we go back to the question of whether we are happy with the explanation of clause 26? I am not happy with it.

1165. The Chairperson: I will put the Question on the clause when Mr Weir gets back. I was asking whether we are content with the explanation or whether we want to change it. The Department has explained the issues. If we, as a Committee, want to look at amendments, we can do that. At the minute, we are just going through what the respondents said and getting explanations and clarification.

1166. Mr W Clarke: OK.

1167. The Chairperson: The main concern about the amount of penalty is the impact that it would have on children and young people. I invite the departmental officials to comment and ask them to confirm that they will include an amendment to make the power in clause 27(5) to change the amount of fixed penalty subject to draft affirmative procedure.

1168. Ms Bleeks: We covered the issue of fixed penalties for children by saying that we will deal with it in guidance, and we appreciate that a different approach is needed. The Department also undertakes to take forward the amendment for the amount of the fixed penalty to be subject to affirmative resolution.

1169. The Chairperson: Thank you very much for that clarification. You clarified the point about the impact of penalty notices on children and young people. I do not think that there are any other real issues with that clause.

1170. Clauses 29 and 30 —

1171. Mr W Clarke: What is the age that children can be given a fixed penalty?

1172. Ms Bleeks: Do you mean the minimum age?

1173. Mr W Clarke: Yes.

1174. Ms Bleeks: The minimum age is 10.

1175. Mr W Clarke: Does that mean that you will criminalise children at the age of 10? Does the Committee not have an issue with that, Chairperson? I certainly have an issue with it.

1176. The Chairperson: You are asking a different question. I am going only by what is in the document and on what we have looked at. However, members are entitled to ask any questions that they want to. The explanation about the age was specific, but you are entitled to seek further clarification, Mr Clarke.

1177. Mr W Clarke: All I am saying is that it is unacceptable to criminalise children at the age of 10. In my opinion, even 16 years of age is borderline, but I suggest that the Department look at a minimum age of 16 rather than 10.

1178. Mr T Clarke: Surprise, surprise: I totally disagree. If we have a problem with litter, regardless of whether the person is aged 10, 16, 13 or whatever —

1179. Mr W Clarke: We are dealing with graffiti.

1180. Mr T Clarke: OK, graffiti — it is still the defacement of someone else’s property. I am not trying to stray from the subject, but, over the past number of months, young people have been used to orchestrate violence on the streets of our Province. Why should those young people be treated any differently from someone who has turned 18? If they have been involved in certain behaviour, which, in this case, concerns graffiti, they should be punished. I have children of my own. If any of them came home with a fixed penalty because they had been involved in something like that, I, as a parent, should be responsible and pay it. Why should we wrap them up in cotton wool? If they are guilty of committing a crime, they have to be penalised.

1181. Mr W Clarke: Fair enough. If you are going to go down that line, make the fixed penalty out to the parent rather than to the child.

1182. Mr T Clarke: That is fine. I would probably accept that.

1183. The Chairperson: I completely understand. I remind members that we are going through the clause-by-clause analysis document. No comments have been made on some of the clauses. Members are entitled to ask any question on any clause, and this is the place to do that. For clarification, does the age issue tie in with this Bill or other legislation?

1184. Mr McMahon: We have worked closely with the Department of Justice and have based these elements of the Bill on the wider approach that is taken on the age of criminal responsibility and so on. However, if the Committee has specific concerns with that approach, we are obviously happy to look at them. We have sought to base this aspect of the Bill on the wider approach to criminal justice; we have not tried to introduce a new approach.

1185. The Chairperson: That is a valid point. Can we look at the question of who the fixed penalty is issued to?

1186. Ms Bleeks: That could be looked at in the guidance.

1187. The Chairperson: That would be a better idea, and I think that the Committee would agree with that. Obviously, someone has to take responsibility, but, as Trevor Clarke said, there is a problem. Some of the behaviour involves young children; indeed, I have seen some throwing snowballs, which they get warnings for. They might be throwing snowballs at cars, but it does not matter what the behaviour is; it is antisocial behaviour, and it is happening at the minute. We should look at the element of who receives a fixed penalty and who is responsible for it. Can you bring something back on that? We might be happy to go down the route of having that in the guidance.

1188. Mr McMahon: Yes.

1189. Mr W Clarke: I agree with you and with Trevor that some sort of deterrent is needed. A better option for the age group between 10 and 16 would be some sort of course on, for example, litter or graffiti. They could go to a workshop or something similar with their parents.

1190. Ms Bleeks: That will be looked at in the guidance. We are not suggesting that issuing a fixed penalty to a child is our first option. However, it is there, and it can be used in certain circumstances. That said, there are other steps that we would want to take prior to issuing a fixed penalty.

1191. Mr W Clarke: I am happy with that explanation. You would get more out of it, the child would get more out of it, and the parents would obviously get more out of it.

1192. The Chairperson: The legal question of issuing a penalty to a parent would need to be looked at.

1193. Are members content with that clarification?

Members indicated assent.

1194. The Chairperson: Clauses 29 and 30 deal with penalty receipts and guidance respectively. No issues were raised on those matters. Members can ask for points of clarification on those clauses. I see that no members want to ask any questions, so are you content with those clauses?

Members indicated assent.

1195. The Chairperson: Clause 31 deals with defacement removal notices, and some concerns were raised about those. For example, concerns were raised that the proposed timescale of 28 days for removal is too long. There were also concerns about the need for a power to prosecute the owner of defaced street furniture, a well as on the differences between the Bill’s proposals and article 18 of the Local Government (Miscellaneous Provisions) Order 1985, which gives councils the power to remove graffiti and fly-posting.

1196. Ms Bleeks: I will talk about the comments that were made about the 28-day period being too long. It is important to make a distinction in that. There is already provision in legislation that allows councils to remove graffiti and fly-posting from property. In certain circumstances in those cases, councils can act immediately. The purpose of the defacement removal notice provisions is fairly specific. They aim to encourage the owners of street furniture, that is, statutory undertakers and so forth, to work with the councils to remove defacement from their property. In those circumstances, we think that 28 days is appropriate to give them notice asking them to remove that defacement. They will be told that if they do not remove it, the council will come in and remove it.

1197. Mr T Clarke: I may have missed something, not necessarily on that point, but on wider issues. Are you saying that, if I owned a redundant property and someone put a advertisement for a nightclub on it, as the owner, I would be responsible?

1198. Ms Bleeks: No. Privately owned property will not be affected. It refers only to —

1199. Mr McMahon: Electricity boxes, for example, would be covered.

1200. Mr T Clarke: In that example, would the utility company be responsible?

1201. Ms Bleeks: Yes. We are trying to —

1202. Mr T Clarke: Surely that is unfair. Should it not be the responsibility of the person who fly-posted illegally on the utility’s property?

1203. Ms Bleeks: It is also in the utility’s best interest to make sure that their property is kept free of that defacement.

1204. Mr T Clarke: I am concerned that we are putting an onus on a utility company, if we are using them as an example, to keep their property free of that defacement, even though the person who put it there is the one who committed the offence.

1205. Ms Bleeks: Yes, and that will not affect that person’s being prosecuted for the offence. The two things will work in tandem. It will not detract from taking action against the person who committed the offence.

1206. Mr McMahon: It is not an either/or situation.

1207. Mr T Clarke: I am not against nightclubs, but the other problem that I have with this 28 days’ provision is that, although many people defend fly-posting, most of it is for events or concerts or whatever is coming up. Most posters are up, and the events are over before the 28 days are up anyway, so the impact of allowing the fly-posting to continue has not been lost. There should be no time limit at all. Fly-posting penalties should be immediate.

1208. Ms Bleeks: You are right, and, in those circumstances, when new fly-posting goes up, the existing legislation, which allows councils to act immediately, will come into play. A defacement removal notice under the 28-day notice regime is specifically targeted at the removal of the remnants of old posters and stickers that have built up over time, and the aim is to encourage the utilities to work with councils to remove them. However, new fly-posters will still be targeted immediately under the existing legislation.

1209. Mr T Clarke: I am confused too, sorry. I apologise for that.

1210. The Chairperson: The power to prosecute the owner is needed. What is the difference between the Bill and the Local Government (Miscellaneous Provisions) Order 1985?

1211. Ms Bleeks: That Order is the other piece of legislation that I was referring to; it is the existing legislation that allows councils to act immediately.

1212. The Chairperson: Are there any other questions? Are members content with that explanation? I apologise; will you clarify the need for a power to prosecute the owner of defaced street furniture?

1213. Ms Bleeks: That would fall under the defacement removal notice procedures, and, in those circumstances, we do not feel that it would be appropriate to have the power to prosecute the owner. Coming back to what Trevor Clarke said, that person is a victim to some extent, and we do not think that they should be prosecuted.

1214. The Chairperson: No problem. I just sought clarification on that. Thank you. Are members content?

Members indicated assent.

1215. The Chairperson: Clause 32 deals with the recovery of expenditure. I remind members that concerns were raised that the clause would reduce the councils’ powers to deal with fly-posting. Are there any comments on that?

1216. Ms Bleeks: I am not sure how that clause can be seen as reducing the powers of councils to deal with fly-posting.

1217. The Chairperson: On clause 32, NILGA commented: “The recovery of costs for the removal of the notices is not an appropriate substitute for powers of prosecution, which would act as a better deterrent and allows a more robust control measure to deal with the problem of fly-posting."

1218. Ms Bleeks: Those powers are not an appropriate substitute, nor are they intended to be a substitute. There is no reason why the council cannot remove the defacement and recover the costs. Both approaches can be followed. We are seeking to give councils the power to take prosecutions for fly-posting. They do not currently have such powers, but we are seeking to provide them.

1219. The Chairperson: Thank you. These are issues that were raised and on which we are seeking clarification.

1220. Mr T Clarke: I welcome councils’ being given more powers, but I am nervous that it may be a bit like the on-street drinking regulations. Sometimes, the problem is in giving councils the power to enforce those regulations. We would need to consider the level of fines that are available, because, if we look at the cases of on-street drinking in any of our boroughs, it costs the councils almost four times more to take a person to court to get them fined than is returned in that fine. I do not know how that conversation will be had, but I am concerned that another burden may be created for councils by encouraging them to prosecute at a cost that, compared with the fine that is levelled, is prohibitive.

1221. Ms Bleeks: It is already an offence to fly-post, so we will not be creating a new offence. We will really only be giving the council the power to take prosecutions for that offence. Therefore, the levels of fine and so on are already in legislation; they are not in the Clean Neighbourhoods and Environment Bill. That is provided for in planning legislation. Councils have asked for, and are very keen to get, those powers.

1222. The Chairperson: Are members content with that explanation?

Members indicated assent.

1223. The Chairperson: Clauses 33 to 35 deal with guidance, appeals and exemption from liability where defacement removal notices are concerned. No issues were raised about those clauses. Are members content?

Members indicated assent.

1224. The Chairperson: Clause 36 deals with the sale of aerosol paint to children. I remind members that there was general support for this clause. However, some respondents wanted the age restriction raised to 18, and some had concerns about enforcement. Youth groups were also concerned about the impact of the regulation on children. Do you wish comment on that?

1225. Ms Bleeks: I will just reiterate what is stated in the analysis table, which is that there has been some debate about whether 18 or 16 is the more appropriate age. Having looked at the issue, the Department feels that 16 is the more appropriate age. People of that age may be homeowners or vehicle owners, and they may have a legitimate need to buy those aerosol paints, so they should not be excluded from doing so.

1226. I know that the children’s organisations had some issues, and they said that we were making an assumption that children under 16 were the main perpetrators of graffiti. Although we do not have any local evidence that we are able to draw on, evidence from elsewhere certainly suggests that the vast majority of graffiti is actually done by young males aged between 11 and 16. Therefore, we think that the ban on under-16s is appropriate.

1227. Mr T Clarke: My views on the issue are probably more in line with NILGA’s. I think that 18 is an appropriate age. Young people are still juvenile at 16. We want to remove the temptation, so I believe it would be better if those aged 18 and under were banned from buying aerosols.

1228. Ms Bleeks: We thought that that would be unduly restrictive. People can legally own a home or a vehicle at 17, yet they would not be able to buy aerosol paint for a legitimate purpose.

1229. Mr T Clarke: If you took a sample of the number of people who are homeowners at 17, you would find that it is very small. That is a weak argument for not banning under-18s from buying aerosol paint. Most people do not fly the nest until long after they are 18, 20 or whatever.

1230. The Chairperson: Some fly it earlier. If someone needed to fix their car, they would not be able to buy an aerosol to spray it. However, I understand where Mr Clarke is coming from. Are there any other comments on that?

1231. Mr W Clarke: I agree with Trevor. I think that the age should be 18. That is a first: Trevor and I agreeing on something. You said that there are no local data, but you drew on a reference to a report that the London Assembly produced. Across the water, the age is 18. That seems like a bit of contradiction.

1232. Ms Bleeks: Across the water in England and Wales, the legal age to buy aerosol spray paints is 16.

1233. Mr W Clarke: What about in Scotland?

1234. Ms Bleeks: I do not know.

1235. The Chairperson: It does not matter what is done elsewhere. We need to find out what we want to do here.

1236. Mr W Clarke: There are no local data, so we are drawing on evidence from across the water. I am sorry; I thought that the age was 18. You are targeting 16 and 17-year-olds by saying that they are causing the graffiti, so we are going to ban them from having aerosols.

1237. The Chairperson: We do not have enough members present to make a decision. We could, however, consider proposing an amendment to that clause at some point.

1238. Mr T Clarke: We would not necessarily need an amendment if we could get the Department to agree to change the clause. I just know by looking at the officials today that the Department would be flexible.

1239. The Chairperson: That is very considerate of you, Mr Clarke. I do not know whether that is the impression I get. Do you want to comment on that?

1240. Mr McMahon: We will happily look at it. From a pragmatic point of view, I certainly hear what members are saying. As a parent of a 17-year-old, I could probably go either way on the argument. However, our view is that it might seem odd if people who are old enough to have a driving licence cannot buy an aerosol can.

1241. Mr T Clarke: They might be old enough to drive, but they still cannot get into some nightclubs until they are 21.

1242. Mr McMahon: I accept the point. There is a range of age restrictions, and we understand that. We are happy to have a look at that and to come back with recommendations.

1243. The Chairperson: You need to consider prospective young artists and everyone else.

1244. Mr McMahon: That is a really good point.

1245. The Chairperson: Can you come back to us with more data on that?

1246. Mr McMahon: Yes.

1247. Mr W Clarke: If a person attends a technical college or a school, there may be a licence for them to obtain as part of their coursework or something. That is a safeguard.

1248. Mr McMahon: We could have a look at what mechanisms might work. Speaking off the top of my head, I could not say whether a licence would work, but there must be some way of —

1249. Mr T Clarke: The offence is to sell, not to possess.

1250. Ms Bleeks: That is right. There is nothing to stop an adult buying —

1251. Mr T Clarke: A college could give an aerosol to a 15, 14 or 13-year-old for whatever activity they are doing, but we are trying to prevent retailers from selling the paint. The chances are that someone who is under the age of 18, which is what I would like to see, will use it lawfully because they have been given it for a purpose, instead of having been sold it for misuse.

1252. Ms Bleeks: That is right. There is absolutely nothing to prevent an adult from purchasing aerosol paint and giving it to —

1253. The Chairperson: There are no more budding Banksys — is that his name? — or graffiti artists out there any more. We are doing away with all that. Thank you for that explanation.

1254. Clause 37 deals with the unlawful display of advertisements. Some concerns were raised about this issue, including the comparison with approaches that are taken in England, a lack of enforcement by Planning Service and prosecution powers for councils. I mentioned the issue of enforcement. There is no doubt that it is a big problem.

1255. Ms Bleeks: We agree that enforcement is a big problem. As I said, councils are keen to be able to tackle it. That is why the Department wants to bring forward legislation that will give councils the power to take prosecutions. Unfortunately, that is not currently happening, but our intention is that councils will have those powers and will be able to take prosecutions for fly-posting.

1256. The Chairperson: Regardless of whether somebody agrees with the advertising, we are bringing in laws for people to adhere to, and then other people —

1257. Mr T Clarke: That is not so much to do with fly-posting.

1258. The Chairperson: I know. All that I am saying is that we raised the issue of people getting away with advertising. I want to be clear that everybody is on a level playing field. You are right: enforcement is definitely an issue, but the point is about how we nail that down in legislation.

1259. Ms Bleeks: Are we talking about wider advertising as opposed to fly-posting?

1260. The Chairperson: It was raised about this clause in particular. I am only raising it. If I adhered to the law, but somebody else was advertising, no matter what way they were advertising, it could still be illegal. Therefore, it is something that we certainly need to look at.

1261. Ms Bleeks: We are looking specifically at fly-posting and trying to disentangle it from wider types of advertising. There are a couple of reasons why we are not looking at the wider types of advertising, but the main one is that, very often, advertising other than fly-posting is linked to planning permission. It would not be workable to give councils enforcement powers on wider advertising without their having the responsibility for the control of advertising and of planning permission. The intention is that councils will eventually get the full remit of the control of advertising.

1262. The Chairperson: When Trevor Clarke deals with the 248 clauses of the Planning Bill when we are all off at Christmas, perhaps planning will be moved to councils —

1263. Mr W Clarke: Perhaps that should not have been brought up.

1264. The Chairperson: Councils would then have the power to deal with that.

1265. Mr T Clarke: I think that we need to put down a marker. We can blame councils as well, but the Planning Service has the power at the moment and has not used it. It is OK to say that things will be fixed when planning powers go to councils, but we cannot ignore the fact that the Planning Service has not used its power.

1266. The Chairperson: That is the issue that was specifically raised. I am only asking for clarification.

1267. Mr T Clarke: The Department and the Planning Service need to have a conversation about how they could tighten up the existing legislation, because it needs to be tweaked. What we are really talking about is the unlawful display of advertisements. I imagine that that refers to temporary posters, or what we would deem illegal billboards.

1268. The Chairperson: That is the point with this matter.

1269. Mr McMahon: We certainly agree that there is an issue to be looked at. Our concern was that, if we tangle this provision with planning legislation, it would not necessarily meet any of the objectives. We did not think that it could be resolved through the Bill.

1270. Mr T Clarke: Perhaps you could communicate our concern that the Planning Service could do more about that, because it is not playing its full part.

1271. The Chairperson: We can make that a recommendation. We need to learn from the best practice of the approaches that are taken elsewhere. I am sure that you are looking at how it is being done elsewhere.

1272. I remind members that a series of general issues about graffiti was raised. I will go through the points, and, if you wish to respond, please do so. The issues are: failure of fixed penalty fines to recover costs; the age of criminal responsibility, which we have dealt with; guidance to councils, which is key to it all; and children’s access to the appeals process. Those were the further comments that were made. Would anybody like to comment on any of those specific issues?

1273. Ms Bleeks: As far as the fixed penalty notices and the income that they will generate are concerned, we made the point about similar clauses that we are not imposing a duty on councils to act. Councils will have to take decisions as to whether it is appropriate for them to act in the circumstances. We would imagine that they will do so only where there is a net benefit in the local context in their doing that. The only appeals process that is referred to in Part 4 relates to defacement removal notices. Those would never be issued to children, so the appeals process is not really relevant.

1274. The Chairperson: Would you like to comment on the age of criminal responsibility?

1275. Ms Bleeks: That is not really a matter for the DOE; it is a matter for the Department of Justice.

1276. The Chairperson: OK; obviously we want you to liaise about the issue that we discussed earlier. Thank you very much.

1277. That concludes our discussion on Part 4 of the Bill, so we will now move to Part 5, which relates to dogs. Clause 38 provides the power to make dog control orders. Most respondents welcome the introduction of powers for councils to make such orders. However, there were concerns about the maximum number of dogs that can be walked by one person; the power for a council to draw up what is termed “fouling of land by dogs" for the entire council area; regulations in conjunction with dog control orders; and the proposed level of fines. Those were the four issues that were raised. Would you like to comment on them?

1278. Ms Bleeks: The Department is seeking to streamline the system to enable councils to deal more effectively with environment-related dog issues. We have a very cumbersome by-law system, and a lot of the councils have complained about it being difficult to use. We are trying to streamline the system and bring the dog fouling offence from the Litter (Northern Ireland) Order 1994 under the same regime, so that all environment-related dog control legislation is contained in the one place. The other point was about councils making a fouling-of-land-by-dogs order. That could be a one-off exercise. Councils could do that and deem that it covers their entire areas. The Department still sees that as being less cumbersome than the existing system.

1279. One person walking a maximum number of dogs on leads has been highlighted as a problem, and I know that the Kennel Club had some reservations about that practice. We are trying to get councils to take a balanced approach and take into account the needs of dog owners as well as the needs of those people who use the same land, by making sure that dogs are adequately controlled for the benefit of other users of the land, particularly children.

1280. We are trying to control situations whereby someone would go out with several dogs on leads and be unable to control them because there were too many of them. The Bill will allow councils to make a dog control order to restrict, if necessary, the number of dogs that can be taken out by one person.

1281. The Chairperson: Is there a maximum number? I know that the Kennel Club brought this issue to us. What would be a maximum number?

1282. Ms Bleeks: There is no maximum number set in the Bill. That would be a matter for a council to determine in individual circumstances.

1283. Mr T Clarke: That would leave scope. I think that a council would have to question why somebody would need to walk a whole lot of dogs on leads, but in the case of beaglers, or whatever they are called, and other such dog-walkers, a council would have the discretion to grant permission. Is that what you are saying?

1284. Ms Bleeks: Yes.

1285. Mr T Clarke: That seems fair.

1286. Mr W Clarke: Just to clarify: the flexibility would apply to professional dog-walkers, such as those who walk greyhounds and could walk four at a time.

1287. Ms Bleeks: There could still be a restriction, even for professional dog-walkers.

1288. Mr W Clarke: There would be a restriction?

1289. Mr McMahon: There could be a restriction, but whether it was applied would be on a case-by-case basis. There would have to be a judgement.

1290. Mr W Clarke: That is people’s livelihoods.

1291. Mr McMahon: Absolutely.

1292. Mr W Clarke: I know a number of people who walk greyhounds. That is their occupation.

1293. Mr McMahon: The Bill refers to grooming and dog-walking businesses as well. I take your point, but the judgement allows councils the power of —

1294. Ms Bleeks: It will be for the council to determine.

1295. The Chairperson: Do you want to comment on the proposed level of fines?

1296. Ms Bleeks: We are proposing a level 3 fine for the breach of a dog control order. We took the same offence in England and Wales as our starting point, and we put that out to consultation. Generally, it has been accepted as being appropriate, and the Department feels that it is proportionate to the severity of the offence.

1297. The Chairperson: OK, gentlemen. I am content with that explanation. Are there any more questions? No. OK.

1298. Clause 39 is supplementary to dog control orders. Concerns raised on this clause included the applicability of dog control orders and the risk of confusion with existing legislation. Would anyone like to comment on that?

1299. Ms Bleeks: As far as applicability is concerned, and to go back to what was said previously, the main concern was in relation to dog fouling. We are saying that district councils will be able to draw up a fouling-of-land-by-dog order that could apply to its entire district, if that is what it decides to do. There was also some concern that places such as private sports grounds would be excluded under the terms of the legislation. We have taken legal advice on that and they would not be excluded. So basically, if a council draws up a fouling-of-land-by-dogs order for its entire district, private sports grounds would be included.

1300. The Chairperson: And, just to risk confusion with existing legislation; does this complement what is there already, just to give more powers?

1301. Ms Bleeks: We already have the dog-fouling offence in the Litter (Northern Ireland) Order 1994 and we have the dog by-law system, which as I said earlier can be very cumbersome. So, we are putting those together. They would essentially be replaced.

1302. The Chairperson: That is great: a change to the by-laws. OK; gentlemen, are there any questions? No.

1303. Clause 40 is about lands to which this part applies. I remind members that the Kennel Club and Countryside Alliance were opposed to the use of dog exclusion orders except where absolutely necessary. They also suggested amendments to require councils to specify the land to which dog exclusion orders shall apply; consult on proposed exclusion orders to a variety of relevant channels; introduce a right to appeal following consultation; and provide details of dog exclusion orders to allow the Department to record and monitor them.

1304. On the other hand, councils want reassurance that the Department would not unduly restrict the options available to them by prescribing exceptions. There is a right wee bit on that section; would the witnesses like to comment?

1305. Ms Bleeks: The vast majority of issues raised are not directly relevant to what is in the Bill. They get down to a finer level of detail that will be dealt with in the subordinate legislation and the guidance that we will consult on. We made that point during our discussions with the Kennel Club, and it was happy as long as we assured it that it will be included in that consultation process.

1306. The Chairperson: OK. So you reassured the Kennel Club and it is happy as long as it is consulted. It is for the Committee to decide whether the Kennel Club needs to come back to look at amendments, but as long as you keep it informed that should be fine. Are members content with clause 40?

Members indicated assent.

1307. The Chairperson: Clause 41 deals with fixed penalty notices for the contravention of dog control orders. I remind Committee members that councils welcomed the option for officers to authorise fixed penalties and recognised the potential for off-setting costs. No concerns were raised about that clause. Are members content with clause 41?

Members indicated assent.

1308. The Chairperson: Clause 42 deals with the amount of fixed penalties. I remind members that the discretion for councils to set a fixed penalty of up to £75 was generally welcomed, but councils were concerned that it may require replacement signage, which would be at a cost to councils. Councils were also concerned that under Magistrate’s Court rules in the North, charges are limited to £75 and any costs in excess of that would have to be borne by councils. In addition, the Examiner of Statutory Rules suggested that the power in clause 42(6) for councils to substitute a different amount for that in 42(1)(b) should be subject to a higher level or scrutiny such as draft affirmative procedure, and members and officials will certainly remember that term. Would officials like to comment on any of that?

1309. Mr McMahon: There is a concern among councils about the Bill as a whole and the potential for costs, and the concerns raised are part of that. We have argued that the Bill is cost-neutral overall. Perhaps Hazel would like to say something specifically about the £75 limit.

1310. Ms Bleeks: It will be up to the councils whether they want to increase the current fixed penalty. They can keep it at £50 if they want, but if they choose to raise it to £75 they will get more income, which will offset the cost of replacing signs.

1311. Mr McMahon: They will need to do a business case.

1312. The Chairperson: OK. Are members content with clause 43 and the possible need to use draft affirmative resolution?

Members indicated assent.

1313. The Chairperson: Clause 43 deals with the power to require name and address. No comments were made about clause 43. Are members content with clause 43?

Members indicated assent.

1314. The Chairperson: Clause 44 deals with by-laws. I remind members that councils were concerned about the removal of by-laws to make dog control orders, and that they urged the Department to enable councils to retain that flexibility. I think that the officials responded to this earlier, but can they provide some clarification on that?

1315. Ms Bleeks: To be honest, I was quite surprised that councils wanted to retain by-laws.

1316. The Chairperson: So was I.

1317. Ms Bleeks: The overwhelming response that we got from councils is that they find by-laws cumbersome, and we know from our experience that that is the case. By-laws that are in force will remain so. They will not be repealed automatically and will continue to operate until such times as the councils choose to make the new dog control orders.

1318. The Chairperson: I suggest that they do that fairly quickly. Are members content with clause 44?

Members indicated assent.

1319. The Chairperson: Before we finish with Part 5 of the Bill there are two other general comments that I need to make; including the need for officers working on dog-related issues to be adequately trained, and the integration and amalgamation of all dog-related legislation. Do you wish to comment on those issues?

1320. Ms Bleeks: Authorised officers will need to be trained, but that is a matter for councils to consider. We have been liaising with DARD on dog-related legislation. It deals with two distinct areas of dog control. Although we deal with environmental issues, DARD is concerned with the control of dangerous dogs, the promotion and support of responsible dog ownership and changes to the licensing system. We do not necessarily feel that it is desirable for those functions to sit in one piece of legislation, but we acknowledge that the two regimes need to work together. We have been working with DARD to make sure that there is no overlap and that councils understand where the legislation applies.

1321. The Chairperson: OK. We are moving on rightly, so bear with us. We will move on to Part 6, which deals with noise. Clause 45 deals with the designation of alarm notification areas. I remind members that although the clause was generally welcomed, several issues were raised, such as the inclusion of all alarm types, the difficulties of getting named keyholders for shared housing, flats and houses of multiple occupancy, the differentiation between intruder and smoke alarms, the impact of the direction on permitted levels under the Noise Act 1996 and the extension of that Act to include licensed premises. Where would you like to start?

1322. Mr Jackie Lambe (Department of the Environment): I will begin with the first point about the differentiation between audible intruder alarms and other types of alarms. The councils already have powers under the Pollution Control and Local Government (Northern Ireland) Order 1978 to take action against all types of alarms. The new provision is targeted specifically at audible intruder alarms in particular areas where there have been proven problems in the past. It is targeted specifically at audible intruder alarms because those alarms generally tend to cause the most annoyance.

1323. There were comments about extending the provision to all types of alarms. The Department’s view on that is that extending the provision in that way would automatically include household smoke alarms or carbon monoxide alarms and would place a duty on virtually every householder who has a smoke alarm fitted in a designated area to have to register with the council and provide his or her name and address. That would be completely unworkable.

1324. There were comments on the extension of the Noise Act 1996 to include licensed premises. In many people’s minds, the phrase “licensed premises" is a rather restrictive description. What was envisaged was an extension of the 1996 Act to include all places that are subject to an entertainments or liquor licence. That includes social clubs, restaurants that sell hot food take-outs and are open until late at night and a wide range of premises that would tend to be open late at night and which have the potential to cause noise that will affect nearby residents. The provision extends the existing 1996 Act provisions to that broader range of premises so that councils can take action, not just against noisy dwellings, which is currently the case, but a wider range of noisy premises.

1325. The Chairperson: OK. Do members wish to make any comments? I think that we have covered most of the points raised.

1326. Clause 46 concerns withdrawal of designation. I remind members that main concerns about this clause were the consultation and administrative processes. I invite the Department to comment on that.

1327. Mr Lambe: This relates to clause 45 and clause 46. A number of concerns were expressed by councils that the whole designation process might be overly cumbersome. The Department has taken advice on that, and will include it in the guidance it issues to councils, to clarify that the inclusion of a flyer in the likes of a council news-sheet, or council magazine, that issues regularly throughout the year, of a proposed designation area is sufficient to cover the notification and withdrawal process. It is not necessary for councils to notify every individual householder, because such magazines are issued to all premises in council areas.

1328. The Chairperson: Do members have any comments to make? Are members happy enough?

Members indicated assent.

1329. The Chairperson: Clause 47 is about the notification of nominated key-holders. Here, the main concern was the nomination of key-holders. Jackie, would you like to comment?

1330. Mr Lambe: I want to clarify that, in relation to notification of nominated key-holders, the onus is not on the council to go out seeking nominations from individual businesses or premises owners. If an alarm is sounding and a council is called out to deal with it, if the owner or occupier of that property has not registered with the council and provided the name and address of a nominated key holder, that person is guilty of an offence and can be dealt with in that way. There is no onus on the council to go out with an over-the-top administrative process and seek nominations from individual properties in a designated area.

1331. The Chairperson: Clause 48 is about nomination of key-holders. No issue was raised in respect of clause 48. Clause 49 relates to offences under section 47 and fixed penalty notices. Again this is the issue of the key-holders. Has the Department any comment to make?

1332. Mr Lambe: I wish to make it clear that, in the guidance that the Department proposes to issue, it will include an option for owners of properties to provide more than one. The statutory requirement is for one, but there is nothing to prevent owners from providing additional names and addresses of key-holders, as is the case currently with the voluntary code that operates with councils.

1333. The Chairperson: Are members happy enough with that? We will move on.

1334. The Chairperson: Clause 50 is about the amount of fixed penalty.

1335. I remind members that although the discretion of councils to set their own fixed penalties was welcome, there were concerns about the administrative burden, the level of the default penalty which is £75 and flexibility in councils for different penalty levels.

1336. I remind the Department to comment on key or additional issues and confirm that it will provide an amendment of clause 50 during the Committee Stage.

1337. Mr Lambe: This is the same issue that has come up across a number of areas. Councils will have discretion to set the size of the fixed penalty locally, within a range prescribed in the regulations. Where they do not decide to set a penalty, a default penalty of £75 applies. The Department has accepted the point about the draft affirmative resolution.

1338. The Chairperson: We will move on to clauses 51 and 52, which deal with the use of fixed-penalty receipts and the power to require a name and address with regard to fixed-penalty notices. No issues were raised in respect of those clauses.

1339. Clause 53 deals with the power of entry. I remind members that stakeholders sought clarity on the need for a warrant to enter property boundaries and premises and on extending the types of alarm to which the Bill applies.

1340. Mr Lambe: The Department has sought legal advice and agrees that a warrant is not required to enter a property boundary to silence an alarm. So, if an alarm is mounted on the exterior of a building and silencing it requires a council official to enter the courtyard or the garden, a warrant is not required.

1341. Mr T Clarke: I appreciate what you are saying, but what happens in cases where a council silences the alarm and there is damage to it? Theoretically, you cannot silence an external bell box without damaging it.

1342. Mr McMahon: We might need to look into that issue to see what the liability would be and how that would work.

1343. Mr T Clarke: As long as we do not leave councils unsure.

1344. Mr McMahon: That is a fair point.

1345. Mr Lambe: That is dealt with in clause 55(9) through an indemnity for council officials for anything done by them in good faith while exercising their duty.

1346. Mr T Clarke: That is fine. Has that been tested?

1347. Mr Lambe: It is no different from the current position with councils.

1348. Mr T Clarke: Councils do not silence alarms at present, generally speaking.

1349. Mr Lambe: From Belfast, my understanding is that it is a fairly regular occurrence.

1350. Mr T Clarke: I should have declared an interest as a member of Antrim Borough Council. We have heard of nuisance alarms, but I have never known our council to silence alarms, but maybe it is not very active on the issue.

1351. Mr McMahon: We are happy to look into that and satisfy the Committee. We will seek to confirm that it is being used elsewhere.

1352. The Chairperson: Clause 54 is entitled, “Warrant to enter premises by force". We are seeking clarity on how that would operate in practice.

1353. Mr Lambe: The Department acknowledges that there will, on occasion, be difficulties in getting a warrant, particularly late at night or outside normal hours. However, those problems are no different to the problems faced by councils under the existing powers in obtaining a warrant to enter premises by force. So, there is nothing new in this clause; it is simply a replication of an existing power for the new proposal.

1354. The Chairperson: No issues were raised in respect of clauses 55, 56 and 57. Clause 58 is entitled, “Noise offences: fixed penalty notices". I remind members that councils were concerned about resources in relation to this clause, including the level of the default fine at £100. I ask the departmental officials to comment on the key issues and confirm its contentment with the amendment.

1355. Mr Lambe: As previously stated, the Department is content with the amendment.

1356. The £100 fixed-penalty notice is the same as it is under the Noise Act 1996. To date, only Belfast City Council has resolved to apply the Noise Act to its area. As far as I know, Belfast City Council is the only council in Northern Ireland that applies the Noise Act. The fixed penalty notice will be no different from the current position. However, there will be a range of fixed penalty notices, and if a council decides that it wants to impose a slightly higher fixed penalty, it will have the discretion to do so.

1357. Mr Weir: You say that the level of fixed penalty notice fines will be the same as they are currently. Is perhaps one reason why councils outside Belfast do not apply the Noise Act because they would have to go through all the hassle and the most that the person will be fined will be a public fine anyway? It is a wee bit of a chicken-and-egg situation.

1358. Mr Lambe: Possibly one reason why other councils have decided not to use that power is because when a council decides to adopt the Noise Act, it is under a statutory duty to provide an out-of-hours noise service. Only Belfast City Council has decided that it wanted to do that, and it provides a night-time noise service that runs through until about 4.00 am. It can, potentially, be expensive for councils to do that. From experience, that provision has the greatest effect in urban areas. To date, only Belfast City Council has adopted the Noise Act.

1359. The Chairperson: Are members content with that explanation?

1360. Members indicated assent.

1361. The Chairperson: Clause 59 is entitled, “Extension of Noise Act 1996 to licensed premises etc." Although members generally welcomed the clause, the following concerns were raised: the technical requirements for indoor entertainment licensing; a review, and incorporation into the Bill, of closing orders; and the need for a regular review of the £500 fixed penalty. The Committee for Social Development asked for an opportunity to comment on the clause, but, on reflection, decided to make no comment. [Laughter.] If I had seen the end of that sentence, I would not have started it. Does the Department want to comment on those three issues?

1362. Mr Lambe: In extending the Noise Act to licensed premises, the fixed penalty has been increased to £500 to reflect the more serious impact that noisy premises can have on adjacent residents.

1363. The clause is essentially the extension to commercial-type premises of the provisions that apply to domestic dwellings, but with a higher fine to reflect the more serious impact that those premises can have on local communities.

1364. The Chairperson: Is regular review an option?

1365. Mr Lambe: The Department intends regularly to review the level of all fixed penalties in the Bill.

1366. The Chairperson: Thank you. Perhaps you would like to comment on a few general issues: phased implementation; guidance to councils, which we talked about; informal action; and resources.

1367. Mr Lambe: With regard to phased implementation, councils generally asked the Department to ensure that there will be a sufficient lead-in period to allow for adequate training in all the Bill’s new provisions. Therefore, the Department proposes to consult with councils on the guidance, and on the new statutory subordinate legislation that will need to come into effect to give the Bill the teeth that it needs to be operational. Most councils have asked for a minimum lead-in period of three months, and we see no difficulty with that.

1368. The Department accepts that, if many councils decide to operate the new provision, there will be an additional resource commitment. Currently, 25 out of the 26 councils simply do not bother exercising the night noise provisions in the Noise Act. If they decide that they wish to operate that, there will be an additional cost to them. That is no different to a decision taken by a council to operate the existing Noise Act, so, again, the decision on whether they wish to take on board that additional duty rests with the council.

1369. The Chairperson: There are only eight clauses and the schedules left, so we will try to get through those. We move to Part 7, which is on statutory nuisance. Clause 60 was generally welcomed, but some concerns were raised. A response spoke of the need for a catch-all clause, and a concern was raised about the applicability of a best practicable means defence to smoke nuisance. The need for greater scope for councils and for the extension of the Bill’s powers to cover pigeons was raised. Concern was raised about the exclusion of agricultural land from the meaning of: “relevant industrial, trade or business premises".

1370. There is food for thought in those responses.

1371. Mr Lambe: By way of context, the new statutory nuisance provisions consolidate existing statutory nuisance law, most of which dates back to the old Public Health (Ireland) Act 1878. That Act has been amended and tweaked over the years. Many of the statutory nuisance provisions in this Bill are simply a consolidation of that existing statutory nuisance law. There are one or two new areas, such as the statutory nuisance of artificial lighting and statutory nuisance in relation to insects. A few tweaks of the wording are required to bring us more into line with the position that exists in England and Wales.

1372. As I said, statutory nuisance legislation has evolved over the past 130-odd years. To date, the Department has had no requests from environmental health practitioners for a catch-all provision, and we have no evidence for any need for that. We are not aware of any deficiencies in the existing statutory nuisance regime that call for a catch-all provision.

1373. The comment on the best practicable means defence to smoke nuisance was about the statutory nuisance of smoke emitted from premises and the statutory nuisance of fumes and gases emitted from premises. One of the provisions in the Bill is a specific exemption of the provision relating to fumes and gases from premises so that it applies only to dwellings, not to commercial, industrial or other premises. The best practicable means defence is available only in relation to commercial and business premises. It is not generally available to domestic premises. There is a different starting point in relation to those two statutory nuisance provisions.

1374. Pigeons is a trickier issue. There have been calls from district councils for additional powers to deal with pigeons. The Department has looked very closely at the matter and concluded that existing statutory nuisance powers are consolidated in the new clause 60(1)(a), which would apply to:

“any premises in such a state as to be prejudicial to health",

1375. or in clause 60(1)(e):

“any accumulation or deposit which is prejudicial to health".

1376. Both would enable councils to deal with pigeon droppings and so on. Councils also have powers under their existing good law and government —

1377. Mr Weir: In light of the existence of such provisions, a change in the law may not be necessary. Is it just a question of the Department sending out some sort of memo? Sometimes, interpretation of regulations can be narrow and it would be helpful to point out a possible wider interpretation.

1378. Mr Lambe: Yes, the Department is happy to do that.

1379. The Chairperson: The Committee will make a recommendation on the importance of doing that.

1380. Mr T Clarke: There is a lot in clause 60. Is noise anywhere in there?

1381. Mr Lambe: There are two categories of noise. Noise emitted from premises is provided for in clause 60(1)(i). Separately, clause 60(1)(j) relates to: “noise that is prejudicial to health...and is emitted from or caused by a vehicle, machinery or equipment in a street".

1382. That tweaks existing noise provisions to separate them into two separate categories.

1383. Mr T Clarke: At the risk of being parochial, noise from motorsport facilities has been a problem in my area. Will that clause be a useful tool for the council?

1384. Mr McMahon: Are you talking about jet skis?

1385. Ms H Anderson: No, it is motocross.

1386. Mr T Clarke: Ones without planning permission. Noise travels into the streets from scrambling tracks —

1387. Mr W Clarke: That is an issue for planning enforcement.

1388. Mr T Clarke: No, there is a noise pollution issue. It is a nuisance.

1389. Ms H Anderson: That may still be caught under the Control of Pollution Act? I think that the legal definition of “street" implies that it is a street as a Roads Service, DRD responsibility.

1390. Mr T Clarke: Yes, but would the Bill not present an opportunity to capture that as well? At the end of the day, it is a nuisance.

1391. Ms H Anderson: I appreciate that, but I am not sure that clause 60(1)(j) will capture it. Perhaps we should check.

1392. Mr Lambe: May we check and come back to the Committee on that matter?

1393. The Chairperson: Please come back, if necessary with an amendment to the clause.

1394. Mr T Clarke: I also want to ask about clause 60(1)(l), which deals with watercourses. That intrigues me.

1395. Mr Lambe: That specific provision exists as a statutory nuisance provision in the Public Health (Ireland) Act 1878. Councils asked us to retain that provision in the new statutory nuisance regime. Their primary concern was that councils should be allowed to take action in respect of watercourses, the normal drainage of which had been interfered with by man so that the normal flow had been stopped or adjusted.

1396. Mr T Clarke: The relevant paragraph states “choked or silted up", which is natural in bogland watercourses.

1397. Ms H Anderson: Much of the old public health legislation dating back to the 1800s related to stagnant water. If that is the case, I assume that one of the issues that might be caught relates to silting occurring to the extent that water ceases to move, becomes stagnant and potentially creates associated problems with insects or odours. However, we will check the detail on that.

1398. Mr T Clarke: Does that give the council the power to make the landowner clear that?

1399. Ms H Anderson: They would have had that provision already under the old Public Health (Ireland) Act. It is only where it is prejudicial to health or a nuisance; that is the crucial bit. It is not just where it occurs; it is where it occurs to the extent that a statutory nuisance is created.

1400. Mr Lambe: To clarify, there is specific case law that states that, if the water becomes choked or silted as a result of natural activity, the statutory nuisance provision does not apply. It is only where it applies in relation to a man-made activity.

1401. Mr T Clarke: That is not what is says there.

1402. Mr McMahon: I think that it is the definition of the term “choked". It would not be referring just to a natural occurrence.

1403. Mr T Clarke: It states: “which is so choked or silted up as to obstruct".

1404. That is natural in some types of watercourse anyway.

1405. The Chairperson: That is a valid point.

1406. Mr Lambe: I will look again at that, and come back to the Committee.

1407. Mr T Clarke: I am pleased that it can be there and that it can be used as a tool, but I am just curious. In looking at the opposite side of that, watercourses rise. That normally happens on peatlands, and the natural occurrence is that it is going to choke and silt up. We are putting an onus on someone to clean out something that is going through its natural environmental process.

1408. Mr McMahon: I think what you are saying, Jackie, is that the case law would not —

1409. Mr T Clarke: If that is the proposal, I would welcome that, but I think it will be an interesting one.

1410. Mr McMahon: We will come back on that.

1411. Mr T Clarke: Can I ask your colleagues in the Environment Agency what their view is on that?

1412. The Chairperson: Finally on that clause, there is reference to the exclusion of agricultural land.

1413. Mr Lambe: The Department intends to clarify the definition of “agricultural land" specifically in the guidance.

1414. The Chairperson: OK. Thank you.

1415. Clause 61 concerns the duty of district councils to inspect for statutory nuisance. One issue was the inclusion of pigeons, but you have dealt with that.

1416. Mr T Clarke: Sorry, I missed that.

1417. The Chairperson: There is already legislation on that.

1418. Mr T Clarke: That is weak as well.

1419. The Chairperson: You mentioned clause 61(a)?

1420. Mr Lambe: Councils currently have powers under the statutory nuisance regime to deal with premises in such a state as to prejudice health or a nuisance, or accumulations, which can be anywhere, or deposits that are prejudicial to health. Councils also have the power to make by-laws under the good rule in government legislation to control pigeons. Final provision is made in article 71 of the Pollution Control Order that allows councils to take any steps for the purpose of abating or mitigating any nuisance, annoyance or damage caused by the congregation in any built-up area of feral pigeons. The Department’s view was that there is a range of powers already available to councils to deal with pigeons, and there was not in our view a need for a specific statutory nuisance provision.

1421. Mr McMahon: One important point to add to that is that, obviously, as part of producing the guidance, we would want to, where relevant, draw attention to existing powers to make sure that they are used. I think that that is the point.

1422. The Chairperson: I accept the explanation, but what I am saying is that a lot of people have made a response on that, so it must not be working properly.

1423. Mr McMahon: Yes, I think that is fair.

1424. The Chairperson: Are we saying there is enough in legislation at the minute, or do we need to shore it up?

1425. Mr McMahon: The Department’s view is that the powers are there, but clearly people are not applying them or may not be aware of them, and we need to make sure that that is built into the guidance so that people are fully aware of the powers at their disposal.

1426. Mr T Clarke: Are the powers — [Inaudible due to mobile phone interference.]

1427. The Chairperson: If the existing powers are properly applied, it is fine.

1428. Mr McMahon: If the power was not there and we were building it in, I suppose —

1429. Mr Lambe: There are, as I said, two existing statutory nuisance provisions dealing with deposits and accumulations and dealing with premises and such estates. The other two powers relate to a by-law-making power for councils.

1430. Mr T Clarke: No disrespect to Jackie, but most of us think that by-laws are weak. If there is another mechanism, why was it not included in the Bill?

1431. The Chairperson: That is a valid point, and it is one that NILGA raised. However, as bodies, councils should know what is applied in councils. We discussed by-laws earlier.

1432. Mr McMahon: When I heard by-laws again, I must say that I —

1433. The Chairperson: Yes; let’s not go there. If there is an opportunity to implement something in the Bill and incorporate it, we should do so.

1434. Mr McMahon: We are happy to look at it.

1435. The Chairperson: Thank you.

1436. Clause 62 deals with summary proceedings for statutory nuisances. The following concerns were raised about clause 62: the issue of abatement notices in relation to appeals; the exclusion of the power for a court to make an order on conviction requiring the nuisance to be abated; the definition of an “owner"; and the introduction of daily fines. Jackie, would you like to comment on those points?

1437. Mr Lambe: The Bill already makes provision for the introduction of daily fines under clause 62(10). There is another provision in clause 62 under which a council, if it is of the opinion that the fine that is likely to be imposed by a court is not sufficient to deal with the offence, may take proceedings in the High Court, where there is no limit to the amount of fine that can be imposed. Therefore, the Department feels that there is sufficient provision to deal with most circumstances.

1438. From knowledge, only two of the councils expressed a preference for the old system to remain in place, while the rest of the 26 councils welcomed the new streamlined procedure of issuing an abatement notice and launching court proceedings if a person fails to comply with that. That is regarded as a much speedier process, and it will enable councils to deal with particular problems that arise at an earlier opportunity.

1439. A comment was made on the need for regulations to be introduced for appeals. The Department will consult on the appropriate regulations before the appeal provision is brought into operation.

1440. As the Committee will be aware from previous meetings, the Department’s remit in the Bill was to bring Northern Ireland’s statutory nuisance law and other environmental law into line with England and Wales. In that jurisdiction, the statutory nuisance provision is used in a slightly different way than it is used by many of the councils in Northern Ireland. A number of councils have told me that because Northern Ireland’s housing legislation is not up to date with housing legislation elsewhere in the UK, they must resort to using statutory nuisance legislation to deal with many housing defects in privately rented houses. They have a particular problem with absentee landlords and those who live overseas, which is why they called for a broader definition of “owner." The Department is looking at that, and, subject to ministerial approval, would be minded to bring that into being, so that our statutory nuisance legislation is not weakened from its current position. If we moved in line with the rest of the UK in that respect, we would, in effect, weaken those provisions.

1441. The Chairperson: No issues were raised on clause 63, concerning abatement notice in respect of noise in the street.

1442. Clause 64 concerns supplementary provisions. Stakeholders sought more clarity on the interpretation of clause 64 and an indication of the new procedures that will be required to deal with noise in the street.

1443. Mr Lambe: The Department will bring forward detailed guidance on the new provisions that deal with noise in the street. Clause 65 allows councils to recoup expenses that are reasonably incurred in abating the statutory nuisance. A cost recovery mechanism will be introduced as part of the new provisions.

1444. The Chairperson: Are we content with that explanation?

Members indicated assent.

1445. The Chairperson: Clause 65 concerns expenses recoverable from owner to be a charge on premises. Among a range of comments on clause 65, stakeholders sought the extension to the rest of the Bill of the definition of “owner" in this clause. Obviously, you are considering that.

1446. Mr Lambe: Apologies, Chairperson. I jumped the gun slightly in my previous comment. The recovery of costs relates to clause 65, and not clause 64.

1447. The Chairperson: Do members have any questions on that? Are members content?

Members indicated assent.

1448. The Chairperson: No concerns were raised about clause 66 on payment of expenses by instalments. The clause was welcomed by councils and others, and there were no comments on it. Does any member want to ask a question on clause 66? Are members content?

Members indicated assent.

1449. The Chairperson: Clause 67 concerns summary proceedings by persons aggrieved by statutory nuisances, and clause 68 concerns application of Part 7 to the Crown. No comments were made on clauses 67 and 68. Unless members have any comments, I propose that we move on. Are members content?

Members indicated assent.

1450. The Chairperson: A series of general issues were raised about statutory nuisance that cannot be related directly to specific clauses. I would like the Department to respond to two general issues: overcrowding, and legislating for unsightly and unkempt gardens.

1451. Mr Lambe: The issue of a statutory definition of overcrowding has been brought to the attention of the Department for Social Development, which has policy responsibility for housing legislation, including overcrowding. I referred earlier to the fact that Northern Ireland’s housing law lags behind the rest of the UK. The Department for Social Development is aware of the issue. Whether it brings forward legislation is a matter of its departmental priorities.

1452. The Department of the Environment’s view is that unsightly and unkempt gardens will be addressed through the new litter-clearing notice provisions that will be introduced in clause 17. If there are unsightly or untidy gardens, even at derelict premises, a council can issue a litter-clearing notice as security for the clean-up.

1453. The Chairperson: That concludes the informal scrutiny of Part 7. We now have Part 8, miscellaneous and supplementary provisions. Clause 69 concerns use of penalty receipts; clause 70 concerns offences relating to pollution, etc: penalties on conviction; clause 71 concerns offences by bodies corporate; clause 72 concerns regulations and orders; clause 73 concerns interpretation; clause 74 concerns minor and consequential amendments and repeals; clause 75 concerns commencement; and clause 76 is the short title. No issues were raised in respect of those clauses. Are members content to move on?

Members indicated assent.

1454. The Chairperson: We move on to schedules 1 to 4. The only issue that was raised in relation to the schedules was the suggestion that regulations should be made under schedule 2 to prescribe the cases in which an abatement notice is or is not to be suspended.

1455. Mr Lambe: As I said previously, the Department will consult on the draft regulations prior to the coming into operation of Part 7 of the Bill. It is absolutely essential that the appeal mechanisms are in place before councils can operate under the new statutory nuisance procedure. That will all be consulted on well in advance of the provisions coming into operation.

1456. The Chairperson: Thank you very much. That concludes the informal scrutiny of the Clean Neighbourhoods and Environment Bill. When the Committee receives all of the information that it has requested, it will commence formal clause-by-clause scrutiny. There are a few issues on which the Department has to come back to us. Are members content with the explanations that were given throughout the process?

Members indicated assent.

1457. The Chairperson: We now move back to the formal clause-by-clause scrutiny of the High Hedges Bill.

Clause 6 (Appeals against remedial notices and other decisions of councils)

1458. The Chairperson: We received further clarification on this clause. Mr Clarke, are you happy enough with that clarification?

1459. Mr T Clarke: Yes.

1460. Question, That the Committee is content with the clause, put and agreed to.

1461. Clause 6 agreed to.

1462. Clause 7 agreed to.

Clause 8 (Powers of entry)

1463. The Chairperson: The Committee sought clarification from the Department, and we were satisfied with the explanation.

1464. Question, That the Committee is content with the clause, put and agreed to.

1465. Clause 8 agreed to.

Clause 9 (Offences)

1466. The Chairperson: The Committee sought clarification in relation to this clause, and we were content with that clarification.

1467. Question, That the Committee is content with the clause, put and agreed to.

1468. Clause 9 agreed to.

1469. Clause 10 agreed to.

Clause 11 (Action by council)

1470. The Chairperson: The Committee sought some clarification in relation to this clause. I think that we are happy enough with the explanation.

1471. Question, That the Committee is content with the clause, put and agreed to.

1472. Clause 11 agreed to.

1473. Clauses 12 to 14 agreed to.

Clause 15 (Interpretation)

1474. The Chairperson: We expressed some concerns about this clause and sought some clarification from the Department, and we are happy enough with that clarification.

1475. Question, That the Committee is content with the clause, put and agreed to.

1476. Clause 15 agreed to.

1477. Clauses 16 to 20 agreed to.

1478. Long title agreed to.

1479. The Chairperson: That concludes the Committee’s formal clause-by-clause consideration of the High Hedges Bill. A report will be brought back to the Committee in the next couple of weeks. Thank you very much.

16 December 2010

Members present for all or part of the proceedings:

Mr Cathal Boylan (Chairperson)
Mr Patsy McGlone (Deputy Chairperson)
Mr Thomas Buchanan
Mr Trevor Clarke
Mr Willie Clarke
Mr John Dallat
Mr Danny Kinahan
Mr Alastair Ross
Mr Peter Weir
Mr Brian Wilson

Witnesses:

1480. The Chairperson (Mr Boylan): I initially welcome Robert Gray and Helen Anderson from the Department of the Environment (DOE) and Gerry Anketell and Brian O’Neill from the Department for Regional Development (DRD). We will go through Parts 1, 2 and 3 of the Clean Neighbourhoods and Environment Bill, and Committee members will be able to seek clarification on any points on which they require it.

Clause 1 (Gating orders)

1481. The Chairperson: Issued were raised about clause 1. I remind members that, at its meeting of 2 December, the Committee asked whether the Department had received legal advice on clause 1, as there was a feeling that the introduction of the Bill will lead to a situation in which expectations are raised about the installation of gates. The Department’s response stated:

“The Bill does not impose a duty on district councils to make gating orders; rather it gives them the power to do so in respect of a road which is facilitating high and persistent levels of crime and/or anti-social behaviour that adversely affect local residents or businesses."

It continued:

“There is no legal advice in respect of the point raised concerning clause 1 and the Department does not see any need for such advice. It will be a matter for a district council to take a decision as to whether it is appropriate to make a gating order after taking all of the relevant circumstances into account."

1482. I also inform members that NILGA has provided further details on the costs, specification and benchmarking of the alley gates that are in place. That information is provided in members’ packs. Are members content to incorporate those responses into the Committee’s report?

Members indicated assent.

1483. Do any members wish to comment on clause 1?

1484. Mr Dallat: Is the Department sure that there are no section 75 problems with clause 1? Has it checked cases that were taken to the Equality Commission, which recently ordered the payment of fairly substantial sums of money because of obstructions that had been placed in the way of wheelchair users?

1485. Mr Brian O’Neill (Department for Regional Development): I am not aware of cases being taken for obstructing wheelchair users.

1486. Mr Dallat: I know of a case that was taken against Coleraine Borough Council. That case was settled out of court, and the council paid £3,000 for obstructing wheelchair users. I am not certain whether that was as a result of alley gates or kissing gates, but I believe that it was gating.

1487. Mr B O’Neill: The gates that have been approved by Roads Service have primarily been in Belfast, with a few in Craigavon. No issues at all have been raised on your point, Mr Dallat. There have been no complaints about any obstructions to any person in the Belfast area, where all the gates have been put up.

1488. Mr Dallat: Has the Fire and Rescue Service Board had any input into gating? Does it have issues with access for hoses, and so on?

1489. Mr B O’Neill: Local councils consult all the relevant statutory authorities before proposals are brought to us. Therefore, the Fire and Rescue Service Board is consulted by the local council.

1490. Mr Weir: Will the Fire and Rescue Service not have skeleton keys for gates? I would have thought that, in most cases, they are not likely to want to put hoses down back alleyways. However, I presume that the emergency services will have a means of gaining complete access to those places anyway. I do not know the individual circumstances in Coleraine, but I wonder whether it was an alley-gating situation or whether the gates were blocking general access for the public and had a specific impact on the disabled in a more general area than a back alleyway.

1491. Mr Dallat: I mentioned previously that there have been a number of very serious fires at backs of houses in Limavady because some clowns were running around lighting oil tanks. Some families were very lucky to escape with their lives.

1492. Mr Weir: Presumably, if alley gates prevented people getting access to oil tanks, it would stop, or reduce massively, that threat. It could even cut out the problem in a different way.

1493. The Chairperson: Mr Dallat has raised the issue of disabled people. That is fine. That issue should be incorporated into part of the consultation process that has been happening up to now anyway. I am glad that he made the point, because, during discussions, we should be mindful to invite representatives of such bodies.

1494. Mr Gerry Anketell (Department for Regional Development): It is fair to say that all the emergency services will be given provision for access to any gated area.

1495. Mr W Clarke: The Department is telling me that anybody who installs gates will have to carry out an equality impact assessment (EQIA). Is that correct?

1496. Mr Robert Gray (Department of the Environment): It is imperative that, under the proposals, if the local council —

1497. Mr W Clarke: Or the Housing Executive.

1498. Mr Gray: The councils will make the gating orders.

1499. Mr W Clarke: For the Housing Executive.

1500. Mr Gray: They will do so on behalf of the proposer of the gating scheme. The order can be implemented only if the council makes the gating order, and it is imperative that it undertake a thorough section 75 screening.

1501. Mr W Clarke: I wanted that on the record.

1502. The Chairperson: I will put that recommendation at the end of the report under matters raised.

Question, That the Committee is content with the clause, put and agreed to.

Clause 1 agreed to.

1503. The Chairperson: Thank you very much for your input, Gerry and Brian. We now move on to Part 2, and I welcome Jackie Lambe and Hazel Bleeks from DOE.

Clause 2 (Exposing vehicles for sale on a road)

1504. The Chairperson: One question was asked about the clause, and we sought clarity on the proposals that relate to the sale of two or more cars that are parked within 500 m of each other. We were content with the explanation provided by the Department.

Question, That the Committee is content with the clause, put and agreed to.

Clause 2 agreed to.

1505. Mr Dallat: I am not sure whether any other members have noticed, but, recently, perhaps in anticipation of the legislation, people have started to put one car out on the road while leaving the rest of them behind a wall. Presumably, that is OK. However, it still creates a road hazard, because people stop and queue, and so on.

1506. Mr T Clarke: Why can we not just make it that people cannot have any cars for sale out on the road?

1507. The Chairperson: I remind members that I have already put the Question and got agreement on it. We have previously discussed the issue at length. We are certainly not rushing into it.

1508. Mr Weir: We will have to wait for the Christmas episode of ‘Doctor Who’ to go back in time.

Clause 3 (Repairing vehicles on a road)

1509. The Chairperson: Members were concerned about the impact on broken-down vehicles but were content when advised that there was a 72-hour exemption for breakdowns and accidents. Do members have any comments before I put the Question?

1510. Mr Dallat: Have we discussed the 72-hour exemption? That is not flexible, no? Seventy-two hours is three days, which is a fair while for a car or lorry to be sitting on a road.

1511. The Chairperson: We were concerned about broken-down cars being taken away and wanted to give people an opportunity to remove their cars. Are we now saying that we are against an exemption?

1512. Mr Kinahan: It is needed if someone cannot get the parts.

1513. The Chairperson: I think that it is quite reasonable.

1514. Mr Dallat: All right.

1515. Mr W Clarke: There is also the example of a car that is stuck in snow.

1516. The Chairperson: It could be snowed in for two days.

1517. Mr T Clarke: Discretion will be applied if it is snowed in.

Question, That the Committee is content with the clause, put and agreed to.

Clause 3 agreed to.

Clause 4 (Power to give fixed penalty notices)

1518. The Chairperson: I remind members that subsection (9) provides a power for the Department to substitute a new amount of fixed penalty payment specified in the Bill. The Examiner of Statutory Rules suggests that the power should be subject to draft affirmative procedure, in keeping with all the other Bills that are going through the Assembly. The Department has agreed an amendment to allow for the power to be subject to draft affirmative procedure. That is all very well, but we have not seen the amendment. What has happened?

1519. Mr Gray: The point about draft affirmative procedure will apply to numerous clauses. There are powers that relate to the amount of fixed penalty notice throughout the Bill, and we have grouped all those together. I have written to the draftsman to seek the amendments. This would be only one of around eight or nine amendments.

1520. The Chairperson: That is OK. However, I will be putting the Question to the Committee, and we have not seen the amendment. Are you giving us an assurance that we will receive the amendment?

1521. Mr Gray: We have asked the draftsman for it, so I do not see any problem.

1522. The Chairperson: Are you listening very carefully, gentlemen? Robert does not see any problem.

1523. Mr McGlone: Where are we leaving it, then?

1524. The Chairperson: We have received assurance that subsection (9) will be subject to draft affirmative procedure, which is what we want. Robert, once we have agreed to this, we have agreed to it. Are you giving the Committee an assurance that it will be subject to draft affirmative procedure?

1525. Mr Gray: The Minister has agreed that it will be subject to draft affirmative procedure.

1526. The Chairperson: That is fine. Are we happy enough, gentlemen?

1527. Mr McGlone: What is the time frame for that?

1528. Mr Gray: I would like to have all the amendments that will be subject to draft affirmative procedure ready in time for the next meeting of the Committee.

1529. Mr McGlone: Will we see them then?

1530. Mr Gray: Yes.

Question, That the Committee is content with the clause, subject to the Department’s proposed amendment, put and agreed to.

Clause 4, subject to the Department’s proposed amendment, agreed to.

Clauses 5 and 6 agreed to.

Clause 7 (Offence of abandoning a vehicle: fixed penalty notices)

1531. The Chairperson: I remind members that subsection (9) provides a power for the Department to substitute a new amount of a fixed penalty payment. Again, it should be subject to draft affirmative procedure. We have received assurances that we will have that.

Question, That the Committee is content with the clause, subject to the Department’s proposed amendment, put and agreed to.

Clause 7, subject to the Department’s proposed amendment, agreed to.

Clauses 8 to 13 agreed to.

Clause 14 (Offence of dropping litter in lake, pond or watercourse)

1532. The Chairperson: We now move on to Part 3. I remind members that they raised concerns about the definition of “litter" in the clause. We sought clarity, and members were content with the Department’s response.

Question, That the Committee is content with the clause, put and agreed to.

Clause 14 agreed to.

Clause 15 (Penalty for failing to provide name)

1533. The Chairperson: Members discussed the introduction of fixed penalty notices for giving false name and address information but concluded that those were unworkable. Members were subsequently content with the clause.

Question, That the Committee is content with the clause, put and agreed to.

Clause 15 agreed to.

Clause 16 (Litter offence: fixed penalty notice)

1534. The Chairperson: Members questioned the level of the default fine, which is £75. We discussed the option for councils to encourage payment of fines by increasing the amount for late payments. The Department confirmed that the age of criminal responsibility — that is, to which fixed penalties can be issued — is 10 years of age and that guidance on issuing fines to minors will be issued.

1535. Does anyone wish to make any further comments? We received clarification at our previous meeting. We had a discussion last week in Limavady about who would pick up the fine. It was also raised during the discussion on a later clause. Can you provide clarification on that? It concerned the parent picking up the fine. Was that the issue that was raised about a later clause? How does that impact on clause 16?

1536. Mr Jackie Lambe (Department of the Environment): On the question of who is liable for the fine, there is no onus on the parent of a young person to pay the fine on the young person’s behalf. The fine would be issued — if it is, in fact, issued — to the person responsible for the offence.

1537. The Chairperson: Do members have any comments to make?

1538. Mr W Clarke: I still have serious concerns about criminalising children at 10 years of age. I cannot my head get around that, and I do not care what guidance is given. I have a seven-year-old child, and I am thinking about her coming home at 10 years of age crying her eyes out over being given a fixed penalty. I cannot accept that. It is too young an age at which to criminalise young people.

1539. There has to be an educational aspect to this. The school should get it through to children that if they drop litter, they will have to sit some sort of module, or something similar. If we criminalise 10-year-old children and send them home to their parents with a fixed penalty, we do not know how the home will react. There are a number of issues around that, and I am not happy about it at all. I want it on the record that I do not support the clause.

1540. Mr T Clarke: That issue came up last week concerning graffiti. I am still of the same opinion. The drive down from Limavady over the mountain did not change my view. If someone commits a crime, he or she has to pay the fine. As I said last week, I have three children myself — all minors — and if they committed a crime, they would have to pay the fine. If we want to try to improve and clean the streets, and we will probably find that most of the litter incidents are down to younger ones anyway, so —

1541. Mr W Clarke: That is totally wrong.

1542. Mr T Clarke: I am sorry, but I am speaking. If they take the fine home with them, it is up to the parents to pay it by whatever means, but they have to pay up.

1543. Mr W Clarke: To say that the majority of litter on the street is left by young people and 10-year-olds is an outrageous comment to make. That is absolutely disgraceful. There is more education in school about the environment than there ever was. It is older people who cause most of the litter problems. I need to put that on the record. I will not support the clause, no matter what guise is put on it.

1544. Mr T Clarke: Get Willie Clarke out litter-picking.

1545. Mr Dallat: There is a war between the Clarkes.

1546. Mr Kinahan: I think that I will sit back a little.

1547. The Chairperson: The problem was raised under a different clause. We were content with the comments, but what I asked about last week was the legal opinion. Do we look at making the parent or responsible person pay the fine? Is there any way of amending it or of looking to another clause as a means of dealing with the issue?

1548. Mr Gray: Let me take this opportunity to clarify to the Committee what the Department’s intention is, and this will hopefully reassure the Committee about the whole business of issuing fixed penalty notices to juveniles. The Department’s intention is to issue guidance based on that already in force in other parts of the UK about issuing fixed penalty notices to juveniles. That guidance makes it clear at the outset that councils need to think very carefully about issuing a fixed penalty notice to a juvenile, and it recommends using different procedures. It recommends different procedures for 16- and 17-year-olds, and for children between the age of 10 and 15.

1549. It strongly advises authorities — in our case, councils — to include age-specific policies in operational and enforcement procedures. That includes the kind of thing that you were talking about, such as education in schools, but there will always be the possibility of a fixed penalty notice being issued under this legislation. That is the current position, but the guidance strongly recommends that councils look at the matter very carefully.

1550. The Chairperson: For clarification, the point is that the Bill will introduce a fixed penalty notice. It does not matter what age the person who drops the litter is. We are saying that a different Department sets the age group. We cannot do anything about it under the Bill. It is not within DOE’s remit.

1551. Mr W Clarke: We could make a recommendation.

1552. The Chairperson: We can put it in the report. We can make a recommendation, but can we change the age range or not?

1553. Mr Gray: There is nothing to prevent the Committee from tabling an amendment that outlaws issuing a fixed penalty notice to a child, but if you do that, the only other course open is to prosecute.

1554. The Chairperson: I am not saying that. What I am trying to say is that the legislation will issue a fixed penalty notice, but as regards the justice system, I do not think that we can change the age.

1555. Mr Weir: It is the age of criminal responsibility.

1556. The Chairperson: That is not for us to say. A different Department has to look at that. Is that correct?

1557. Mr Weir: As I said, 10 years of age is the age of criminal responsibility.

1558. The Chairperson: All that I am saying is that we will make a recommendation in the report that it is not correct.

1559. Mr Ross: People do not get a criminal record for receiving a fixed penalty notice.

1560. Mr W Clarke: They do if they do not pay.

1561. The Chairperson: I am trying to deal with how the Committee thinks that the clause should be dealt with by the Department. It is a fixed penalty.

1562. The other issue is the age group. We can put in the report that some members are unhappy with the age group. Beyond that, we cannot change it. My understanding is that it is up to some other Department if it wants to change the age. Is that correct?

1563. Mr Gray: Yes.

1564. Mr McGlone: Mr Gray referred to guidance on those matters for local authorities in Britain. It would be very useful if the Committee could see that guidance or some read-across guidance associated with the legislation for the North. At the minute, we are stabbing in the dark a wee bit.

1565. Mr Gray: A letter has been drafted to the Committee and is awaiting approval. That letter includes the verbatim guidance. That will be with you in the next few days. The deadline for that was tomorrow.

1566. Mr W Clarke: I feel very strongly that 10 years of age is far too young. I do not care what the other Departments are saying. We have the opportunity to table an amendment stating that an older threshold for fixed penalty notices will have to be reached.

1567. Mr T Clarke: Grandparents or 85-year-olds?

1568. Mr W Clarke: I am thinking around 16 or 18 years of age, although I even have doubts about that. It is a serious issue if a 10-year-old is given a fixed penalty. Instead of going home, that child may run away. Who will take responsibility if that happens? If the Committee does not want to table an amendment, that is fair enough. I will put one down. However, we have the power to put down an amendment that fixed penalties not be issued to children between the age of 10 and 16.

1569. Mr T Clarke: Therefore, we tell them that it is acceptable to throw litter?

1570. Mr W Clarke: No. Councils would then look at a different policy for that age group, similar to the guidelines that have been explained. A different measure should be used for that age group. What do we do with a nine-year-old?

1571. The Chairperson: I want to seek clarification before we move on. If we agree to table an amendment to raise the age to 16, are we saying that that would be legally binding and that it would be up to councils to enforce it? Is that correct or is it outside the Committee’s remit to deal with that?

1572. Mr Gray: If the legislation said that councils could issue fixed penalty notices only to those who are over the age of 16, that is what councils would have to do. The question is how are 15- or 16-year-olds dealt with? What is the deterrent to stop them dropping litter? The Department will try to deal with that through very strong guidance, which the Committee will see very shortly.

1573. The Chairperson: Until we see the guidance, we will put clause 16 on hold and come back to it.

Clause 16 referred for further consideration.

Clause 17 (Litter clearing notices)

1574. The Chairperson: I remind members that, at the meeting on 2 December 2010, we asked departmental officials to provide clarification on clause 17 on exemptions for Crown land and educational establishments. Members also asked for more information on enforcement action that has been taken to date under the Litter Order 1994 on Crown land. Members have been provided with a copy of the departmental reply, which states that article 12 of the 1994 Order includes powers to allow district councils to take formal enforcement action, including action in respect of Crown land that is defaced by litter.

1575. Concerning enforcement action, the Department states that it contacted a number of councils across the North, and responses indicate that any concerns that councils might have regarding Crown land that is defaced by litter be addressed voluntarily through an informal approach, rather than through having to resort to formal enforcement action. No councils contacted indicated that they found it necessary to take any formal action. Are members content with the Department’s response, or are there any other questions?

1576. Mr T Clarke: Is the reply suggesting that there is an exemption? If it is saying that there is an exemption, I do not believe that there should be an exemption for anyone. Crown land should be treated equally to any other public building.

1577. Mr Gray: We have explained that there is an exemption, because there is already a legal duty to clean up Crown land.

1578. Mr Dallat: It does not do it.

1579. Mr T Clarke: Therefore, why should it be exempt?

1580. Mr Gray: It is already under a duty. We are talking about a litter-clearing notice provision that will apply to other bodies and other landowners instructing them to clean up their land because they are currently not under any statutory duty to do so.

1581. The Chairperson: An Order is already in place?

1582. Mr Gray: Yes.

1583. The Chairperson: I am only seeking clarification, because we discussed that.

1584. Mr Gray: I said then that it would be a double whammy to remove that exemption.

1585. The Chairperson: OK. Are members happy enough with that explanation?

Question, That the Committee is content with the clause, put and agreed to.

Clause 17 agreed to.

Clause 18 (Street litter: control notices)

1586. The Chairperson: Members raised concerns about addressing smoking-related litter outside pubs, clubs, restaurants, and so on, that has arisen since the new smoking laws came in. I have been advised that the Department will address that issue in subordinate regulations. We were content enough with that.

Question, That the Committee is content with the clause, put and agreed to.

Clause 18 agreed to.

Clauses 19 and 20 agreed to.

Clause 21 (Controls on free distribution of printed matter)

1587. The Chairperson: There were concerns about the clause. At our meeting on 2 December, members asked the Department to provide the Committee with legal opinion on the grounds on which a council may base a decision to approve or refuse consent to distribute printed material on the street and for more information on how the Department envisages that working in practice. The departmental reply states that it cannot provide a legal opinion on that, as:

“Each case received by a council will have to be considered on its merits and a decision made by that particular council. In reaching such a decision the district council may decide to seek a legal opinion relevant to the particular case in question.

Clause 21 of the Bill makes clear that a council may refuse consent where, for example, it considers that the proposed distribution would in all the circumstances be likely to lead to the defacement of the designated land."

It goes on to say:

“Clause 21 of the Bill also includes a process whereby a decision of the council can be appealed to a court of summary jurisdiction. A person aggrieved by a decision of a district council therefore has this option and it is likely that legal opinion relevant to the grounds on which the council’s decision was made would be required.

The Department will be bringing forward, as soon as possible after the Bill is passed by the Assembly, comprehensive guidance covering the practical implementation of the new provisions on controlling the distribution of free literature. The Guidance will be subject to full consultation and it is expected that any concerns raised by councils on the practical workings of the new provisions would be addressed in that Guidance."

1588. Are members content with the Department’s response, or are there any questions?

1589. Mr Dallat: What will happen with literature on windscreens?

1590. The Chairperson: It is down to making an application to the council, is that correct?

1591. Mr Gray: Windscreens are covered if the distribution of free material is on relevant, designated land. However, distributors of such material would need to get permission to put flyers under window wipers.

1592. The Chairperson: It is down to councils to make that decision, and, if someone is unhappy, there is an appeals process.

1593. Mr McGlone: Would that also apply to what are loosely described as Crown properties?

1594. Mr Gray: Do you mean cars that are parked on Crown properties?

1595. Mr McGlone: Aye, I am picking up on John’s point.

1596. Mr Gray: I would need to check that one. Jackie, do you have any views?

1597. Mr Lambe: We may have to come back to the Committee on that, as I do not want to give inaccurate information. However, my initial reaction is that Crown properties do not fall into the category of:

“relevant land of the district council".

1598. My feeling is that councils could not designate an area where the distribution of free printed material requires approval if that included Crown land, unless it is a road that is maintained by Roads Service. However, I would want to be absolutely certain on that.

1599. Mr McGlone: Forgive my ignorance, but I am thinking about car parks that could be interpreted as being Crown property and that are publically open and accessible to everybody.

1600. Mr Lambe: I would want to check with colleagues in Roads Service, but my understanding is that Roads Service does not own many car parks. It manages some leased sites in and around Belfast that are used as car parks, but those sites do not fall into the definition of “Crown land" as they are not owned by the Crown. However, I will seek clarification on that point.

1601. Mr McGlone: Thank you.

1602. The Chairperson: I cannot put the Question. However, in reality, when would people ever access Crown land to advertise?

1603. Mr Lambe: An example that comes to mind is the car park here in Stormont, which is not designated by a council under this provision, because it does not fall into the category of:

“relevant land of the district council".

1604. It is only land in which councils have a role with respect to litter.

1605. The Chairperson: What I am trying to get at is whether people would be able to come in and put stuff on car windscreens on Crown land. Are there any examples of that having happened on Crown land anywhere?

1606. Mr Lambe: I am not aware of any, but primarily —

1607. The Chairperson: I would not imagine so. The Committee member has asked a question, and we cannot put the Question on the clause until we get a definition from the Department.

Clause 21 referred for further consideration.

Clauses 22 and 23 agreed to.

Clause 24 (Abandoned shopping and luggage trolleys)

1608. The Chairperson: I remind members that the Committee raised the prospect of including shopping baskets in the clause but recognised that there would be difficulties with that, as those baskets generally have no identifying marks. Members thrashed the issue out last week after Mr Clarke had raised it, but the Committee was content for the Department to consider the issue at a later date. There are no further updates from the Department or views from Committee members, so I will put the Question.

Question, That the Committee is content with the clause, put and agreed to.

Clause 24 agreed to.

Clause 25 agreed to.

1609. The Chairperson: That concludes the formal clause-by-clause scrutiny of Parts 1, 2 and 3 of the Clean Neighbourhoods and Environment Bill. The Committee needs to come back to two clauses, and it will do so at its meeting of 13 January 2011. At that stage, we will have all the information from the Department. Thank you very much.

13 January 2011

Members present for all or part of the proceedings:

Mr Cathal Boylan (Chairperson)
Mr Patsy McGlone (Deputy Chairperson)
Mr Thomas Buchanan
Mr Willie Clarke
Mr John Dallat
Mr Alastair Ross
Mr George Savage
Mr Peter Weir
Mr Brian Wilson

Witnesses:

1610. The Chairperson (Mr Boylan): I welcome Robert Gray, Hazel Bleeks, Jackie Lambe and Helen Anderson. You are all very welcome.

1611. I remind members that on 16 December the Committee agreed clauses 4, 7 and 22 subject to amendments making the regulations in those clauses to alter the level of fixed penalty fines subject to draft affirmative procedure. Those have been provided by the Department on 10 January. I advise members that I will go through and ask for the Committee’s position on clauses 16 and 21 before formal consideration of the clauses in Part 4. Are members content that the proposed amendments to clauses 4, 7 and 22 meet the needs of the Committee?

Members indicated assent.

Clause 16 (Litter offence: fixed penalty notice)

1612. The Chairperson: We have to go back to two clauses that we passed over. I remind members that the Department has confirmed that the age of criminal responsibility at which fixed penalties can be issued is 10 and indicated that it will produce guidance for councils on issuing fines to minors. At the meeting on 16 December, members felt unable to come to a decision on the clause until they had seen examples of that guidance. The Department has provided details of guidance on fixed penalty notices to juveniles in England and Wales in its response to the issues raised under clause 28 in its second letter. It indicates that similar guidance will be issued to councils here. Do you have any other comments on that or are you content with what you have said?

1613. Mr Robert Gray (Department of the Environment): The guidance will be the starting point for us.

1614. The Chairperson: OK. It is over to the Committee. Do members have any comments?

1615. Mr W Clarke: As I said previously, I believe that criminalising young people through fixed penalties at the age of 11 is too young. It is as simple as that. I have not heard anything to change my mind.

1616. Mr Weir: I am similarly unaltered but on the other side of the fence.

1617. The Chairperson: I know that Mr Clarke has issues with this. Anyone who wishes to bring an amendment forward in the Chamber in respect of the age can do so.

Question put, That the Committee is content with the clause.

The Committee divided: Ayes 4; Noes 4.

AYES

Mr Buchanan; Mr Ross; Mr Savage; 
Mr Weir.

NOES

Mr Boylan; Mr W Clarke; Mr Dallat; 
Mr B Wilson.

Question accordingly negatived.

Clause 16 disagreed to.

Clause 21 (Controls on free distribution of printed matter)

1618. The Chairperson: Trevor Clarke is not here. This is the issue about Crown land. For those who were not at the meeting, I remind members that, at the meeting on 16 December, the Committee deferred a decision on this clause until the Department provided an answer to queries on the clause’s impact on Crown land. The departmental response is in the first letter, and it indicates that the power under this clause to control the free distribution of printed matter does not extend to Crown land but that, under existing law, councils can issue litter abatement notices to those responsible for Crown land to require litter to be cleared. I know that Trevor Clarke brought that issue up. I do not have an issue. Do any other members have comments?

1619. Mr Gray: The Department does not see it as a problem because there is legislation in place to deal with that.

1620. The Chairperson: OK. Legislation already exists to deal with that.

Question, That the Committee is content with the clause, put and agreed to.

Clause 21 agreed to.

1621. The Chairperson: We will now go through clauses 26 to 76 and the four schedules one by one to seek the Committee’s position on each. I will group the clauses where possible. I remind members that this is the last opportunity to discuss the clauses of the Bill and that decisions will be final. Part 4 is about graffiti and other defacement.

Clause 26 (Penalty notices for graffiti and fly-posting)

1622. The Chairperson: I remind members that, at the meeting on 9 December, the Department accepted that a different approach is needed to issuing fixed penalty notices to young people and that the provision of alternative sites for fly-posting was a matter for individual councils. One member felt that the clause needed to be amended to make it compulsory for councils to provide fly-posting sites, but most felt that it should remain optional, although, obviously, new ways to advertise should be encouraged. Members were otherwise content with the clause.

1623. I advise members that the Department has since informed the Committee, in annex A of the letter dated 11 January, which was tabled today, that it intends to amend Part 4 to allow councils to deal more effectively with graffiti and fly-posting. The principal mechanism to achieve that is the inclusion of a new clause, which will be discussed later but which requires a consequential amendment to clause 26, replacing the word “obliteration" with “defacement". Gentlemen, you may wish to take a quick look at the letter dated 11 January, which is in your tabled papers, and we will certainly welcome the new clause. Any new measures to try to address the situation are certainly welcome.

1624. Question, That the Committee is content with the clause, subject to the amendment proposed by the Department to allow councils to deal more effectively with graffiti and fly-posting, put and agreed to.

1625. Clause 26, subject to the amendment proposed by the Department to allow councils to deal more effectively with graffiti and fly-posting, agreed to.

1626. The Chairperson: Are members also content to make a recommendation in the Committee’s report that councils be encouraged to provide fly-posting sites? At the end of the day, that will only be a recommendation. Are we agreed?

Members indicated assent.

Clause 27 (Amount of penalty)

1627. The Chairperson: At the meeting on 9 December, the Department agreed to amend clause 27 to make the power to alter the amount of fixed penalty subject to draft affirmative procedure. Members have been provided with a copy of the amendment. This is draft affirmative again. We have already discussed this, and we are happy enough.

Question, That the Committee is content with the clause, subject to the amendment proposed by the Department to make the power to alter the amount of fixed penalty specified in the Bill subject to draft affirmative procedure, put and agreed to.

Clause 27, subject to the amendment proposed by the Department to make the power to alter the amount of fixed penalty specified in the Bill subject to draft affirmative procedure, agreed to.

Clause 28 (Penalty notices: power to require name and address)

1628. The Chairperson: At the meeting on 9 December, the Department agreed to provide the Committee with an example of the guidance on how the Bill will deal with the issuing of notices to juveniles. Members have been provided with the Department’s response, in annex A of the letter dated 5 January. It is the Department’s intention to produce NI guidance based on ‘Issuing Fixed Penalty Notices to Juveniles’, already in force in England and Wales, after full consultation with relevant parties.

1629. In addition to the specific guidance, the Department intends to bring forward detailed guidance for district councils on the use of fixed penalty notices. The aim of that guidance will be to explain some of the principles that underpin the appropriate use of local environmental fixed penalty notices: how their use should be planned and managed; on what basis they should be issued, and when they should not; and, importantly, how the non-payment of fixed penalty notices should be monitored, managed and dealt with.

1630. It is also the Department’s intention to include in that guidance a section that offers advice on the main issues and rules to consider and follow when using fixed penalty notice enforcement against young people under the age of 18. A draft of that proposed guidance will also be subject to full consultation with interested parties. Are we happy enough with the guidance? It is important that the guidance be sent fairly quickly and in tandem with the Bill’s being implemented, and we want a commitment from the Department in respect of that.

1631. Mr Gray: Yes, in relation to all the guidance.

Question, That the Committee is content with the clause, put and agreed to.

Clause 28 agreed to.

Clauses 29 and 30 agreed to.

Clause 31 (Defacement removal notices)

1632. The Chairperson: At the meeting on 9 December, members were content with clause 31. However, as with clause 26, the Department, in annex A of its tabled letter of 11 January, indicated that it is its intention to make a consequential amendment to this clause as part of its intention to allow councils to deal more effectively with graffiti and fly-posting by replacing the word “flyer" with “placard".

Question, That the Committee is content with the clause, subject to the amendment proposed by the Department to allow councils to deal more effectively with graffiti and fly-posting, put and agreed to.

Clause 31, subject to the amendment proposed by the Department to allow councils to deal more effectively with graffiti and fly-posting, agreed to.

Clauses 32 to 35 agreed to.

New Clause

1633. The Chairperson: In its paper dated 11 January, the Department indicated its intention to strengthen Part 4 of the Bill to allow district councils to deal more effectively with graffiti and fly-posting. It intends to achieve that by inserting a new clause after clause 35, the details of which have been provided at annex A. Would you like to give us a brief overview of the new clause?

1634. Mr Gray: As you said, the Department has now forwarded all the amendments to Part 4. We feel that they address most of the concerns that were raised by the Committee and by those who gave evidence to the Committee, as set out in your analysis table. The Department is also satisfied that, under existing law, a district council can take prosecution action. The Department intends to make that clear in follow-up guidance.

1635. Ms Hazel Bleeks (Department of the Environment): Article 18 of the Local Government (Miscellaneous Provisions) (Northern Ireland) Order 1985 provides a district council with the power to remove or obliterate graffiti which is detrimental to the amenity of any land in its district or any illegally displayed placards or posters. It also enables the council, in certain circumstances, to recover the costs that it incurs in doing so. We sought to strengthen those powers further, and the amendments that will be incorporated in the new article 18, as substituted by new clause 35A, provide that in circumstances where a district council gives notice of its intention to remove or obliterate any graffiti, placard or poster, the period of notice is reduced from 14 days to two days to enable councils to act more quickly. The landowner or occupier, who, in all likelihood, is the victim of the graffiti or fly-posting, will not be responsible for the cost of removing it. Where possible, that cost will be borne by the person who committed the act of graffiti or fly-posting, or the person whose goods, trade, businesses or other concerns are publicised by it.

1636. We also propose a new provision to ensure that compensation can be claimed by a person whose property is damaged by district councils exercising the power to remove or obliterate graffiti, placards or posters. Again, that will safeguard the property owner. However, we are making it clear that compensation cannot be paid to the person who displayed the graffiti, placard or poster, or caused it to be displayed. Any question of disputed compensation will be referred to and determined by the Lands Tribunal.

Question, that the Committee is content with the clause, put and agreed to.

New clause agreed to.

Clause 36 (Sale of aerosol paint to children)

1637. The Chairperson: At the meeting on 9 December, departmental officials agreed to provide the Committee with the age limit on the sale of aerosols in Scotland and to consider amending the Bill to raise the age limit to 18. The Department’s response is at annex B of the letter dated 5 January. It indicates that the age specified in similar legislation is 16. However, on further consideration, the Minister has requested that the wording “under the age of 16", as specified in clause 36, should be changed to “under the age of 18". The Department will therefore bring forward an amendment to the Bill to give effect to that change and raise the age to 18. Are members content with that?

1638. Mr W Clarke: It is very welcome news. The age limit of 16 was criminalising young people in general. I welcome the movement, and it proves that consultation is sometimes listened to.

1639. Mr Dallat: Clause 36(2) says:

“In subsection (1) ‘aerosol paint container’ means a device which—

(a) contains paint stored under pressure, and

(b) is designed to permit the release of the paint as a spray."

1640. Increasingly, these materials are stored in containers with a pump that, when activated, has the same effect as an aerosol. Is that wording adequate to take account of that?

1641. Mr Gray: I will have to check that. It does say “under pressure".

1642. Mr Dallat: Yes. A lot of those products are now not stored under pressure but can be released under pressure because they have a pump and a trigger. I would not want to see an outbreak of pump paint.

1643. The Chairperson: The Department can maybe come back with that response. However, this clause is to do with raising the age for the sale of aerosols to 18.

1644. Mr Dallat: It might read “or be capable of being put under pressure" or something like that. It may be all right the way it is; I do not know.

1645. Mr Gray: It could be. That issue has not been raised before. We need to check that out. My understanding is that people press the button on the can of spray paint and that is it. I had not envisaged dealing with that situation. We need to look at that.

1646. Mr Weir: A valid point has been raised. I wonder about the wording. Clause 36(2)(b) says that it is a device that is:

“designed to permit the release of the paint as a spray."

1647. That is a slightly wider definition that may well cover the situation. Robert is going get back to us on that. It would be wrong to create a prohibition but leave some sort of practical loophole that leads to an issue about whether something is covered by it.

1648. Mr Gray: We will check that out.

1649. The Chairperson: It is clearly stated in the Bill. The word “and" suggests both as opposed to one or the other.

1650. Mr Weir: It is important to get this right. If we are seen to have fallen down on this, I do not want us to look like a bunch of aerosols.

1651. The Chairperson: Do not record that, please. Mr Dallat has raised a valid point, but I think that it is covered by clause 36(2) which says that “aerosol paint container" means a device that:

“(a) contains paint stored under pressure, and

(b) is designed to permit the release of the paint as a spray."

1652. That might cover it. Do you want to respond to that? It says “and".

1653. Mr Gray: My initial view is that we cannot ignore the words “under pressure". I need to take advice on that.

1654. The Chairperson: That could be amended at Consideration Stage if need be.

1655. Mr Gray: It could, or the guidance could make it absolutely clear that there is flexibility to cover other sorts of containers. I do not want to commit one way or the other until I get some sort of advice.

1656. The Chairperson: Mr Dallat has raised the issue, and I think that it can be addressed. I also think that we can agree the clause.

Question, That the Committee is content with the clause, as amended by the Department to raise the limit below which it is illegal to sell aerosol paints to 18, put and agreed to.

Clause 36, as amended by the Department to raise the limit below which it is illegal to sell aerosol paints to 18, agreed to.

Clause 37 (Unlawful display of advertisements)

1657. The Chairperson: At the meeting on 9 December, members were content with the clause but were concerned that councils were likely to experience difficulty in trying to disentangle fly-posting from wider advertising, which come under the control of the Planning Service and is poorly enforced. Members considered the possibility of including a recommendation in that regard. I think that we are content with that. The new clause in relation to allowing councils to deal more effectively with issues covers it.

Question, That the Committee is content with the clause, put and agreed to.

Clause 37 agreed to.

1658. The Chairperson: If members are happy, we will make a recommendation that the Planning Service tightens up on the control of advertising to ensure that councils are able to implement the new fly-posting powers effectively. Are you happy for that recommendation to be made?

Members indicated assent.

New Clause

1659. The Chairperson: In its letter of 11 January, the Department indicated its intention to strengthen Part 4 of the Bill to improve information-gathering powers. It intends to achieve that by inserting a new clause after clause 37, the details of which have been provided at annex B. Would you like to give us a quick overview of that new clause?

1660. Ms Bleeks: Basically, the clause will provide district councils with the power to obtain any information that the council reasonably considers that it needs for the purposes of Part 4 of the Bill, which deals with graffiti and other defacement. Similar powers are already contained in article 20 of the Litter (Northern Ireland) Order 1994, and we understand that councils have found the power very useful, particularly when gathering evidence to enable them to take a prosecution. We were keen to ensure that they had that power in relation to graffiti and fly-posting as well.

Question, That the Committee is content with the clause, put and agreed to.

New clause agreed to.

Clause 38 (Power to make dog control orders)

1661. The Chairperson: We will move on to Part 5 of the Bill, which is in relation to dogs. At its meeting on 9 December we were content enough with clauses 38 to 41.

1662. Mr Gray: We will just take an opportunity to say something here. The main development since the Committee last considered this is that the Department has brought forward a new information-gathering clause in relation to Part 5 which strengthens it. We also want to clarify something that was mentioned at a previous meeting in relation to the dogs issue.

1663. Ms Bleeks: I would like to take the opportunity to clarify something that was said at the Committee meeting in Limavady on 9 December in relation to clause 38, which concerns the power to make dog control orders. The Hansard transcript of that meeting was only received this week, and, having read through it, the Department is somewhat concerned that the Committee was given the impression that a dog control order specifying the maximum number of dogs that can be walked by one person could be applied on a case-by-case basis. That is not the position.

1664. The correct position is that clause 38(3)(d) empowers the district council to make a dog control order specifying the maximum number of dogs that a person may take on to specified land. Prior to making a dog control order, the council must take into account the needs and views of all individuals concerned. However, if such an order is made, it will apply to anyone who takes dogs on to that specified land.

1665. The Chairperson: For clarification, I think that was the issue raised by the Kennel Club. Is that correct?

1666. Ms Bleeks: It was raised specifically in relation to professional dog walkers and greyhound owners — that type of thing. On reading through the Hansard transcript, it appeared that certain individuals could be exempt from a particular dog control order. What we are saying is that, once a dog control order is made in relation to specified land, it applies to everyone who goes on to that land, including professional dog walkers. However, prior to making the order, the council would have to consult with all individuals concerned and then decide whether it was appropriate to make the order. Obviously, the representations of professional dog walkers, the Kennel Club, etc, would be taken into account prior to making the order, and the council might decide that it was not appropriate for that land.

1667. The Chairperson: Obviously, it is still the discretion of the council to decide that. I am trying to remember the comments about that. It is still the council’s discretion, and a key element of all that is proper consultation.

1668. Ms Bleeks: It is fair to say that all the Bill does is give the council the power to make dog control orders in relation to a number of different issues, one of which is specifying the maximum number of dogs. Following on from the Bill, there will be regulations to provide the detail of that and outline the procedures that councils have to follow before they can make a dog control order. One of those will specify that the council must consult.

1669. The Chairperson: That is fine.

1670. Mr Gray: The council may decide, having listened to the views of professional dog walkers and so on, to recommend that the maximum number of dogs on a particular area of land should be, for example, six or four. In other cases, the number might be smaller. It depends on the representations and so on that the council takes into account.

1671. The Chairperson: That is fine. However, I am saying that we need to give both parties — those people who may not wish to have people on their land and those people who are making a case — an opportunity. There must be a proper consultation process. The Kennel Club suggested that we establish a permit scheme to help us to regulate. Have we thought about that? Does that impact on what we are saying here, or are we still saying that we leave it to the discretion of councils as long as there is proper consultation and people have an opportunity?

1672. Ms Bleeks: It has to be down to the councils. The introduction of a permit scheme is viewed as overly cumbersome.

1673. Mr Ross: Effectively, this will allow councils to decide whether or not to impose the orders. Councils can choose not to. You mentioned exemptions at the start — could a local council introduce an order that creates exemptions?

1674. Ms Bleeks: That could be dealt with at the order-making stage. For example, when we look at the regulations that will flow from this, we will look at things like exemptions for assistance dogs. Obviously, if a council makes an order that excludes dogs from certain land, it will want to make exemptions for assistance dogs. Therefore, it is possible that professional dog walkers could be exempted through the detail of the order. The Bill merely gives the council the power to make those orders if it chooses to.

1675. Mr Ross: That is fair enough.

1676. The Chairperson: We need to be very careful to give those people the opportunity and ensure that the council looks at it properly. We will have to make a recommendation.

Question, That the Committee is content with the clause, put and agreed to.

Clause 38 agreed to.

Clauses 39 to 41 agreed to.

1677. The Chairperson: I also ask that we make a recommendation in the report about the matter that has been highlighted today. Do members agree?

Members indicated assent.

Clause 42 (Amount of fixed penalties)

1678. The Chairperson: At the meeting on 9 December, the Department agreed to amend this clause to make the power to alter the amount of fixed penalties subject to draft affirmative procedure.

Question, That the Committee is content with the clause, subject to the amendment proposed by the Department to make the power to alter the amount of fixed penalty specified on the face of the Bill subject to draft affirmative procedure, put and agreed to.

Clause 42, subject to the amendment proposed by the Department to make the power to alter the amount of fixed penalty specified on the face of the Bill subject to draft affirmative procedure, agreed to.

Clauses 43 and 44 agreed to.

New Clause

1679. The Chairperson: As with Part 4, the Department indicated its intention to strengthen Part 5 of the Bill to give councils improved information-gathering powers. It intends to achieve that by inserting a new clause after clause 44, the details of which have been provided at annex B to the letter dated 11 January. Will you give a brief overview of the new clause for members’ benefit?

1680. Ms Bleeks: It is really as before. It is exactly the same as new clause 37A and article 20 of the 1994 Order. It gives district councils the power to obtain any information that the council reasonably considers it needs for the purposes of Part 5 of the Bill. Again, we understand that councils will find this power very useful, particularly when gathering evidence to enable them to take a prosecution.

Question, That the Committee is content with the clause, put and agreed to.

New clause agreed to.

Clauses 45 to 49 agreed to.

Clause 50 (Amount of fixed penalty)

1681. The Chairperson: At the meeting on 9 December 2010, the Department agreed to amend this clause to make the power to alter the amount of fixed penalty subject, once again, to draft affirmative procedure.

Question, That the Committee is content with the clause, subject to the amendment proposed by the Department to make the power to alter the amount of fixed penalty specified on the face of the Bill subject to draft affirmative procedure, put and agreed to.

Clause 50, subject to the amendment proposed by the Department to make the power to alter the amount of fixed penalty specified on the face of the Bill subject to draft affirmative procedure, agreed to.

1682. The Chairperson: We will all know what affirmative procedure is when this is done.

Clauses 51 and 52 agreed to.

Clause 53 (Power of entry)

1683. The Chairperson: At our meeting on 9 December, departmental officials agreed to clarify the situation in regards to liability for damage to alarms caused by council officials. The Department’s response is provided in annex C of the letter dated 5 January. It states that:

“Clause 55(9) of the Bill states that ‘nothing done by, or by a member of, a district council or by an officer of or another person authorised by a district council, if done in good faith ... is to subject the council or any of those persons personally to any action, liability, claim or demand’."

1684. That is very well put. Thank you very much. It continues:

“Council officers, and those authorised by a council, are therefore indemnified from any damage caused in exercising their powers of entry to silence an alarm, provided that action is exercised in good faith."

1685. Are members content with the Department’s response?

Members indicated assent.

Question, that the Committee is content with the clause, put and agreed to.

Clause 53 agreed to.

Clauses 54 to 57 agreed to.

Clause 58 (Noise offences: fixed penalty notices)

1686. The Chairperson: At the meeting on 9 December, the Department agreed to amend the clause to make the power to alter the amount of fixed penalty subject to draft affirmative procedure. We are content with the Department’s response.

Question, That the Committee is content with the clause, subject to the amendment proposed by the Department to make the power to alter the amount of fixed penalty specified on the face of the Bill subject to draft affirmative procedure, put and agreed to.

Clause 58, subject to the amendment proposed by the Department to make the power to alter the amount of fixed penalty specified on the face of the Bill subject to draft affirmative procedure, agreed to.

Clause 59 agreed to.

Clause 60 (Statutory nuisances)

1687. The Chairperson: At the meeting on 9 December, the Department agreed to consider an amendment in relation to noise from illegal motorsports tracks. The Department’s response is at annex D of the letter dated 5 January. The Department states that the improved procedures for dealing with statutory nuisance that are brought about by Part 7 will enable councils to deal more effectively with noise that is emitted from land that is prejudicial to health or a nuisance. Accordingly, the Department is of the view that an amendment in relation to noise from illegal motorsports tracks is not required as the situation is already adequately covered by the Bill. Trevor Clarke raised this issue. Are members content with the Department’s response?

Members indicated assent.

1688. The Chairperson: At the meeting on 9 December, members also asked for clarification of clause 60(1)(l) as we were concerned that it might be used to impede the natural progression of water systems. Again, Trevor Clarke raised this issue. The Department’s response is provided at annex E of the letter dated 5 January, and states that English case law has established that the range of potential recipients of abatement notices under the provision are subject to an important limitation. Where a natural watercourse becomes silted up by natural causes and causes a nuisance by flooding, the landowner is unlikely to be held liable under the provision. By contrast, if a watercourse is created or substantially altered by humankind, the landowner or occupier is responsible for its design, construction and maintenance and may be in default in respect of their inadequacies. Are members content with the response in relation to watercourses?

Members indicated assent.

1689. The Chairperson: In addition, on 9 December, when members considered clause 65, they asked the Department to consider extending the definition of “owner" in clause 65 to the rest of the Bill, as was requested by the Local Government Association and several individual councils. The Department agreed to consider that, and in annex C of its response dated 11 January it proposes two amendments to the clause that will expand the definition of “owner" to the whole of Part 7. I think that we are happy enough with that response.

Question, That the Committee is content with the clause, subject to the amendments proposed by the Department to expand the definition of “owner" in clause 65 to the whole of Part 7, put and agreed to.

Clause 60, subject to the amendments proposed by the Department to expand the definition of “owner" in clause 65 to the whole of Part 7, agreed to.

Clause 61 (Duty of district council to inspect for statutory nuisance)

1690. The Chairperson: At the meeting on 9 December, the Department agreed to consider an amendment in relation to the inclusion of pigeons. The Department’s response, at annex F of the letter dated 5 January, states that it considers that the existing powers that are available to councils in clause 60(1)(a):

“any premises in such a state as to be prejudicial to health or a nuisance"

and clause 60(1)(e):

“any accumulation or deposit which is prejudicial to health or a nuisance"

are sufficient to allow councils to serve an abatement notice where there are problems associated with pigeons. Are members content with the response?

Members indicated assent.

Question, That the Committee is content with the clause, put and agreed to.

Clause 61 agreed to.

Clauses 62 to 64 agreed to.

Clause 65 (Expenses recoverable from owner to be a charge on premises)

1691. The Chairperson: As mentioned previously at clause 60, the Committee requested the expansion of the definition of “owner" in this clause to the whole of the Bill, and members have a copy of the response. The Department has proposed amendments that will apply the definition to the whole of Part 7, which includes an amendment to the clause. Are members content with the Department’s response?

Members indicated assent.

Question, That the Committee is content with the clause, subject to the amendments proposed by the Department to expand the definition of “owner" in this clause to the whole of Part 7, put and agreed to.

Clause 65, subject to the amendments proposed by the Department to expand the definition of “owner" in this clause to the whole of Part 7, agreed to.

Clauses 66 to 71 agreed to.

Clause 72 (Regulations and orders)

1692. The Chairperson: At the meeting on 9 December, the Department agreed to amend the clause to ensure that the powers, once again, become subject to draft affirmative procedure.

Question, That the Committee is content with the clause, subject to the amendment proposed by the Department to make the powers to alter the amount of fixed penalty specified on the face of the Bill subject to draft affirmative procedure, put and agreed to.

Clause 72, subject to the amendment proposed by the Department to make the powers to alter the amount of fixed penalty specified on the face of the Bill subject to draft affirmative procedure, agreed to.

Clauses 73 to 76 agreed to.

Schedules 1 to 4 agreed to.

Long title agreed to.

1693. The Chairperson: That concludes the formal clause-by-clause consideration of the Clean Neighbourhoods and Environment Bill. A report will be brought back to the Committee in the next couple of weeks with the recommendations that we agreed on the clauses. Thank you very much. I have no doubt that we will see you again, and I take this opportunity to wish you a happy new year.

1694. Mr Gray: Thank you.

26 January 2011

Members present for all or part of the proceedings:

Mr Cathal Boylan (Chairperson)
Mr Willie Clarke
Mr Danny Kinahan
Mr George Savage
Mr Brian Wilson

Clause 16 (Litter offence: fixed penalty notice)

1695. The Chairperson (Mr Boylan): We will now move on to clause 16 of the Clean Neighbourhoods and Environment Bill so that we can go over the issue that arose about the age of an offender. When we voted on that clause previously, the result was 4:4. We sought clarity at that time as to which way the vote would go, and we agreed that it would go in favour of the clause as drafted. However, that was not the case. As it was a tied vote, the decision was not that the clause would go through as drafted. That means that we have to look at it again.

1696. The Committee Clerk: We need to clarify whether members are content that that is how they intended the vote to be. The Chairperson asked whether members were content with the clause as drafted, and the vote was tied at 4:4. That means that it did not go forward as drafted, so that proposal was not carried. The indication that I gave after that was that the clause would go ahead as drafted, but that is not correct. Therefore, we need to confirm that members are content that the decision that was made on that day is the one that they want. If it is not, the Committee can reconsider that this morning.

1697. Mr Kinahan: I was not here.

1698. The Chairperson: At our meeting on 13 January 2011, the Committee divided on clause 16, which is entitled “Litter offence: fixed penalty notice". The minutes of the meeting recorded that the Committee was content with the clause as drafted. However, that was an incorrect decision.

1699. I remind members that the Department confirmed that the age of criminal responsibility is 10, meaning that fixed penalty notices could be issued to anyone of that age. The Department also indicated that it would produce guidance for councils on issuing fines to minors. At the meeting on 16 December 2010, members felt unable to come to a decision on clause 16 until they had seen examples of that guidance. The Department provided details of guidance that is used in England and Wales concerning issuing fixed penalty notices to juveniles, and it indicated that similar guidance would be issued to councils here.

1700. A concern about that age was the issue that some Committee members, particularly Mr Willie Clarke, identified. Ultimately, when we went to the vote, it was split at four each, and we are saying that we agreed the actual clause as drafted. However, that is not the case. We did not agree that it should refer to that age group, so we need clarification.

1701. The Committee Clerk: If I could just clarify this point, the clause is about introducing the opportunity for councils to issue fixed penalty notices for litter offences. That applies down to the age of 10, because that is the age of criminal consent. However, that is a separate issue; it is not identified in the Bill. As the law stands, councils have the power to prosecute people from age 10 upwards for litter offences. Clause 16 would introduce an alternative, that is, a fixed penalty notice, for that offence. Therefore, the concern was about the age of consent applying to the clause.

1702. To ensure that members are absolutely sure about what they are agreeing to, by not agreeing the clause, they are not changing the age of consent or the fact that councils can still prosecute. They are saying that a fixed penalty notice could not be applied for a litter offence.

1703. Mr Kinahan: It could not be applied to a minor.

1704. The Committee Clerk: It could not be applied to any person of any age; it is simply that the age of criminal responsibility is 10. The clause will apply down to age 10.

1705. Mr W Clarke: Thank you for that explanation. We are not saying that we do not want to see fixed penalties for litter offences. We are saying that we think that children between the ages of 10 and 16 are too young to be criminalised for a litter offence. I believe they should get some sort of guidance or caution followed by some type of education on the matter. If a child is seen littering, they should go through some sort of course at school or to a waste-management educational course.

1706. I think that we need an amendment to the clause. I think that that is what we told the departmental officials, but they seemed to dig their heels in and were reluctant to negotiate or even to bring forward any sort of compromise position. They just kept going on about the guidance. I also talked to my party, and it is totally opposed to the criminalisation of children. I have already talked to the Bill Office about tabling an amendment, but it is up to the Committee to decide what it wants to do.

1707. The Chairperson: What is the time frame for this?

1708. The Committee Clerk: We have to complete our report on the Bill by Friday, and members have already received a draft report for tomorrow’s meeting. However, members will see that clause 16 has been left undecided at this stage. We will draft something on the basis of this meeting.

1709. If members feel that the clause needs to be amended, we can do that. Therefore, members would be agreeing the clause, subject to an amendment. If it is a Committee decision, we can bring an amendment later. It does not have to be included word for word in the report; the report merely has to say that the Committee has made the decision.

1710. We saw the guidance from the Department, which maintained that the guidance will steer how councils will be encouraged or guided in the issuing of fixed penalty notices to minors. The Committee could look at an amendment, at a recommendation, or it could simply go with the clause as drafted, and a member could bring forward an amendment of their own accord or of that of their party.

1711. Mr W Clarke: I thought that the original 4:4 vote was that we were taking an amendment on the clause.

1712. The Committee Clerk: Perhaps I steered you in the wrong direction on that; my apologies for that. What we succeeded in doing the previous time was to not agree the clause as drafted, so perhaps we need to go a step further now.

1713. The Chairperson: That is why I sought clarification on the day.

1714. Mr Savage: With regard to the age issue, I was walking through a big shopping centre last week and saw some young people looking for bins to put their litter in. Younger people are now very conscious of litter, and older people could take a lesson from them. I find that very interesting, and I have to give teachers credit for what they are doing in schools.

1715. Mr Kinahan: I was not at the relevant Committee meeting, but I am happy for us to table an amendment to the clause. However, people should be given only one chance and be provided with some form of education on the issue. If they commit the offence again, they should be punished and fined. As long as the decision is firm on the second shot, we should look at an amendment. Can we do it in a way that means that we can get it back by Thursday?

1716. The Committee Clerk: I will talk to the Bill Clerk about that. We can agree to do something, subject to an amendment, and bring the wording of that amendment to the Committee between Committee Stage and Consideration Stage. Therefore, members will have time to consider the exact wording. However, today we need to agree on whether the Committee wants an amendment, and we can then provide the detail of that amendment. It is really a matter of the Committee’s agreeing exactly what it would like the amendment to do.

1717. Mr W Clarke: I propose that we make an amendment.

1718. The Chairperson: We need to agree the clause as drafted, subject to amendment. Are you happy enough to go down that route?

Question, That the Committee is content with the clause, subject to amendment, put and agreed to.

Appendix 3

Written Submissions 
Relating to the Report

Armagh City and District Council Submission to the Clean Neighbourhoods and Environment Bill

By email to doecommittee@niassembly.gov.uk

13 August 2010
The Clerk of the Environment Committee
Room 247,
Parliament Buildings,
Ballymiscaw,
Stormont,
Belfast
BT4 3XX

Dear Sirs

Re: Clean Neighbourhoods and Environment Bill

Thank you for the opportunity to provide the views of Armagh City and District Council to the Committee on the above matter as requested

The Council would wish to take this opportunity to comment on the provisions of the Bill as set out in the report following.

I would ask you to note that due to time constraints over the summer period, it has not been possible to have this report ratified by the Council and it is anticipated that it will be reviewed by Council at a September meeting. Should any changes arise, I will advise you of same.

Yours faithfully

Fionnuala Loughran
Deputy Director, Regulatory Services and Audit

Armagh City and District Council Response to the Committee for the Environment on The Clean Neighbourhoods and Environment Bill

The Council welcomes the introduction of the Bill and the additional and effective powers for local councils that will help us to deal with issues that affect our communities and the quality of our local environment. We hope that this Bill will assist the Council in securing and maintaining high quality, clean neighbourhoods and a desirable area in which to live and work.

The Council does however have concerns as to the funding and resourcing of the additional new duties proposed for the council and also in relation to extensions to existing statutory duties.

Armagh City and District Council would also make the comment that we feel that the current powers would be strengthened if issues such as ‘unsightly’ and unkempt gardens and properties in residential areas were legislated for. Under current powers when we receive complaints of such properties it is not possible to establish that statutory nuisance conditions exist. Therefore, if the properties are not dangerous and are without food harborage for pests, the council has no redress to formal action and again can only use informal approaches to property owners. The result is low level environmental detriment and a reduction in the pride and appearance of a residential area.

We do note the Department’s comments on page 30 of the response document to the consultation exercise and their assessment of the range of existing legislative provisions that currently exist. The Department believes that these already provide suitable means of dealing with structures that are detrimental to the amenity of an area. Given the practical experience of officers in investigating such complaints from residents and members; Council contests that the existing provisions in other legislation are applicable to the low level environmental issue of overgrown gardens and unsightly properties. Legislation such as Article 65 and 66 of the Pollution control and Local Government Order or the powers of NIHE under Article 63 of the Housing (NI) Order 1981 have a role in very specific circumstances where certain conditions are met, and unfortunately are not, in our experience, suitable as a formal means of securing improvement to properties and gardens that are detrimental to the amenity of an area.

Armagh City and District Council would therefore urge that relevant legislation in the UK such as section 215 of the Town and Country Planning Act 1990 is enacted in NI with powers given to the councils to require land to be cleaned up when its condition adversely affects the amenity of the area.

Part 1 Gating Orders

Armagh City and District Council recognises the benefits that gating orders can bring to the public, local communities and businesses.

A number of councils have already been involved in alley gating schemes and it is accepted that the issue of resourcing such schemes (eg costs of installation, staff, long-term maintenance, public liability etc) requires attention. In many cases, gating schemes have not progressed since they were first introduced in 2002 for lack of a promoter with sufficient funding to support the project. Council recommends that this part of the Act is accompanied by sufficient new burden funding and resources to ensure it is effectively utilised

Part 2 Vehicles

Clause 2

Armagh City and District Council notes the Departments comments that this clause provides additional power to the councils to deal with nuisance parking where 2 or more vehicles are parked for the purposes of advertising for sale within 500 metres of each other on a road. As the Department has agreed that the Street Trading (NI) Act 2001 can also deal with the sale of vehicles on a road, we would request that the proposal to consult on guidance on the use of existing and proposed powers is expedited in order to provide clarification to councils.

We also note that the matter of nuisance caused by vehicles parked on the street awaiting repair has not been addressed by this Bill due to the legislative timetable. The Council would request that this matter is addressed at the earliest opportunity so that more effective controls can be introduced to help reduce the impact of such activities in a residential area.

Part 3 Litter

Clause 17 Litter Clearing Notices

Armagh City and District Council remains concerned that the provision of Clause 17 to amend the Litter (NI) Order 1994 with Article 12 A (10) exempts Crown or land of an educational institution or statutory undertaker. We believe strongly that to retain this exemption will not assist in improving the general amenity and does not allow for efficient management of vacant , derelict land or open spaces in relation to litter, that are owned by other bodies.

Councils regularly face criticism for land that is affected by litter and that is controlled by other bodies that have statutory cleansing duties. These bodies do not invest the same time and effort into cleansing services. There exists a great disparity between what councils have to do in relation to litter etc and what other landowning bodies have to do; and the result is a degraded environment across Northern Ireland. Expecting other bodies to ‘do their duty’ has been shown not to work and thus leaving this unchanged is a recipe for ongoing problems and does not provide an effective solution to tackle problems within the spirit of the Bill.

Litter Clearing Notices have the potential to be an effective tool that can be used to raise the visual amenity of any area, but only if they can be used extensively. We would request that serious consideration is given to removing the exceptions to which litter clearing notices shall not be served under Clause 17 Article 12(10).

We note in the Department’s response document that they consider it is not possible to bring this forward at this time due to the tight legislative timetable, but will consider this issue further in the context of proposed litter guidance. We would urge that efforts are made to extent the scope of the Litter Clearing Notices to deal with all areas of land.

Part 4 Graffiti And Other Defacement

Clauses 26 – 35

Armagh City and District Council welcomes the acknowledgement of the Department in its response document on the consultation process that councils need to have access to a comprehensive range of powers to take action against both the perpetrators and beneficiaries of fly posting. We strongly support the proposal of the Department to amend the Act to make current Planning Service powers available to Councils to deal with this issue.

Currently, enforcement of advertisement control in Article 84, The Planning Northern Ireland Order (PNIO) 1991, provides for prosecution and removal similar to England’s section 224 Town and Country Planning Act (TCPA) 1990 – including beneficiaries – but is a level 3 penalty and expressed as a Department power. The Planning Service in Northern Ireland does not use this power. Therefore, it is essential that councils be given these powers for effective enforcement through prosecution of both perpetrators and beneficiaries of fly posting, in addition to the powers of removal.

We also welcome the retention of Councils existing ability to immediately remove or obliterate placards, posters and graffiti using powers in the Local Government (Miscellaneous Provisions) (NI) Order 1985. To replace this provision with the proposal of a Defacement Removal Notice would have been cumbersome and bureaucratic.

However, contrary to the comment of the Department in its consultation response, Council still contests that the Bill should include powers to prosecute persons responsible for a surface which has been defaced by graffiti or fly posting for not complying with a Defacement Removal Notice. We do not accept that the Departments view that it would be ‘inappropriate’ to provide powers to prosecute and that the ability to re coup costs is a more appropriate course of action. Whilst we do of course wish to work in partnership with owners of street furniture, not all ‘relevant surfaces’ as described in Clause 31 (8) and (9) will be owned by statutory agencies. It can be readily envisaged that owners of buildings or land, particularly if vacant or derelict, will not comply with a notice on the basis that there is no potential legal action that can be taken against them.

Clause 36 Sale of Aerosol paint to children

Armagh City and District Council welcomes this measure. We would still consider that 18 is a more appropriate age for the offence rather than 16.

The minimum age for the sale of tobacco products and butane gas lighter refills is 18 and Council would be of the view that 18 should also be the minimum age for the purchase/sale of aerosol paints. Maintaining a standard minimum age would enable councils to combine regulatory and test purchasing activities, which would be more cost effective and which would comply more readily with government Better Regulation policies, rather than a separate test purchasing exercise as envisaged at Clause 36 (7) (c), solely for this purpose.

We would also highlight to the department that additional resources will be required for councils to identify premises selling aerosol paints and to raise awareness of the new legislation before test purchasing can take place.

Part 5 Dogs

The Council welcomes the power to make local dog control orders to address issues such as keeping of dogs on leads, exclusion of dogs from areas and dog fouling.

Whilst the Department comments that councils will be able to draw up a ‘Fouling of Land by dogs Order’ for the entire council area if they so chose, we are still reluctant to accept this as a replacement for the current offence found in Article 4 of the Litter (NI) Order 1994. Councils already have an effective means of dealing with offence of dog fouling and to replace it with a Dog control order process appears bureaucratic and cumbersome when a suitable mechanism already exists.

It is important to ensure that the making of a dog control order is a streamlined and practical procedure. The Department will therefore need to consult with District Councils on the proposed Regulations associated with dog control orders.

Part 6 Noise

The additional powers introduced by the draft Bill are welcomed and will significantly update the existing Northern Ireland legislative position. It will give District Councils new powers to address noise problems which currently are not covered by the existing provisions in Northern Ireland but which can be addressed by GB local authorities. Therefore these powers are welcomed as a means of addressing local noise problems and therefore will assist in improving quality of life and health.

The additional powers will introduce an additional workload for councils as new types of noise complaint will require thorough investigation where currently only advice and / or informal action may be taken. Furthermore, detailed policy and procedures will be required within councils to ensure the successful implementation of these new and amended provisions.

Part 7 Statutory Nuisance

Clause 60 Statutory nuisances

The Council welcomes the extended list of statutory nuisances to include artificial light and insect pests.

Clause 62 Summary proceedings for statutory nuisances

62 (1)

The Council welcomes the new power contained in 62 (1) to serve an abatement notice in anticipation of a statutory nuisance occurring. This will help improve the quality of life and the environment for local residents as action can be taken before a nuisance situation arises.

62 (10)

Armagh City and District Council is concerned that the power of the court to make an order following conviction requiring the nuisance to be abated has not been included in the Clause 62 of CNE Bill. This provision currently exists in Section 112 of the Public Health Ireland Act and is proposed to be repealed. We view this as a retrograde step. The introduction of new legislation should always, in our opinion, add to or improve the existing situation; and in the case of enforcement tools or penalties, enhance and strengthen what is already available. Whilst we accept that on summary conviction the level of fine has been raised to Level 5 and there is ‘daily penalty’ of one tenth of that level for each day the offence continues, Council still believes that given the level of fines imposed by the Magistrates court, that the imposition of a court order to carry out work or to abate a nuisance or prevent it recurring, is a powerful deterrent which should be included in this legislation.

62(2)(b) Definition of ‘owner’

In order to ensure effective enforcement of the abatement notice provision, Council would ask that, similar to the present position in the Public Health Ireland Act 1878, the definition of owner means ‘the person for the time being receiving the rackrent of the lands or premises…whether on his own account or as an agent or trustee for any other person, or who would so receive the same if such lands or premises were let at a rackrent’

In dealing with nuisance conditions in rented accommodation, it is not always possible to determine the owner of the property or they may reside outside the jurisdiction. In these or similar cases, it is important to be able to serve notice on an agent so that the nuisance might be abated.

Council would ask that the definition of owner above will be covered by the proposed Bill.

Ballymena Borough Council Submission to the Clean Neighbourhoods 
and Environment Bill

Detailed Response to the Clean Neighbourhoods and Environment Bill 
Environmental Services Department, Ballymena Borough Council, 27th July 2010

Banbridge District Council Submission to the Clean Neighbourhoods and Environment Bill

By email to doecommittee@niassembly.gov.uk
13 August 2010

The Clerk of the Environment Committee
Room 247
Parliament Buildings
Ballymiscaw
Stormont
Belfast
BT4 3XX

Dear Sirs

Re: Clean Neighbourhoods and Environment Bill

Thank you for the opportunity to provide the views of Banbridge District Council to the Committee on the above matter as requested

The Council would wish to take this opportunity to comment on the provisions of the Bill as set out in the report following.

I would ask you to note that due to time constraints over the summer period, it has not been possible to have this report ratified by the Council and it is anticipated that it will be reviewed by Council at a September meeting. Should any changes arise, I will advise you of same.

Yours faithfully

Gillian Topping
Head of Environmental Health

The Council welcomes the introduction of the Bill and the additional and effective powers for local councils that will help us to deal with issues that affect our communities and the quality of our local environment. We hope that this Bill will assist the Council in securing and maintaining high quality, clean neighbourhoods and a desirable area in which to live and work.

The Council does however have concerns as to the funding and resourcing of the additional new duties proposed for the council and also in relation to extensions to existing statutory duties.

Banbridge District Council would also make the comment that we feel the Bill does not adequately address an area of significant concern for local residents. We receive regular and numerous complaints about issues surrounding ‘unsightly’ and unkempt gardens and properties in residential areas. Often, no statutory nuisance conditions exist, the properties are not dangerous and without evident pest infestation, the council has no redress to formal action. Banbridge District Council is of the view that the CNE Bill was designed to address such types of issues that lead to environmental detriment and a reduction in the pride and appearance of a residential area.

We do note the Department’s comments on page 30 of the response document to the consultation exercise and its assessment of the range of existing legislative provisions that currently exist. The Department believes that these already provide suitable means of dealing with structures that are detrimental to the amenity of an area. Given the practical experience of officers in investigating such complaints from residents and members, Council contests the applicability of existing provisions in other legislation to the issue of overgrown gardens and unsightly properties. Legislation such as Article 65 and 66 of the Pollution control and Local Government Order or the powers of NIHE under Article 63 of the Housing (NI) Order 1981 have a role in very specific circumstances where certain conditions are met, and are unfortunately, in our experience, not suitable as a formal means of securing improvement to many properties and gardens that are detrimental to the amenity of an area.

Banbridge District Council would therefore urge that relevant legislation in the UK such as section 215 of the Town and Country Planning Act 1990, is enacted in NI with powers given to the councils to require land to be tidied up when its condition adversely affects the amenity of the area.

Part 1 Gating Orders

Banbridge District Council recognises the benefits that gating orders can bring to the public, local communities and businesses.

A number of councils have already been involved in alley gating schemes and it is accepted that the issue of resourcing such schemes (eg costs of installation, staff, long-term maintenance, public liability etc) requires attention. In many cases, gating schemes have not progressed for lack of a promoter with sufficient funding to support the project. Council recommends that this part of the Act is accompanied by sufficient new burden funding and resources to ensure it is effectively utilised

Part 2 Vehicles

Clause 2

Banbridge District Council notes the Departments comments that this clause provides additional power to the councils to deal with nuisance parking where 2 or more vehicles are parked for the purposes of advertising for sale within 500 metres of each other on a road. As the Department has agreed that the Street Trading (NI) Act 2001 can also deal with the sale of vehicles on a road, we would request that the proposal to consult on guidance on the use of existing and proposed powers is expedited in order to provide clarification to councils.

We also note with disappointment that the matter of nuisance caused by vehicles parked on the street awaiting repair has not been addressed by this Bill. The Department commented that this is a significant proposal which would require detailed consideration and amendment to the Bill that is not possible due to the legislative timetable. The Council would request that this matter is addressed at the earliest opportunity so that more effective controls can be introduced to help reduce the impact of such activities in a residential area.

Part 3 Litter

Clause 17 Litter Clearing Notices

Banbridge District Council remains concerned that the provision of Clause 17 to amend the Litter (NI) Order 1994 with Article 12 A (10) exempts Crown or land of an educational institution or statutory undertaker. We believe strongly that to retain this exemption will not assist in improving the general amenity and does not allow for efficient management of vacant, derelict land or open spaces in relation to litter, that are owned by other bodies.

Councils regularly face criticism for land that is affected by litter and that is controlled by other bodies that have statutory cleansing duties. These bodies do not invest the same time and effort into cleansing services. There exists a great disparity between what councils have to do in relation to litter etc and what other landowning bodies have to do; and the result is often a degraded environment across Northern Ireland. Expecting other bodies to ‘do their duty’ has been shown not to work and thus leaving this unchanged is a recipe for ongoing problems and does not provide an effective solution to tackle problems within the spirit of the Bill.

Litter Clearing Notices have the potential to be an effective tool that can be used to raise the visual amenity of any area, but only if they can be used extensively. We would request that serious consideration is given to removing the exceptions to which litter clearing notices may be served under Clause 17 Article 12(10).

We note in the Department’s response document that it does not consider it possible to bring this forward at this time due to the tight legislative timetable, but will consider this issue further in the context of proposed litter guidance. We would urge that efforts are made to extent the scope of the Litter Clearing Notices to deal with all areas of land.

Part 4 Graffiti And Other Defacement

Clauses 26 – 35

Banbridge District Council welcomes the acknowledgement of the Department in its response document on the consultation process that councils need to have access to a comprehensive range of powers to take action against both the perpetrators and beneficiaries of fly posting. We strongly support the proposal of the Department to make current Planning Service powers available to Councils to deal with this issue.

Currently, enforcement of advertisement control in Article 84, The Planning Northern Ireland Order (PNIO) 1991, provides for prosecution and removal similar to England’s section 224 Town and Country Planning Act (TCPA) 1990 – including beneficiaries – but is a level 3 penalty and expressed as a Department power. The Planning Service in Northern Ireland does not use this power. Therefore, it is essential that councils be given these powers for effective enforcement through prosecution of both perpetrators and beneficiaries of fly posting, in addition to the powers of removal.

We also welcome the retention of Councils’ existing powers to immediately remove or obliterate placards, posters and graffiti using powers in the Local Government (Miscellaneous Provisions) (NI) Order 1985. To replace this provision with the proposal of a Defacement Removal Notice would have been cumbersome and bureaucratic.

However, contrary to the comment of the Department in its consultation response, Council still contests that the Bill should include powers to prosecute persons responsible for a surface which has been defaced by graffiti or fly posting for not complying with a Defacement Removal Notice. We do not accept that the Departments view that it would be ‘inappropriate’ to provide powers to prosecute and that the ability to re coup costs is a more appropriate course of action. Whilst we do of course wish to work in partnership with owners of street furniture, not all ‘relevant surfaces’ as described in Clause 31 (8) and (9) will be owned by statutory agencies. It can be readily envisaged that owners of buildings or land, particularly if vacant or derelict, will not comply with a notice on the basis that there is no potential legal action that can be taken against them.

Clause 36 Sale of Aerosol paint to children

Banbridge District Council welcomes this measure. We would still consider that 18 is a more appropriate age for the offence rather than 16. The minimum age for the sale of tobacco products and butane gas lighter refills is 18 and Council would be of the view that 18 should also be the minimum age for the purchase/sale of aerosol paints. Maintaining a standard minimum age would enable councils to combine regulatory and test purchasing activities, which would be more cost effective and which would comply more readily with government Better Regulation policies, rather than a separate test purchasing exercise as envisaged at Clause 36 (7) (c), solely for this purpose.

We would also highlight to the department that additional resources will be required for councils to identify premises selling aerosol paints and to raise awareness of the new legislation before test purchasing can take place.

Part 5 Dogs

The Council welcomes the power to make local dog control orders to address issues such as keeping of dogs on leads, exclusion of dogs from areas and dog fouling.

Whilst the Department comments that councils will be able to draw up a ‘Fouling of Land by Dogs Order’ for the entire council area if they so chose, we are still reluctant to accept this as a replacement for the current offence found in Article 4 of the Litter (NI) Order 1994. Councils already have an effective means of dealing with the offence of dog fouling and to replace it with a Dog control order process appears bureaucratic and cumbersome when a suitable mechanism already exists.

It is important to ensure that the making of a dog control order is a streamlined and practicable procedure. The Department will therefore need to consult with District Councils on the proposed Regulations associated with dog control orders.

Part 6 Noise

The additional powers introduced by the draft Bill are welcomed and will significantly update the existing Northern Ireland legislative position. It will give District Councils new powers to address noise problems which currently are not covered by the existing provisions in Northern Ireland but which can be addressed by GB local authorities. Therefore these powers are welcomed as a means of addressing local noise problems and therefore will assist in improving quality of life and health.

The additional powers will introduce an additional workload for councils as new types of noise complaint will require thorough investigation where currently only advice and / or informal action may be taken. Furthermore, detailed policy and procedures will be required within councils to ensure the successful implementation of these new and amended provisions.

Part 7 Statutory Nuisance

Clause 60 Statutory nuisances

The Council welcomes the extended list of statutory nuisances to include artificial light and insect pests.

Clause 62 Summary proceedings for statutory nuisances

62 (1)

The Council welcomes the new power contained in 62(1) to serve an abatement notice in anticipation of a statutory nuisance occurring. This will help improve the quality of life and the environment for local residents as action can be taken before a nuisance situation arises.

62 (10)

Banbridge District Council is most concerned that the power of the court to make an order following conviction requiring the nuisance to be abated has not been included in the Clause 62 of CNE Bill. This provision currently exists in Section 112 of the Public Health Ireland Act and is proposed to be repealed. We view this as a retrograde step. The introduction of new legislation should always, in our opinion, add to or improve the existing situation; and in the case of enforcement tools or penalties, enhance and strengthen what is already available. Whilst we accept that on summary conviction the level of fine has been raised to Level 5 and there is ‘daily penalty’ of one tenth of that level for each day the offence continues, Council still believes that given the often low level of fines imposed by the Magistrates court, the imposition of a court order to carry out work or to abate a nuisance or prevent it recurring, is a much more powerful deterrent.

This Council has had experience of associated legislation relating to housing matters, where legislation that contained the option of the court to make an order requiring the notice to be complied with or work to be done was repealed. The ‘new’ legislation does not have the Order provision and it has been our experience that this can result in unsatisfactory situations persisting for an individual if the offender chooses to bear the often insignificant fines imposed, even on a recurring basis for the same offence.

62(2)(b) Definition of ‘owner’

In order to ensure effective enforcement of the abatement notice provision, Council would ask that, similar to the present position in the Public Health Ireland Act 1878, the definition of owner means ‘the person for the time being receiving the rackrent of the lands or premises…whether on his own account or as an agent or trustee for any other person, or who would so receive the same if such lands or premises were let at a rackrent’

In dealing with nuisance conditions in rented accommodation, it is not always possible to determine the owner of the property or they may reside outside the jurisdiction. In these or similar cases, it is important to be able to serve notice on an agent so that the nuisance might be abated.

Council would ask that the definition of owner above will be covered by the proposed Bill.

Additional Comment: Fixed Penalty Notices

Banbridge District Council supports the use of fixed penalty notices as an appropriate and efficient enforcement tool and we would encourage the committee to review the Bill to ensure that this option has been included as far as possible. We accept the comments of the Department in its consultation response document and note that it views the inclusion of the option, where not already provided for, as not possible within the legislative timetable. We would however request that in future reviews or secondary legislation, the option of using fixed penalty notices is actively considered and provided for where appropriate.

Belfast City Council Submission to the Clean Neighbourhoods and Environment Bill

Our Ref: 402-002201-2-NL

Your Ref:

13th August 2010

By email – doecommittee@niassembly.gov.uk

The Committee Clerk – Committee for the Environment
Room 247
Ballymiscaw
Parliament Buildings
Stormont
Belfast
BT4 3XX

Dear Sirs,

Re: Clean Neighbourhoods and Environment Bill

Further to the Call for Evidence advertised in the Belfast Telegraph on 8th July 2010, Belfast City Council welcomes the opportunity to submit written evidence for consideration at the Committee Stage of the Clean Neighbourhoods and Environment Bill.

A detailed response has already been provided to the Department in relation to the proposed Bill and a copy of that response is attached. However, there are some issues which the Council believe have not been sufficiently addressed in the Department’s consultation response, or alternatively were not raised at the consultation stage, which it now wishes to bring to the attention of the Committee.

Part 4 – Graffiti and other defacement

The Council welcomes the Department’s acknowledgement that district councils need to have sufficient power to take enforcement action against both the perpetrators and beneficiaries of fly-posting and that the provisions of the Bill as drafted did not provide those powers. Officers from the Council have met with the Department and have proposed certain provisions which would enable district Councils to take effective action against this blight.

The Council also welcomes the Department’s decision to remove Clause 38 and instead retain Article 18 of the Local Government (Miscellaneous Provisions) Order 1985 (herein after referred to as ‘the 1985 Order’).

The Council would however recommend some amendments to Article 18 of the 1985 Order which, if implemented, will assist district councils in taking enforcement action and will also bring their powers into line with both the Planning Service and local authorities in England and Wales.

Article 18 provides that where the Council detect fly posting, it may serve a notice upon the responsible person requiring them to remove or obliterate same within 14 days. If the responsible person fails to comply with the Notice, then the Council may remove or obliterate the fly posting and recover the expenses in so doing as a civil debt.

Belfast City Council has difficulties with both the definition of ‘responsible person’ and the time period prescribed within Article 18 of the 1985 Order.

The responsible person is defined in Section 18(10) as being:

(a) in relation to any graffiti, placard or poster, if it is displayed on land of which he is the owner or occupier; and

(b) in relation to any placard or poster, if it gives publicity to his goods, trade, business or other concerns.

Belfast City Council is of the view that this provision as drafted must have been the result of a typographical error as technically it does not allow district councils to recover expenses against a person who benefits from the fly posting unless the said fly posting is displayed on their own land.

The Council would therefore request that the Department replace the ‘and’ in the above clause with an ‘or’. In so doing, district council powers will mirror those of the Planning Service, which are contained within the Article 84 of the Planning (NI) Order 1991 and the Planning (Control of Advertisement) Regulations 1992, and of local authorities in England and Wales.

In relation to the prescribed time period under Article 18, when a notice has been served upon a responsible person, that person has 14 days within which to remove or obliterate the fly posting. However, in England and Wales the responsible person is only permitted 2 days to remove the offending material.

A 2 day default period will undoubtedly lead to swifter action, either by the responsible person or by the Council in default and the Council therefore request that the Department consider amending the prescribed time period, which would also bring the provision into line with that in England and Wales.

Part 7 – Statutory Nuisances

The Council note the Department has indicated that the normal dictionary definition of owner will apply to all provisions regarding statutory nuisance bar that in relation to recovering expenses where work is carried out in default.

This can only be viewed as a retrograde step as it significantly diminishes the current powers of district councils as contained within the Public Health (Ireland) Acts. Under that legislation, the owner of the property is defined as being the owner or the person who receives the rack rent of the property, i.e., the agent responsible for the property.

The definition under the Public Health (Ireland) Act takes on a much greater significance in the private rented sector. The Department have previously recognised the value of this definition whilst drafting the Private Tenancies (NI) Order 2006, which is the principal legislation regulating the private rented sector in Northern Ireland, to the extent that it was included in the definition of an owner.

The Council serves a large proportion of Public Health Notices upon rental agents for a number of reasons. For example, owners can often reside outside the jurisdiction, cannot be easily identified or the situation may be urgent and the owner is not readily contactable.

Belfast City Council also understand that local authorities in England and Wales rarely use statutory nuisance legislation to deal with issues in privately rented accommodation as they have a more comprehensive legislative framework available to deal with disrepair. Therefore, there was no requirement to ensure the definition of owner included rental agents in the Environmental Protection Act as there are other legislative provisions in England and Wales, which are not at the disposal of district councils in Northern Ireland, to deal with statutory nuisance.

Given that the current proposal would see a weakening of district council powers to effectively deal with public health nuisance, Belfast City Council would urge the Department to reconsider the definition of owner under the proposed nuisance provisions.

Part 6 - Noise

The Council would also advise the Committee that since our original response, the Minister has signed the Permitted Level of Noise (Northern Ireland) Direction 2010 to support the application of the Noise Act 1996. Belfast is the only Council in Northern Ireland which has adopted the provisions of the Noise Act 1996 and provides a night time noise service. The Direction amends the current noise measurement standard and could have implications regarding the extension of the Noise Act to licensed premises. The Council therefore request that the Department give consideration to this matter.

This letter and the attached consultation response contain the Council’s written submission to the Committee. Council officers are of course prepared to present evidence orally should the Committee require them to do so.

Yours faithfully,

Nora Largey
Solicitor
Enc.

Children’s Law Centre (CLC) Submission to the Clean Neighbourhoods and Environment Bill

Children’s Law Centre
3rd Floor
Philip House
123-137 York Street
Belfast
BT15 1AB

Tel: 028 90 245704 
Fax: 028 90 245679

Website: www.childrenslawcentre.org

Correspondence address (Paddy Kelly, Director CLC) paddykelly@childrenslawcentre.org

Introduction

The Children’s Law Centre is an independent charitable organisation established in September 1997 which works towards a society where all children can participate, are valued, have their rights respected and guaranteed without discrimination and every child can achieve their full potential.

We offer training and research on children’s rights, we make submissions on law, policy and practice affecting children and young people and we run an advice/ information/ representation service. We have a dedicated free phone advice line for children and young people and their parents called CHALKY and a youth advisory group called Youth@clc.

Our organisation is founded on the principles enshrined in The United Nations Convention on the Rights of the Child, in particular:

• Children shall not be discriminated against and shall have equal access to protection.
• All decisions taken which affect children’s lives should be taken in the child’s best interests.
• Children have the right to have their voices heard in all matters concerning them.

From its perspective as an organisation, which works with and on behalf of children, both directly and indirectly, the Children’s Law Centre is grateful for the opportunity to make these comments on the Draft Clean Neighbourhoods and Environment Bill.

Endorsement of the response made by Children in Northern Ireland (CiNI) to the Draft Bill

The Children’s Law Centre fully endorses the response made by Children in Northern Ireland (CiNI) to the Draft Clean Neighbourhoods and Environment Bill. We share CiNI’s concerns about the potential of some clauses to increase the criminalisation and penalisation of children.

Substantive Comments

Context

The United Nations Convention on the Rights of the Child (CRC) protects children’s rights to play (Article 31) and to experience a clean and safe environment (Article 24). Research on children’s lives in Northern Ireland has demonstrated that these rights are often breached, especially for children living in areas characterised by high levels of poverty (see for example, Kilkelly et al 2004, McAlister et al 2009). Research by Save the Children (2007) found that children living in areas affected by poverty were more likely to experience environmental problems including rubbish and vandalism. The Draft Bill is therefore directly relevant to children and they and their families have a vested interest in improving the local environment. Creative, inclusive and participatory strategies should be developed to improve environmental safety and a clean and healthy environment. Unfortunately some of the specific clauses of the Draft Bill risk damaging and criminalising the most marginalised children rather than involving them in productive social change.

As we have cautioned in previous responses to Government, it is worrying that this draft legislation appears to have been largely lifted from the England and Wales legislation without due consideration of whether such an approach is the most appropriate in the circumstances of Northern Ireland. CLC believes that we need local solutions to local problems: solutions which involve children and young people rather than excluding them.

In its Concluding Observations on the United Kingdom (2008: para 26) the Committee on the Rights of the Child noted its ‘regret’ that ‘the principle of the best interests of the child is still not reflected as a primary consideration in all legislative and policy matters affecting children’. The Draft Clean Neighbourhoods and Environment Bill will impact on children (and presumably intends to make an impact) and should include reference to the best interests of the child.

The Committee on the Rights of the Child (2008: para 34) also noted its concerns about increasing restrictions on children’s freedom of movement and peaceful assembly for example through the use of ASBOs and mosquito devices. Unfortunately, the Draft Bill risks further restricting children’s right to movement especially through the powers associated with Gating Orders. A further observation of the Committee (para 68) was that the ‘steady reduction’ in playgrounds had resulted in children being ‘pushed’ into public open spaces, their congregating there then viewed as ‘anti-social’ behaviour.

Fixed Penalty Notices (FPNs)

Inspiration for the Draft Bill comes from England and Wales and the Clean Neighbourhoods and Environment Act 2005. This legislation increased the number of ‘environmental’ offences which could result in Fixed Penalty Notices (FPN). Guidance was published by the Department for the Environment, Food and Rural Affairs (DEFRA) which includes commentary on the issuing of notices to children aged as young as 10. In the Guidance DEFRA (2007: 59) notes that ‘whilst issuing fixed penalty notices to those aged 18 and over is in most peoples’ minds uncontroversial, the same could not be said when it comes to issuing to those aged under 18’. DEFRA then notes by way of example that some magistrates will not want to ‘give a criminal record to a young person for dropping a sweet wrapper’. A further example is given of a ‘young person aged over 10’ dropping a crisp packet while ‘walking through a park’. The Guidance reminds the reader that this is an offence regardless of whether the child was aware of the law or not. Most children know that dropping litter is wrong or ‘naughty’, having been taught this by parents and teachers. How many know that it is actually an offence? Giving a child a ‘warning’ prior to issuing a FPN does not constitute diversion as required by international children’s rights standards (Beijing Rules). Undoubtedly litter is a social problem affecting adults and children but it is of concern that children may face substantial fines and referral to the youth justice services for minor littering.

The Children’s Law Centre is opposed in principle to the use of Fixed Penalty Notices for children as these cannot be considered to be in the ‘best interests’ of the child. Further, the impact of a £75 fine will have a disproportionate impact on children, many of whom do not have access to this amount of money and have no way of earning it. The likely consequence of the imposition of FPNs on children is tension and financial strain within families. We are particularly concerned at the proposal that failure to provide an accurate name and address may lead to a £1,000 fine. Some children may be anxious when apprehended for an offence and tempted to hide their real identities for fear of being in trouble at home, with no real understanding of the full consequences of their actions. Article 6 (European Convention on Human Rights) protecting the right to a Fair Trial is also engaged here. The DEFRA guidance explains that where offending is ‘clear cut’ and formal interviews ‘not required’ FPNs may be issued. Differential power relationships make it difficult for some young children to challenge authority figures, especially those in uniform, and it is of concern that some children may be wrongfully accused and issued with notices, unable to assert their innocence.

Part 1 Gating Orders

The proposed use of Gating Orders, which will allow the erection of a physical barrier to restrict access to public ‘rights of way’, is another issue with clear relevance to children. Again, we recognise that problems exist in some areas caused by behaviour by adults and young people which can be threatening to local residents, including older people. The proposal for the use of Gating Orders however has some practical difficulties, particularly the danger of simply shifting ‘anti-social behaviour’ from one area to another. This may initially relieve the situation for those living in areas experiencing problems, but the strategy also presents particular dangers for children who as a result of the closure of alleyways may be moved further from their homes and from any form of adult supervision. Equality Impact Assessments carried out in England, on the use of Gating Orders note the differential and negative impact on certain age groups including children, parents with young children, older people and disabled people (see for example the EQIA conducted by Nottinghamshire County Council). Those who are socially excluded are particular affected by Gating as they are less likely to be able to afford cars and may have to walk longer distances as a result. Disabled people may also be adversely impacted upon. Bearing these factors in mind, it is crucial that the Draft Bill is ‘screened in’ and a full EQIA conducted.

Part 4 Graffiti and Other Defacement

CLC recognises that graffiti can be damaging to local areas, particularly where it is sectarian, sexist, racist, homophobic or abusive in any way. It is particularly disturbing to see such offensive graffiti in play-parks used by young children. Kilkelly et al (2004) found that children did not like having to play in areas which they considered ruined by litter and graffiti. Some drew pictures for the researchers to illustrate their negative feelings towards this phenomenon. Our concern here is regarding the use of penalty notices of £75 and the potential imposition of a £1,000 fine where false information is given. For the reasons discussed above, FPNs are not an appropriate response to children’s behaviour.

Community Safety in Northern Ireland

The issues raised in the Draft Clean Neighbourhoods and Environment Bill overlap in key respects with elements of the NIO’s draft Community Safety Strategy. In our response to the NIO we recommended that Government hold back from further development of the draft Community Safety Strategy as the devolution of policing and criminal justice would offer our locally elected political representatives the opportunity to identify and agree their own community safety priorities. We proposed the development of a ‘fit for purpose’ Northern Ireland focused strategy, rather than the importation of a strategy developed for an English context and ‘one which is increasingly falling into disrepute’. We noted that a number of Government Departments in Northern Ireland had been working on the development of some excellent strategies, the ethos and content of which were wholly inconsistent with the proposed provisions contained in the draft Community Safety Strategy.

Following devolution of policing and justice, responsibility for the development of a regional strategy on community safety lies with the Department of Justice. We advocate that this should be developed through a process of inclusive consultation, including meaningful consultation with children as a particularly affected group. Given the overlap, we suggest that many of the issues raised in the Draft Clean Neighbourhoods and Environment Bill should be dealt with through this process. The introduction of the Bill should therefore be delayed.

EQIA

We are aware that an Equality Impact Screening exercise has been conducted in relation to the Draft Bill and are extremely surprised that the result of this was to ‘screen out’ the Bill as not having an impact on equality of opportunity for any of the section 75 categories. It is clear from CiNI’s response, and from our analysis above, that some powers contained within the Draft Bill will impact disproportionately, and potentially negatively, on children and young people (and will have implications for other groups besides). ‘No’ was the answer given to the question ‘is there any evidence indication or evidence that any of the section 75 categories have different needs, experiences, issues and priorities in relation to this policy issue?’ Yet research demonstrates that children have different needs and experiences of using public space (Kilkelly et al 2004, McAlister et al 2009). We urge the Department to review this Equality Impact Screening exercise, taking into account the findings of relevant Northern Ireland-based research and also considering research on the operation of the E&W legislation and how this has impacted on children.

We note that very few child-focused organisations were listed among consultees to the legislation. This situation should be remedied by extending the consultation time and specifically consulting with the children’s sector.

The Children’s Law Centre is committed to the effective operation of section 75 of the Northern Ireland Act 1998 and we are keenly aware of the statutory obligation inherent in section 75 to consult directly with those who are likely to be affected by a policy, whether or not they have a personal interest. Contrary to the conclusion of the Equality Impact Screening exercise it is very apparent that children and young people are one of the groups who will be most directly impacted upon by the introduction of the draft Clean Neighbourhoods and Environment Bill. All designated public bodies are under an obligation to ensure that child-accessible documentation is available in order to facilitate consultation with children and young people.

In addition, the Equality Commission’s Guidance for consulting with children and young people, “Let’s Talk, Let’s Listen" (June 2008: para 2.26) states that,

“Section 75 of the Northern Ireland Act 1998 (and the guidance that comes with it), which gives you directions on how to carry out your duties. Children and young people have particular needs concerning information and to take part in consultation and decision-making processes, especially on issues that affect them.

It is particularly important that you consider which methods are most appropriate for consulting children and young people. You should also make sure that you provide information which is clear, easy to understand and in an appropriate format, to make sure there are no problems preventing you from consulting children and young people."

This Guidance also reiterates the obligations on designated public bodies detailed in the “Guidance for Implementing Section 75 of the Northern Ireland Act 1998" to ensure that direct consultation is carried out with those who are directly affected by a policy. It states that,

“Section 4 (2) (c) of the Guide lists the ‘Guiding Principles on Consultation’. These principles say that good consultation depends on:

• engaging with and involving the Section 75 groups; and
• the policy or issue being understood by, and appearing to directly affect, the people being consulted" (para 3.8 page 20).

The Equality Commission’s Guidance for Implementing Section 75 of the Northern Ireland Act 1998 states that,

“1.4 The new statutory duties make equality central to the whole range of public policy decision-making. This approach is often referred to as “mainstreaming". The Council of Europe has defined mainstreaming as:

“the (re)organisation, improvement, development and evaluation of policy processes, so that a[n] … equality perspective is incorporated in all policies at all levels and at all stages, by the actors normally involved in policy-making". (Gender mainstreaming conceptual framework, methodology and presentation of good practices. Council of Europe, Strasbourg May 1998)

It is clear from this that the intention of section 75 is to mainstream equality, making it central to policy decision making. In order for an equality perspective to be central to policy making, it needs to be incorporated in all policies at all levels and stages. This would unequivocally involve incorporation of the principles of equality of opportunity from the beginning of the process and throughout the development and implementation of the policy.

We note that the Equality Commission and Human Rights Commission were scheduled to receive copies of the consultation document and will be interested to learn what comments these bodies have made on the equality and human rights implications of the Draft Bill.

Conclusions

The Children’s Law Centre is grateful for the opportunity of commenting on the draft Clean Neighbourhoods and Environment Bill. We look forward to seeing an analysis of responses and hope that the equality issues will be revisited.

In summary, our key concerns regarding the draft Bill and associated processes are:

• the failure to recognise through Equality Impact Screening the potential for adverse impact on children
• the incompatibility with children’s rights of sections of the Bill, notably in relation to Fixed Penalty Notices and Gating Orders
• the potential to punish and further marginalise children living in areas of high levels of deprivation
• the need to develop local strategies for local issues rather than ‘read-across’ from England

References

Kilkelly, U. et al. (2004) Children’s Rights in Northern Ireland. Belfast: NICCY.

McAlister, S., Scraton, P. and Haydon, D. (2009) Childhood in Transition: experiencing marginalisation and conflict in Northern Ireland. Belfast: QUB.

Children in Northern Ireland (CiNI) Submission to the Clean Neighbourhoods and Environment Bill

August 2010

Introduction

Children in Northern Ireland (CiNI) is the regional umbrella body for the children’s sector in Northern Ireland. CiNI represents the interests of its 140 member organisations, providing policy, information, training, participation and advocacy support services to members in their direct work with and for children and young people. CiNI’s membership is open to colleagues in the children’s statutory sector recognising that the best outcomes for children are increasingly achieved working in partnership with all those who are committed to improving the lives of children and young people in Northern Ireland. CiNI hosts the Participation Network, an initiative supported by OFMDFM, which offers direct training, consultancy and sign posting services to government departments and statutory agencies to help them develop the knowledge, skills and expertise to engage directly with children and young people when carrying out their functions.

CiNI welcomes this opportunity to submit written evidence to the Committee for the Environment on the Clean Neighbourhoods and Environment Bill. In April 2010 CiNI responded to the Department of Environment’s consultation on proposed Clean Neighbourhoods and Environment legislation. We have appended this earlier response to our written evidence for the consideration of Committee members.

CiNI has considered the Department’s ‘Consultation Summary’ produced in June 2010 where it has responded to some of the issues we raised in our initial response, however there are particular issues which remain outstanding which have not been responded to or dealt with by the Department in drafting the Bill.

CiNI would urge Committee members to give all those responses from children’s sector organisations due regard as it remains our strong view that children and young people will be adversely impacted by this legislation, particularly with regard to the introduction of Fixed Penalty Notices.

Part 1 Gating Orders

In our initial response to the proposals for legislation CiNI raised concerns regarding the introduction of gating orders and the potential adverse impact such orders might have on equality of opportunity for children and young people. It is likely that roads which could be targeted for gating orders in built up areas may be used by children and young people as pedestrians to have convenient, safe and easy access to school, health, play and leisure facilities. We would also highlight that consideration should be given to the needs of those who are disabled. The introduction of Gating Orders may also potentially raise issues in relation to physical access and therefore consideration must also be given to the requirements of Disability Discrimination legislation. CiNI did highlight in our initial response that it is imperative in compliance with the requirements of Section 75 of the Northern Ireland Act 1998 that proper screening and equality impact assessment of the proposed introduction of gating orders is undertaken. It is therefore welcome that the Department of Regional Development agrees, as indicated in the Consultation Summary[1], that Section 75 screening should be carried out in respect of proposed gating orders. We would advocate that in proper compliance with Section 75 this must include direct consultation with children and young people to ensure the potential impact of gating orders on their daily lives is properly considered and understood, and where adverse impact is identified mitigating action is taken.

CiNI would also highlight our concern regarding the grounds upon which a gating order can be made. The District Council must be satisfied that the road/area is affected by or facilitating the commission of criminal offences or anti-social behaviour. CiNI would highlight that we have grave concerns regarding the term anti-social behaviour as defined by the Anti-Social Behaviour (NI) Order 2004. Anti-social behaviour is defined as ‘acting in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself’. CiNI believes that as a concept anti-social behaviour is ill-defined and extremely subjective and for this reason we do not believe it should be used as a factor upon which to base the granting of a gating order.

Fixed Penalty Notices

In relation to the introduction of Fixed Penalty Notices (FPNs) we would refer Committee members to our initial response to the Department’s consultation. CiNI remains entirely opposed to the use of FPNs against children and young people. Given that in respect of graffiti and fly posting these could be levied directly onto the child or young person we have real concerns regarding a child or young person’s ability to pay such a fine given their dependent status. Fines such as these are an onerous burden to place on a child given that they are likely to have limited means to pay. Clearly failure to pay a fine would result in a child or young person being fast tracked into the youth justice system.

Research evidence referred to in our earlier response demonstrates that issues such as litter and graffiti disproportionately impact on areas where the poorest children, young people and their families live. Therefore it is likely that the poorest children will be targeted, and it is these children and young people who will be even less likely to be able to pay such fines and will therefore find their families pushed further into poverty or fast tracked into the youth justice system. The proposed introduction of FPNs is entirely contrary to the Executive’s Programme for Government commitments and PSA targets to end child poverty by 2020, by reducing child poverty by 50% by 2010 and eliminating severe child poverty by 2012.

The use of FPNs against children and young people aged 10 and over raises grave human rights and children rights concerns. CiNI is entirely opposed to the criminalisation of children from age 10 and we are concerned that the introduction of these proposed offences under the draft legislation and the accompanying penalty notices could lead to more children being criminalised as a result of inability to pay the fines.

CiNI is therefore deeply disappointed and concerned that, despite our representations on the matter, the Department has determined that it will continue with its proposals for Fixed Penalty Notices which can be used against children and has committed only to adopting ‘a different approach[2]’ in respect of FPNs against children and young people.

Again we would reiterate our firm opposition to the use of FPNs against children and young people. CiNI believes that the Department must re-examine its strategic approach to the pursuit of clean neighbourhoods and environments. We are concerned and disappointed that in the absence of a proper policy development phase the opportunity has been missed to explore with all stakeholders, including children and young people, the approaches which could promote clean neighbourhoods and environments and prevent recourse to more punitive legislative measures.

CiNI does not underestimate the detrimental impact which issues including graffiti and litter can have on communities, and we believe that these issues should be tackled pro-actively through approaches which engage all members of the community in identifying local solutions. We understand that several District Councils do place an emphasis on preventative and diversionary activity for children and young people where there are issues relating to graffiti/litter etc, these activities focus on reducing incidences of these problems as opposed to dealing with the consequences in the aftermath. We would advocate that these approaches should be explored in more detail and best practice showcased with a view to rolling out the learning across District Council areas, so that learning can be transferred and embedded into policy and practice for all District Councils.

We understand that District Councils are increasingly engaging in and supporting multi-agency responses to planning and commissioning services for all children and young people through the auspices of the HSCB Children’s Services Planning process. Already within this process much work is being taken forward on family support and early intervention, preventative and diversionary activities for children and young people at risk. We would stress that at the heart of this work is a commitment to promoting and supporting delivery of children’s rights as set forth in the United Nations Convention on the Rights of the Child. We welcome and would highlight in particular the funding which the DHSSPS and NIO have invested in early intervention services for 8-13 year old children vulnerable to offending which, through joint initiatives, is delivering improved outcomes for these children.

Focus on Early Intervention

CiNI is extremely encouraged by the positive response of the Department of Justice to concerns expressed by the children’s sector and wider NGO sector regarding the overwhelmingly punitive approach which was being proposed in relation to community safety issues and the negative focus on young people and families. The Department of Justice in its Pre-Consultation on the Development of a Future Community Safety Strategy[3] has listened to the views of respondents and noted views that ‘the emphasis on young people in the initial consultation was too negative, and some of the proposed initiatives were punitive, such as Parenting Orders, Support Order and Dispersal Zones’.

CiNI would commend the Minister for Justice for his careful consideration of the concerns. It is extremely welcome, as indicated in the pre-consultation, that the Minister ‘does not intend to include such provisions as proposals for a new Strategy, unless there are compelling arguments for their inclusion during the consultation.[4]’

Of particular significance is the decision of the Minister for Justice to revise the key themes for the Community Safety Strategy and, taking into account feedback received, the Minister has now identified early interventions as a key theme, to focus on addressing the risk factors that lead to offending and anti-social behaviour.

Beyond the Department of Justice, we would highlight that across the Executive, the overwhelming policy focus is on early intervention, prevention and diversionary responses for vulnerable children, young people and families. This is evidenced in the Cross Government 10 Year Strategy for Children and Young People[5], which provides the outcomes framework to which all Government Department’s must align policy development that impacts on children and young people. The 10 Year Strategy highlights the imperative on Government to shift to preventative and early intervention practice in support of a whole-child approach. This has been positively embraced particularly by those Government Departments with lead responsibility for children and young people, and is evidenced in the overall approach to families and parents presented in Families Matter[6] the Regional Family and Parenting Strategy for Northern Ireland.

Therefore, CiNI would highlight that the Department of the Environment, in continuing to pursue the introduction of Fixed Penalty Notices against children and young people, is acting entirely contrary to many of the evidence-informed strategic policy responses for children and young people operating across Government, which are contributing to measurable improvements in the pursuit of positive outcomes for children and young people. CiNI would urge Committee members to direct the Department to re-examine its approach and set aside the punitive legislative proposals in favour of those evidence-informed early intervention and preventative initiatives targeting vulnerable children and young people which have a proven track record of delivering positive outcomes for children and young people.

Equality Impact Assessment

CiNI notes that the Bill’s Explanatory and Financial Memorandum commenting on equality impact assessment, indicates the ‘the Bill is believed to be consistent with equality of opportunity’. CiNI would contest this view and while we appreciate the overall aim of the Bill to improve the quality of life for all of the people of Northern Ireland appears positive in terms of promoting equality of opportunity, our concern remains that particular aspects of the legislation which aim to improve the quality of life for people are in fact likely to have significant, albeit unintentional, adverse impact on the promotion of equality of opportunity for children and young people. Contrary to the approach taken by the Department of the Environment to their statutory equality obligations, it is extremely welcome that the Department of Regional Development does agree that equality impact assessment regarding proposed gating orders should be undertaken. We are dismayed and disappointed by the lack of a consistent approach across the Executive to positive engagement with the statutory obligation to promote equality of opportunity which is a central component of the Agreement which secured devolved Government for Northern Ireland in 1998.

CiNI would highlight to Committee Members that in our initial response to the proposals for legislation we raised significant concerns regarding the Department of the Environment’s failure to properly engage and comply with its obligations to promote equality of opportunity under Section 75 of the Northern Ireland Act 1998. We raised concerns that the Department was acting in breach of its own Equality Scheme and these concerns remain.

The results of the section 75 screening exercise were not included in the Department’s public consultation on the policy proposals. As we indicated in our initial response at the close of consultation on 23rd April 2010 the full screening paper was not available to download from the DOE website. Therefore we did not have an opportunity to comment on the full screening paper. Having subsequently received and considered the full screening paper we are concerned and disappointed with the approach to Section 75 compliance which has been adopted by the Department. CiNI entirely disagrees with the decision to screen out the policy for equality impact assessment.

At 2.5 of the screening paper the Department has indicated that no current data is available to facilitate the screening of the legislation, stating that ‘on careful analysis of the legislative proposals, there is nothing to suggest that they should impact adversely on any of the section 75 groups’. As we indicated in our earlier response in respect of children and young people there does exist a strong evidence base relating to their needs, experiences, issues and priorities in respect of their neighbourhoods and environments. We highlighted some of this research to the Department is our initial response to the consultation (see below), and we would again advocate that the Department undertake a comprehensive trawl of research sources to inform a robust screening exercise.

The screening paper at 3.2 appears to suggest that consultations with representative organisations or individuals of the section 75 categories did not indicate that the legislative proposals created problems specific to them. However, we are unaware of any specific consultation with children and young people and/or those who represent them to consider the potential impact the proposed legislation might have on them. In this regard we would encourage Committee members to engage directly with children and young people to hear from them of the potential impact of the legislation.

Again contrary to the position presented at 3.4 of the equality screening paper we believe there is an opportunity to better promote equality of opportunity by adopting an approach which focuses on partnership across government, statutory agencies and the voluntary and community sector to identify innovative, early intervention, preventative and diversionary responses and activity for children and young people that addresses the challenges for neighbourhoods and supports delivery of the outcomes framework of the 10 year Children and Young People’s Strategy that all Departments have signed up to and have committed to delivering on.

CiNI would strongly advocate that Committee members, as part of Committee consideration of the Bill, seek a full Equality Impact Assessment of the Bill proposals.

Engagement and Consultation with Children and Young People

CiNI is disappointed that the Department, in its analysis of responses to the consultation, has not acknowledged and responded to our concerns regarding the lack of direct engagement with children and young people on the development of these legislative proposals.

We would again highlight that the DOE is statutorily obliged under Section 75 of the Northern Ireland Act 1998 to engage directly with children and young people to promote equality of opportunity when carrying out its functions including the development of public policy which will impact directly on children, young people and their families. In addition to the requirement placed on the Department to consult directly with children and young people as members of the section 75 age category we would highlight the Department’s obligations in relation to the UNCRC. Government in Northern Ireland has signed up to the UNCRC and in doing so committed to actively taking forward delivery of its provisions for all children and young people. The UNCRC places specific obligations on Government in relation to seeking and responding to the views of children and young people when developing public policy. Article 12 of the UNCRC requires State Parties to assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

CiNI would highlight that support is available to DOE and indeed to Committee members to help ensure effective consultation with children and young people. CiNI hosts the Participation Network[7], which is an OFMDFM supported initiative, set up to provide training, signposting and consultancy support to public bodies, such as DOE, to help in fulfilling section 75 obligations to consult with children and young people. We understand that the DOE’s Road Safety Division has engaged with the Participation Network with regard to the development of its new draft Road Safety Strategy. The Committee may be interested in hearing directly from the officials leading on the development of the Road Safety Strategy of their experience of involving children and young people and the benefits this has brought to the policy development process. CiNI would advocate that this example of positive practice in engaging children and young people pioneered by one particular area of the Department should be embedded as part of the policy development process for all divisions/business areas within the DOE.

Conclusion

CiNI trusts that our written evidence can usefully inform Committee discussion and deliberation on the development of legislation to promote clean neighbourhoods and environments. We trust that Committee members will give due consideration to the serious concerns we have raised and look to endorse an approach which promotes and supports early intervention and prevention as the most efficient and effective response to achieving the aim of working in partnership with communities to create vibrant communities which provide clean, safe spaces that are shared and valued by all citizens.

Cini Response to DOE Consultation on Clean Neighbourhoods And Environments – April 2010

Children in Northern Ireland (CiNI) is the regional umbrella body for the children’s sector in Northern Ireland. CiNI represents the interests of its approximately 140 member organisations, providing policy, information, training, participation and advocacy support services to members in their direct work with and for children and young people. CiNI’s membership is open to colleagues in the children’s statutory sector recognising that the best outcomes for children are increasingly achieved working in partnership with all those who are committed to improving the lives of children and young people in Northern Ireland. CiNI hosts the Participation Network, an initiative supported by OFMDFM, which offers direct training, consultancy and sign posting services to government departments and statutory agencies to help them develop the knowledge, skills and expertise to engage directly with children and young people when carrying out their functions.

General Comments

The state of our neighbourhoods and general environment are issues of crucial importance for children and young people in Northern Ireland. Clean neighbourhoods and environments are highly valued by children and young people as it is in these areas that children spend much of their free time playing and meeting friends. The local neighbourhoods and environments where children grow up have major impact on childhood experiences and can impact on a child and young person’s general health and well-being, and are also important in promoting positive community identity and a sense of pride and belonging for children and young people.

Children and young people are consistently vocal on issues relating to their neighbourhoods and environments and are keen to share their views on what they identify as being problems within their areas, while also offering solutions to addressing these problems.

Unfortunately living in a clean neighbourhood and pleasant environment is not the lived experience of all children and young people in Northern Ireland. For children living in areas where levels of poverty are high it is more likely that their will be significant environmental problems in these areas.

Northern Ireland has high levels of child poverty with 10% (44,000) of children living in severe poverty (children who were poor on 3 measures – low level of household income, child deprivation and parental deprivation)[8] and 21% of children living in persistent child poverty (being poor 3 years in a 4 year period) which is more than double the GB rate of persistent child poverty[9].

Save the Children research on severe child poverty revealed that one in ten severely poor children live in an area viewed by their parents as a bad place to live in, compared to one in sixteen non-severely poor children and one in one hundred non-poor children. Amongst the issues reported as ‘major problems’ were rubbish and litter; dog mess; vandalism and graffiti.

Children and young people also consistently raise issues in relation to a lack of places to go and things to do in their local areas. Recently it has been raised by children and young people who participated in the NI Commissioner for Children and Young People’s Review of Children’s Rights in Northern Ireland. Notably as part of the review children commented on the places where they currently spend time. The review noted that these places were deemed to be far from ideal in terms of safety and security. Children and young people had a lot to say about the poor state of their parks and other public spaces. Issues raised included broken and poorly maintained equipment, broken glass and rubbish lying around, vandalism, dog dirt and a lack of public conveniences[10].

The review highlights that councils need to fulfil their duty, not only to provide adequate space for play, but to maintain it and ensure that it is a safe and clean place for children and young people[11].

Recent research undertaken by QUB, The Prince’s Trust and Save the Children NI[12] with 196 children and young people from across 6 communities significantly affected by the conflict revealed that the main issues for these children and young people in relation to their communities were in order of priority, the nature of play/leisure facilities; street fighting/violence; alcohol; and the general state of the area. The general environment or state of the neighbourhood was raised by children in discussions about litter and rubbish on the streets, graffiti, dog fouling and the consequent smell. They were concerned that the general appearance of their communities was drab and unkempt. Children had recommendations to make and focused on reconstruction, maintenance and the security of parks, young people desired more facilities, improved choice and diversity[13].

CiNI would strongly advocate that the DOENI respond to and engage children and young people as primary stakeholders with an active contribution to make in promoting their neighbourhoods and environments. We do believe that action is required to improve the environments where the poorest children live. However, these actions must be developed through consultation and engagement with children, young people, their families and communities so solutions can be arrived at which communities feel ownership of and can deliver on collectively, in a way that respects and values the contribution of all members of whatever age.

Specific Comments on Clauses of the Bill

Fixed Penalty Notices (FPNs)

CiNI notes that the Bill proposes the introduction of Fixed Penalty Notices (FPNs). While it is not explicitly stated within any of the consultation documentation at what age a Fixed Penalty Notice can be applied, it is clear that in the case of penalty notices for graffiti and fly posting these will apply to children and young people aged under 16 and can be levied directly onto children and young people (see below re Part 4). CiNI also notes that failure to supply a name and address or to give false or inaccurate information would be an offence and could lead to a fine of up to £1000.

We do note that under the Clean Neighbourhoods and Environments Act 2005 which applies in England and Wales, FPNs can be issued to anyone over the age of 10, that is, the current age at which a child is deemed to be capable of being criminally responsible. Different procedures are in place for 10-15 year olds and 16 and 17 year olds. The only caveat placed on the issuing of these notices is set out in guidance issued by DEFRA to local authorities which states that they must act in accordance with their obligations under the Children Act 2004, to discharge their functions with regard to the need to safeguard and uphold the welfare of children[14]. In England and Wales parents and legal guardians are not responsible for paying penalties issued to children and young people.

CiNI is entirely opposed to the use of FPNs against children and young people. Given that in respect of graffiti and fly posting these could be levied directly onto the child and young person we have real concerns regarding a child or young person’s ability to pay such a fine given their dependent status. Fines such as these are an onerous burden to place on a child given that they are likely to have limited means to pay these. Clearly failure to pay a fine would result in a child or young person being fast tracked into the youth justice system.

As noted by the research evidence referred to above issues such as litter and graffiti disproportionately impact on areas where the poorest children, young people and their families live. Therefore it is likely that the poorest children will be targeted, and it is these children and young people who will be even less likely to be able to pay such fines and will therefore find themselves pushed further into poverty or fast tracked into the youth justice system. The proposed introduction of FPNs is entirely contrary to the Executive’s commitment made in its Programme for Government and PSA targets to end child poverty by 2020, by reducing child poverty by 50% by 2010 and eliminating severe child poverty by 2012.

The use of FPNs against children and young people aged 10 and over raises grave human rights and children rights concerns. CiNI is entirely opposed to the criminalisation of children from age 10 and we are concerned that the introduction of these proposed offences under the draft legislation and the accompanying penalty notices could lead to more children being criminalised as a result of inability to pay the fines.

Despite much international scrutiny and commentary the age of criminal responsibility remains set at 10 years in Northern Ireland, below that age a child is irrebuttably presumed to be incapable of offending behaviour. In comparison to many countries across Europe, and indeed throughout the world, 10 years is considered extremely low for a child to be held responsible for criminal behaviour, noting that it is significantly lower than the age at which children can legally assume other responsibilities, such as being able to marry or to vote.

The UN Committee on the Rights of the Child has been consistent in its monitoring of the UK Government on the issue of the age of criminal responsibility. In 2002 the Committee observed that the age at which children enter the justice system was low and recommended that Government “considerably raise the minimum age for criminal responsibility"[15]. Given the Government’s failure to respond, the UN Committee again reiterated its recommendation in 2008, pointing also to detailed commentary provided in its General Comment No.10 on Children’s Rights in Juvenile Justice, which, in considering the UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules), concluded that:

“… a minimum age of criminal responsibility below the age of 12 years is considered by the Committee not to be internationally acceptable … State parties are encouraged to increase their lower minimum age of criminal responsibility to the age of 12 years as the absolute minimum age and to continue to increase it to a higher level … A higher minimum age of criminal responsibility, for instance 14 or 16 years of age, contributes to a juvenile justice system which, in accordance with 40 (3) (b) of the UNCRC, deals with children in conflict with the law without resorting to judicial proceedings, provided that the child’s human rights and legal safeguards are fully respected."[16]

The use of FPNs against children and young people raises questions in relation to article 6 of the European Convention on Human Rights the right to a fair and public hearing. This is also supported by the United Nations Convention on the Rights of the Child (UNCRC) to which Government here is a signatory and therefore compelled to implement. Article 40 of the UNCRC requires every child under 18 who has been alleged as, accused of or recognised as having infringed the penal law to be afforded the following minimum rights:

(i) To be presumed innocent until proven guilty according to law

(ii) To be informed promptly and directly of the charges against him or her, and, if appropriate through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence

(iii) To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance, and, unless it is considered not to be in the best interests of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians

(iv) Not to be compelled to give testimony or to confess guilt; to examine or have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality

(v) If considered to have infringed the penal law, to have this decision and any measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law

(vi) To have the free assistance of an interpreter if the child cannot understand or speak the language used

(vi) To have his or her privacy fully respected at all stages of the proceedings

State parties are required under Article 40 to seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognised as having infringed the penal law.

CiNI would highlight that the process by which such notices are given would not comply with these obligations.

Part 1 Gating Orders

CiNI notes that Part 1 of the draft Bill proposes the introduction of Gating Orders which it is stated will predominantly be used to address crime and anti-social behaviour in built-up areas. Gating orders will allow the erection of a physical barrier to restrict public access to a road over which the public would normally have a right of passage.

Again CiNI would highlight that it is imperative in compliance with the requirements of section 75 that proper screening and equality impact assessment of the proposed introduction of gating orders is undertaken. We would highlight that children and young people potentially will experience significant adverse impact from the introduction of such orders. It is likely that these roads in built up areas may be used by children and young people as pedestrians to have convenient, safe and easy access to school, play and leisure facilities. We would also highlight that consideration should be given to the needs of those who are disabled. The introduction of Gating Orders may also potentially raise issues in relation to physical access and therefore consideration must also be given to the requirements of Disability Discrimination legislation.

Part 4 Graffiti and Other Defacement

CiNI recognises the detrimental impact graffiti and other defacement can have on neighbourhoods and the extent to which it can contribute to negative perceptions regarding particular areas. It is an issue which children and young people are keenly aware of and consistently reference in conversations regarding the condition of their local areas. Children and young people do not want their play parks, public spaces and facilities defaced by graffiti.

CiNI notes that Part 3 of the draft Bill proposes to introduce penalty notices for graffiti and fly-posting. It is stated that the intention is to levy the penalties only on the persons actually committing these acts. Offenders will have 14 days in which to pay the penalty (up to a maximum of £75) after which prosecution for the offence may be initiated. A person who is to be subject to the penalty notice will be required to provide their name and address and it will be an offence either to fail to give that information or to give false or inaccurate information. This can lead to the imposition of a level 3 fee (£1000).

CiNI also notes that the sale of aerosol spray paints to persons aged under 16 is to be made an offence and the stated objective in relation to this proposed offence is to reduce the incidence of criminal damage caused by acts of graffiti. Therefore it is clear that the assumption underpinning the creation of this proposed offence is that children aged under 16 are the main perpetrators of graffiti, this is despite the fact that research evidence does clearly highlight that children and young people themselves are concerned about the impact that graffiti has on the condition of their neighbourhoods and communities. It does appear that should the draft legislation proceed in its current format the proposed power to issues penalty notices for graffiti and fly posting would be used in relation to children aged under 16 and the penalty notice would be levied directly on to the child. In the absence of any information to the contrary we also assume that a child under the age of 16 would be required to pay a fee of the same level as an adult would be required to pay.

The draft legislation in a similar manner also proposes to introduce new offences and powers to issue penalty notices in relation to vehicles, litter, dogs and noise.

Community Safety in Northern Ireland

CiNI notes that the issue of so-called environmental crime was addressed as part of the consultation on Community Safety in Northern Ireland which concluded in February 2009. We note that subsequently the NIO has published the Summary of Responses to the Consultation and on the question of environmental crime the views expressed as part of the consultation indicated that while local authorities would welcome powers to tackle graffiti, litter, vandalism, abandoned vehicles, dog mess and fly-tipping “there was agreement [from respondents who expressed views] that the best way to tackle environmental crime and anti-social behaviour was to identify, treat and resolve, the underlying reasons for this behaviour, rather than having to deal with the consequences of the behaviour. It was recognised resolution of this issue could only be achieved by a multi-agency approach which included government, statutory, voluntary and community groups in developing and delivering preventative and diversionary programmes. Respondents suggested true partnership and collective action would only be possible when the duty to co-operate was placed on a statutory basis[17].

It is CiNI’s view that the draft proposals contained within the Clean Neighbourhoods and Environment Bill are not reflective of the agreement flowing from the consultation on Community Safety, which the NIO has articulated in its summary document, given the Bill’s emphasis on dealing with the consequences of behaviour through the imposition of Fixed Penalty Notices, rather than a partnership and multi-agency approach focused on developing and delivering preventative and diversionary programmes.

CiNI notes that the draft Community Safety Strategy has not been progressed and considers that it will now fall to the newly established Department of Justice in partnership with other relevant departments, to determine the way forward on community safety, through engagement in comprehensive consultation with local communities to identify the issues that are relevant and important to local people in Northern Ireland. We therefore firmly believe that given the considerable linkages between community safety and environmental improvement issues and the proposed creation of offences relating to environmental crime and associated FPNs, these must also be actively considered by the Department of Justice and the Assembly’s Justice Committee in the overall context of creating safe communities for all of our citizens.

Equality Impact Assessment

CiNI notes that an equality screening exercise has been undertaken in respect of the proposals and it has subsequently been concluded that the proposals do not impact on equality of opportunity for any of the nine section 75 categories.

We have considered the summary of the screening paper at Annex B. However we note the full screening paper which was to be posted on the DOENI Equality Unit website. At the close of consultation on 23rd April 2010 the full screening paper was not available on the website. A fundamental element of the screening process is consultation with section 75 groups to seek their views on whether all equality impacts have been identified. Therefore we would highlight that the department is in breach of its section 75 obligations by failing to make the full screening paper publicly available as part of the public consultation process on the draft legislation.

We believe that the proposals introducing fixed penalty notices will have a differential and adverse impact on children and young people, where these will be levied directly against children and young people, who will be unable to pay the fines, which could lead to prosecution.

It is particularly important that information relating to the evidence base which has informed the screening exercise is made available. It is our firm view that in respect of children and young people there does exist a strong evidence base relating to their needs, experiences, issues and priorities in respect of their neighbourhoods and environments. While some of this evidence drawn from research has been alluded to above, we would advocate that the Department undertake a comprehensive trawl of research sources to properly inform the screening exercise.

We note that a Partial Regulatory Impact Assessment (RIA) has been undertaken in respect of the draft legislation. As part of the Partial RIA the consultation material does indicate that there has been “limited informal consultation with stakeholders but in the main they [the proposals] are based on experience and developments in England and Wales[18]".

While we do appreciate that experience and developments relating to the implementation and roll-out of legislation in England and Wales can provide useful learning, we would urge great caution in adopting legislation which is a straight read across of legislation applying in England and Wales in the absence of any consideration of the particular circumstances of Northern Ireland and in the absence of full and comprehensive engagement and consultation with affected individuals and groups as required by section 75.

CiNI is deeply concerned by the scant evidence base on which this draft legislation is predicated. The Partial RIA states “our evidence to date, in the absence of any formal initial policy consultation process, is that the need for change is generally supported by district councils and other key interests[19]".

It is entirely unsatisfactory and in total disregard of their obligations under section75 of the Northern Ireland Act 1998 that the Department have proceeded directly to the stage of draft legislation in the absence of a comprehensive policy development process that takes proactive steps to mainstream equality of opportunity and is in full engagement with affected individuals and groups as recognised under section 75.

We would highlight to the Department the Equality Commission NI’s Guidance on Implementing Section 75 of the Northern Ireland Act 1998[20] which provides clear and unambiguous direction in relation to the requirement for consultation:

Consultation enables an assessment to be made of the views of those who are affected by policy decisions or the design of services. It can help authorities become aware of issues and problems which policies may pose for various groups which the organisation might not otherwise discover. Consultation provides an important means of enabling those who may be adversely affected by public policy to participate in the process of policy making.

In its Equality Scheme[21] the Department does commit to consultation that it timely, open and inclusive and the Department has committed to adhering to the guidance provided by the EC NI. We would therefore highlight that in failing to build into the process a formal policy development phase in engagement with affected groups and individuals the Department has acted in breach of its own Equality Scheme. Therefore we believe the progress of the legislation should be halted to allow the full and proper consultation and engagement with all stakeholders to ensure that all potential equality impacts of the proposals are identified and steps taken to address adverse impact where this arises in respect of any of the proposals.

Consultation with children and young people

As highlighted above we are deeply concerned by the Department’s decision to circumvent the proper processes of policy development and proceed directly to draft legislation on this crucial issue in the absence of timely and inclusive engagement with affected groups and individuals.

We would highlight to the Department that children and young people are important stakeholders as customers of the Department who routinely and regularly access services provided by the Department’s statutory agencies namely the play parks and leisure centres run by local government.

In addition to the requirement placed on the Department to consult directly with children and young people as members of the section 75 age category we would highlight the Department’s obligations in relation to the UNCRC. Government in Northern Ireland has signed up to the UNCRC and in doing so committed to actively taking forward delivery of its provisions for all children and young people. The UNCRC places specific obligations on Government in relation to seeking and responding to the views of children and young people when developing public policy. Article 12 of the UNCRC requires State Parties to assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

CiNI does note that in respect of the obligation on the DOENI to consult directly with children and young people in accordance with the Section 75 duty to promote equality of opportunity, the DOENI, in its Equality Scheme, has committed to giving consideration to how best to communicate information to children, young people and those with learning disabilities, in consultation with representatives of the affected groups under Section 75.

However, following contact with the Department we are aware that the Department has not produced a child accessible version of the consultation materials. We would highlight that the production of accessible consultation materials is essential in supporting and enabling children and young people to contribute to the consultation process in an informed manner. We would be keen to here from the Department of any direct consultation with children and young people it has undertaken or is planning in relation to the draft legislation.

CiNI would seek information on the details of the system which will be used to analyse responses to this consultation process including the degree of weight which will be attributed to both individual and organisational responses. This is a vital element to drawing conclusions from responses and progressing with identified areas for immediate action. For this reason, we would appreciate information both on the system itself and on its operation for the purposes of analysis.

CiNI would highlight that support is available to DOENI to help ensure effective consultation with children and young people. CiNI hosts the Participation Network[22], which is an OFMDFM supported initiative, set up to provide training, signposting and consultancy support to public bodies, such as DOENI, to help in fulfilling section 75 obligations to consult with children and young people. We understand that the Road Safety Division has engaged with the Participation Network with regard to the development of its new draft Road Safety Strategy. We would advocate that DOENI Children’s Champion must now work to ensure that best practice in participation and consultation evidenced within a single division of the Department is mainstreamed across all divisions/business areas within the Department. We would urge the Climate and Waste Division to visit the Participation Network website and set up a meeting with the Network staff.

Conclusion

In conclusion, we trust that this submission can usefully inform the development of proportionate and appropriate responses to issues and concerns that communities themselves identify in relation to their neighbourhoods and environment. In line with the views expressed in response to the Community Safety Strategy consultation we would advocate the need for multi-agency approaches that embrace prevention and early intervention as the key to ensuring neighbourhoods and communities are safe areas where everyone can feel secure and have pride in.

[1] Clean Neighbourhoods Consultation Summary June 2010 p.37

[2] Clean Neighbourhoods Consultation Summary June 2010 para 24

[3] Annex A – Discussion Paper on the Future Community Safety Strategy (July 2010)

[4] Ibid p.3

[5] OFMDFM Our Children and Young People Our Pledge A Ten Year Strategy for Children and Young People in Northern Ireland 2006-2016

[6] Families Matter – Supporting Families in Northern Ireland A Regional Parenting and Families Strategy

[7] http://www.participationnetwork.org/

[8] Monteith and McLaughlin (2004) Severe Child Poverty in NI Key Research Findings

[9] Monteith, Lloyd and McKee Persistent Child Poverty in Northern Ireland

[10] Ibid p.326-327

[11] Ibid. p.328

[12] McAlister, Scraton and Haydon (2009) Childhood in Transition Experiencing Marginalisation and Conflict in Northern Ireland. QUB Belfast.

[13] Ibid p.84

[14] http://www.defra.gov.uk/environment/quality/local/legislation/cnea/documents/juveniles.pdf

[15] CRC/C/15/Add. 188 Paras 57 and 58

[16] UN CRC (2007) GC No. 10 Children’s Rights in Juvenile Justice Paras 32 and 33

[17] NIO (2009) Summary of response to Together. Stronger. Safer. Community Safety in Northern Ireland Consultation 
p. 10-11

[18] Clean Neighbourhoods and Environment Bill Partial Regulatory Impact Assessment p.2

[19] Draft Clean Neighbourhoods and Environment Bill Annex C Partial Regulatory Impact Assessment p.2

[20] ECNI (2005) Section 75 of the NI Act 1998 Guide to the Statutory Duties. ECNI Belfast

[21] DOENI (2001) Equality Scheme p.24-34

[22] http://www.participationnetwork.org/

Fermanagh Trust Submission to the Clean Neighbourhoods and Environment Bill

Northern Ireland Environmental Quality Forum (NIEQF) Submission to the Clean Neighbourhoods and Environment Bill

Introduction

The cost of cleaning our streets stands at nearly £100,000 per day; not surprising given that 46% of people still admit to dropping litter. The enforcement measures covered in this Bill cover one of several approaches required if we are to change people’s anti-social behaviour (as has been successfully achieved with seat belt laws, drink driving and smoking in public places). This in turn will reduce the rate bill to taxpayers, improve the quality of life for us all and help Northern Ireland make the most of its world-renowned environmental assets, drawing in businesses and tourists and increasing the economic prosperity of us all. Therefore, the Northern Ireland Environmental Quality Forum welcomes this Bill and the increased powers it intends to give to councils to tackle endemic environmental crime.

This evidence is based largely on our response to the CNEB Consultation.

We see several areas where changes could be made to strengthen the proposed legislation. Some of these are fairly small; others require more substantial changes or may be dealt with using secondary legislation at a later date. We recognise that several areas may not be dealt with do to time and resource constraints, but wish to make clear that these elements must be given due consideration as soon as reasonably possible in order to provide enforcement teams with the best framework in which to deal with these crimes.

We want to see the inclusion of a requirement to incorporate environmental crime within anti-social behaviour strategies as it is felt that this would bring wider benefits. We consider that Anti-Social Behaviour Orders are a significant and powerful weapon in this area. In England, this is aided by section 1 in the CNEA (inclusion of acts harming the environment as crime and disorder) which is not reproduced in our draft CNEB. We want to see this statement included in the Bill.

Councils inevitably take the blame for virtually all litter related issues. Yet, as TIDY Northern Ireland has noted from its extensive survey data, councils are the most effective bodies in clearing up litter. It is more often other landowners that fail to clean up their land, even where they have a statutory duty to do so. We therefore also want council powers (including litter clearing notices, street litter control notices, defacement removal notices) extended to include not only privately owned land (such as in private housing associations, car parks, retail parks or industrial areas) but also land managed by other government agencies (such as the NI Housing Executive, Roads Service and Forest Service).

It may be that a some of the requests for increased council powers contained in this consultation response will be dealt with by the transfer of planning powers to councils but we would ask for this to be confirmed or otherwise in all such cases.

Finally, there is a concern that, despite some increased income from fines these new powers will still generally require additional resources and we would ask that these be made available to councils to support implementation.

Note that throughout the response we make reference to the following:

Clean Neighbourhoods and Environment Bill CNEB

Clean Neighbourhoods and Environment Act (2005) CNEA

Climate Change Act 2008 CCA

Environmental Protection Act (1990) EPA

Fixed Penalty Notice(s) FPN(s)

Northern Ireland Environmental Quality Forum NIEQF

Planning Northern Ireland Order (1994) PNIO

Town and Country Planning Act (1990) TCPA

Part 1 – Gating Orders

The NIEQF welcomes the development of these orders and the benefits they will bring to the public, local communities and businesses.

A number of councils have already been involved in alley gating schemes and would like to highlight the issue of resourcing such schemes (eg costs of installation, staff, long-term maintenance, public liability etc). The NIEQF recommends that this new legislation is accompanied by sufficient resources to ensure it is effectively utilised.

Part 2 - Vehicles

Nuisance Parking

There is a definite advantage in having this provision. However, it needs to be noted that the requirement for sale of two or more vehicles within 500 metres does provide for a number of loopholes in terms of enforcement. Such loopholes have been exploited in England, where sellers of vehicles simply park vehicles sufficiently far apart to avoid committing an offence or by frequent rotation of single vehicles. In England and Wales these loopholes have been partially shut by use of street trading legislation or legislation allowing removal of nuisance articles from the highway. The NIEQF welcomes the clarification that other legislation will be available and that a level 4 penalty will be available.

Part 3 – Litter

Offence of dropping litter in lake, pond or watercourse

There is an assumption that litter dropped into water is covered by the existing Article 3 of the Litter Order 1994. The NIEQF welcomes the further clarification of this point in future guidance.

Penalty for failing to provide name

In the Litter Order 1994 the ability of councils to obtain information applied “for the purposes of any function conferred on the council by this Order". The NIEQF would expect the penalty for failing to provide the correct name and address to apply similarly across all relevant enforcement powers covered by the CNEB.

Litter Offence: fixed penalty notice

Without sight of the upper and lower levels of the fines being proposed it is difficult to comment on this aspect. However, we strongly believe that the upper level of fines should be modestly raised beyond the £75 in the draft Bill. The NIEQF accepts that the current proposals bring parity with the CNEA. However, there are specific reasons why we want to see higher upper limits for penalties and fines.

At £75 it leaves us issuing FPNs that are lower than in the Republic of Ireland where leaving or throwing litter in a public place is an offence that can be subject to an on-the-spot fine of €150 or a maximum fine of €3,000 upon conviction.

Fines and FPNs should be sufficiently high to act as a serious deterrent to the majority of the population.

They should also be sufficiently robust to also help pay towards the £94m annually (£93,000 per day) that councils spend cleaning our streets of litter – a bill which is currently footed by all ratepayers. This brings in the principle of polluter pays and helps councils cover some of the extra cost of implementing the new legislation.

This should apply to all Fixed Penalties throughout the Bill and not only those issued for littering.

The NIEQF welcomes the facility for councils to vary the level of fines.

New powers for the councils, which enable them to authorise non-council staff to implement certain enforcement powers in the Bill are also to be welcomed. Again, these should apply to all enforcement sections of the Bill and not just in respect of littering.

Litter Clearing Notices

In England, Section 92A Environmental Protection 1990 Act (EPA) (as introduced by England’s CNEA 2005) is heavily used in cleaning up neighbourhoods. Thus Litter Clearing Notices may well become the primary means of land management in relation to litter (and potentially waste) problems. We therefore welcome the strengthening of this legislation. These are extremely effective notices, but the definition of “occupier" needs to be clarified and remain sufficiently wide to confirm that it will include persons actively exercising rights over the land. In future this may become more important, for example, to include occupiers storing bins in private alleyways.

Appropriate definitions of waste may also be required to also assist this litter clearing provision.

A general concern is the fact that councils regularly face criticism for land that is controlled by other bodies that have statutory cleansing duties. These bodies do not invest the same time and effort into cleansing services. Often litter is left to lie indefinitely on their land. Contractors, where employed for eg to cut Housing Executive land, often fail to fulfill their duty to lift litter before commencing grass cutting operations, resulting in shredded litter that is almost impossible to lift. There exists a great disparity between what councils have to do re litter etc and what other landowning bodies have to do and the result is a degraded environment across Northern Ireland. As mentioned in the introductory section of this response, a measure of the cleanliness of land by owner is something that needs to be incorporated into the National Indicator.

Councils need some mechanism to maintain standards within their geographic boundaries. Expecting other bodies to ‘do their duty’ clearly does not work. The rationale in England and Wales is that the exempted bodies already have statutory cleansing obligations that may instead be enforced by a section 92 EPA notice – a notice requiring statutory undertakers to comply with cleansing obligations. We would request that serious consideration is given to removing the exceptions to which litter clearing notices shall not be served under Article 17(10). Some more detail on this is given under Additional Comments - General.

Street Litter Control Notices

The Street Litter Control Notices Order (Northern Ireland) 1995 (No.42) has been made in regard to Article 14(1) Litter Order 1994. A new order is required, which needs to be sufficiently broad to include offices and commercial tenancy premises, to also play a role in controlling waste created by smokers outside offices and waste being left outside commercial multi-occupancy tenancies where it is often left on or spilling onto the street. This may be more easily done by secondary Order and need not be in the primary legislation. Similarly, any Order, as stated under Article 14(2) needs to be sufficiently broad to allow both the owner and/or the occupier to be served with street litter control notices.

This aspect also needs FPN provision for parity with England. FPN provision in England is covered in section 94(8) and 94A EPA, as inserted by section 22, CNEA. It applies to all land in the open air and highways that the recipient of the notice may access or is given ability to access, whether public or private, but not including vehicular carriageways.

Part 4 – Graffiti and Other Defacement

These provisions only work to amend pre-existing powers to prosecute beneficiaries and to summarily remove offending fly posting. The CNEB amendments on fly posting and graffiti will not have the same effect as those in the CNEA in England and Wales as the legislation it is amending is different. The proposed legislation is in effect far weaker and does not offer parity.

The NIEQF welcomes the acknowledgment that Planning Service powers to prosecute are to be made available to District Councils.

Unlawful Display of Advertisements

A massively beneficial provision in England (to the extent that many authorities have re-delegated powers to enable their waste control officers to use it) lies within England’s planning legislation. This provision did not prove to be particularly useful until extended beyond planning enforcement. The section concerned is section 215 TCPA. It provides power to take action by notice to require abatement of any element of land / premises considered to be detrimental to amenity of the area. Unlike section 92A EPA it is not limited to litter / refuse and can therefore be used on matter such as the storage of vehicles creating visual detriment, graffiti and fly posting. The NIEQF would like confirmation of how parity is being achieved in this instance. If there is no equivalent provision this would ideally be introduced, with a FPN provision.

In England graffiti and fly posting is sometimes dealt with by section 215 TCPA. However, all studies (including Fly-tipping: Causes, Incentives and Solutions. A good practice guide for Local Authorities,

Jill Dando Institute of Crime Science, University College London 2006, show that this type of problem is most effectively dealt with by immediate removal powers. England currently utilise section 132 Highways Act 1980 and 224 / 5 TCPA to remove fly posting. Importantly, the ability to prosecute beneficiaries has proven to be very beneficial given the inherent difficulties of apprehending persons carrying out these acts.

Local authorities also do not have the fall back equivalent of England’s section 149 Highways Act 1980 to remove any item placed on a highway and considered to be a nuisance (many use this provision to deal with people selling cars but trying to get around the CNEA offence).

Councils in Northern Ireland must therefore be given powers to issue FPNs to any beneficiaries of fly posting and to prosecute where these are not paid or where the seriousness of the offence requires it. Without these powers there is a huge gap that will allow increased levels of fly posting; the opposite to the desired outcome. Powers simply to fine those caught fly posting are inadequate and it is known in England that organisers of events have simply built in the costs of FPNs issued in this way.

Penalty notices for graffiti and fly-posting

The Crown Prosecution Service and other legal bodies in England consider ASBOs to be a significant and powerful weapon in reducing fly-tipping and graffiti. The Anti-Social Behaviour (Northern Ireland) Order 2004 does contain a similar provision for ASBO on conviction, although Northern Ireland Environmental Quality Forum accepts that Northern Ireland legislation provides less detail as to what offences ASBOs can be used to combat. In England ASBOs have been used to ban fly-tippers from problem areas, ban persons from being in charge of dogs and threaten imprisonment to those running commercial fly-posting operations (for example, Camden became fly posting free on the back of one conviction ASBO against their main perpetrator). However, this has been aided by section 1 CNEA (inclusion of acts harming the environment as crime and disorder) which is not reproduced here in our draft CNEB.

Part 5 - Dogs

The NIEQF welcomes the confirmation that district councils will be able to draw up a “Fouling of Land by Dogs Order" for its entire district if it chooses to do so, but cautions that the transfer of powers to deal with dog fouling from the Litter Order to the Dog Control Order regime should not dilute the range of enforcement options available to local authorities.

As stated generally throughout this response, the level of fines under Article 40 needs to be raised to a maximum of level 4, in keeping with the polluter pays principle. Similarly the level of FPN should be higher than £75.

Part 6 – Noise

The extra powers afforded to councils are welcomed.

Part 7 – Statutory Nuisances

The recognition that artificial light can be prejudicial to health and/or cause nuisance Article 61(h) is welcome, not only from the individual benefits that this can bring but also from a broader desire to see Northern Ireland lead the way in reducing unnecessary energy use and limiting the negative environmental impact.

Part 8 – Miscellaneous and Supplementary

The NIEQF welcomes the intention to raise the levels of fixed penalty notices but strongly urges the maximum levels of fines and FPNs to be increased for the reasons given above under Litter Offence: fixed penalty notice.

Additional Comments

General

It is recognised that councils in England and Wales have responsibility for roads and planning functions and as such can operate a more holistic street scene approach. If we are to achieve parity then the CNEB must address areas where simply mirroring the legislation from CNEA leaves significant loopholes.

In general, we want to see councils have powers of enforcement across all land within its boundaries. The current list of statutory undertakers, along with other exclusions such as educational establishments and crown land, results in councils having little control over litter levels across extensive areas of land within their boundaries. This needs to change if we want to make a real difference. We feel removing such exclusions will help deliver an effective joined up management of street scene. This also sits well with the power of wellbeing currently being considered by the RPA, given the negative impact of littering etc on people’s health and wellbeing.

Failing this the CNEB needs to incorporate a clear effective methodology to enable councils to deal with the many complaints they receive in relation to non-council owned land. This methodology should focus on how it can ensure that the public see positive results from such complaints. Councils face various issues in relation to dealing with these such as ascertaining who the land owner is, finding the ‘right’ contact within the (often government department) organisation and actually getting progress made in relation to a clean up.

Performance measurement

To provide feedback on the efficacy of the new legislation and to inform its future development, the NIEQF is calling for the introduction of a central government funded National Indicator for Local Environmental Quality. Various measures already exist across the rest of the UK (eg National Indicator 195 which superseded Best Value Performance Indicator 199 in England) and we are asking at least for parity on this. In addition to measuring LEQ (through litter, graffiti, fly-posting etc) and cost of street cleansing services, an indicator for Northern Ireland could lead on this issue if it were to include council level measures for enforcement, media campaigns, community engagement, education and monitoring, thus ensuring behaviour change was being tackled on all fronts. As an example for enforcement, specific measures might include, for each area of the legislation:

Number of FPNs issued

Number of FPNs paid

Number of prosecutions taken

Number of successful prosecutions

The measure for LEQ should allow direct comparison with at least one other jurisdiction within the UK. A measure of cleanliness by landowner is also absolutely necessary to determine which bodies that have statutory cleansing duties are performing to the necessary standards. This should be developed in conjunction with TIDY Northern Ireland and can be developed from the current Northern Ireland Litter Survey and Litter Fines Survey.

Waste issues

Although household waste receptacles are regulated by councils they are hampered by the lack of particular provisions:

Article 76, CCA, amended the EPA Section 46(11) 1990 to provide in England that any household waste not placed in accordance with directions no longer falls within the local authority’s duty to collect. This had a significant beneficial impact on regulation, but was not included in England’s original CNEA provisions. It is an extremely important provision. It is not merely to allow for charges for collection of improperly sited waste; it also opens the door for effective land management. This would require an amendment to Article 20 of the Litter Order 1994 (section 46 equivalent) which is a Council power rather than Departmental. It could be placed within miscellaneous and supplementary.

A Divisional Court case in England (Leeds City Council v Gordon Hoyland Spencer), based on identical provisions, states that improper storage and placement of household waste does not displace the duty to collect free of charge. In that case Leeds City Council had issued a notice (section 4, Prevention of Damage by Pests Act 1949) to a landlord to clean up land and had then prosecuted and sought to recover default monies. The Court held that the landlord could not be prosecuted and the local authority was not entitled to recover any default monies, as the authority nevertheless had a duty to collect the waste free of charge.

In the absence of the CCA amendment, given the otherwise identical waste collection provisions, Northern Ireland authorities will remain subject to challenges on the same basis whenever attempting to secure clearance and proper management of land defaced by household waste. If the Leeds case were followed here in Northern Ireland this could seriously hamper councils in clearing up the environment.

The London provision allowing regulation for the purposes of amenity as well as collection is not reproduced in Northern Ireland. Accordingly, councils are limited in their control of waste while stored within the boundary of the property.

Local authorities remain unable to use the wider investigation powers provided by Article 72, the equivalent was extended to local authorities in England by section 53 CNEA, but it appears (subject to confirmation) that this section was not reproduced when Northern Ireland dealt with Part 5 CNEA. Accordingly, although there is a provision to require information within Article 20, this is restricted by the need to require the information by way of notice, rather than direct application. Direct application can be used directly to conclude at the end of PACE interview to demand documentation etc, from individuals. This can be used on the doorstep to identify occupants. Experience from England shows that individuals will ignore notices at a distance in a way that they cannot face to face.

Further, English local authorities were given powers to require production of waste transfer notes in addition to the Environment Agency. This allows them to cut out fly tipping at source by ensuring waste producers operate using legitimate waste disposal arrangements. Auditing waste producers and using the leverage of the FPN for failure to produce waste transfer notes encourages compliance without prosecution. As this power was extended by secondary legislation it is worth considering whether the power should be extended in Northern Ireland also by secondary legislation. It would not be done in the same way as in England and Wales, but regulations may be made imposing further obligations pursuant to CNEA 5(7) of The Waste and Contaminated Land Northern Ireland Order 1997. Authorities in England and Wales highly value these powers.

Northern Ireland would benefit from enabling of generic service of waste receptacles notices e.g. by publication or service by affixing to the receptacle.

Include Youth Submission to the Clean Neighbourhoods and Environment Bill

April 2010

Introduction

Include Youth promotes best practice with young people in need or at risk. We achieve this through the development and promotion of resources, the provision of training, information and support of practitioners and organisations. We also undertake activities aimed at influencing public policy and policy awareness – both locally and nationally.

Amongst the young people at risk with whom, and on whose behalf, Include Youth works are young people from socially disadvantaged areas, those with a learning disability, those with special needs, those who have been truanting, suspended or expelled from school, those from a care background, those who had a negative parenting experience, young people who have committed or are at risk of committing crime, misusing drugs or alcohol, undertaking unsafe sexual behaviour or other harmful activities, or of being harmed themselves.

The Give and Take Scheme aims to improve the employability and increase the self esteem of young people in need or at risk from across Northern Ireland. The Scheme works with approximately 135 young people from a care or criminal justice background. The Scheme aims to support young people to overcome particular barriers that prevent them from moving into mainstream training or employment and towards independent living. 75% of people on the Scheme are care experienced and we have strong partnership with all Trusts, YJA, PBNI and Careers service. The Scheme provides essential skills training (ICT, English and maths) to all of the young people.

Include Youth manages the LACE (Looked After Children in Education) Project which is a multi-agency partnership with the aim of promoting better educational outcomes for children and young people in care.

In addition, Include Youth a Practitioners Forum, which draws together professionals from a range of statutory, voluntary and community organisations working directly with young people in need or at risk.

Include Youth’s Young Voices project is a way of delivering participative democracy to marginalised young people in Northern Ireland. Its main aim is to support young people at risk or with experience of the criminal justice system, as well as young people marginalised for a variety of reasons, to become involved in decision making processes which impact on their lives, particularly in social welfare, education and criminal justice matters. The project works with a range of groups of young people in the community and both juvenile and youth custody facilities in Northern Ireland.

General Comments

We apologise for sending in our response to the Draft Bill after the closing date but having spoken to Mark Allison from the Clean Neighbourhoods Team about our concerns about the content of the Bill, we agreed that our response would be accepted after the closing date. Given the gravity of our concerns we are grateful that this response will be considered.

Information about the Bill was delayed in coming to our attention as we were not one of the named organisations on the list of consultees. We would request that we are now included on the mailing list for any further consultations.

Given that we are limited by the time schedule to respond to the document we are unable in this short time to present a full and comprehensive response. However, we are familiar with the content of CiNIs response and fully endorse their position.

We would like to use this opportunity to briefly raise several aspects of the draft Bill which most concern us. We firmly believe that if implemented the Bill will lead to unnecessary criminalisation of children and young people and will act as a fast track to the juvenile justice system.

Specific Comments

FPNs

Include Youth are against the proposal to introduce Fixed Penalty Notices (FPNs) to children and young people. It is unacceptable that these penalties can be applied directly onto children under 16 years of age. We are equally opposed to the suggestion that failure to supply a name and address or to give false or inaccurate information would be an offence and could lead up to a fine of £1000.

It is our understanding that a precedent has been set under current legislation which makes the giving of fines to under 16 year olds against the law. Para 69 of the Criminal Justice (NI) Order 2008 states that:

Where a person whose age is lower that 16 is given a notice, for a parent or guardian of that person to be notified of the giving of the notice and for that parent or guardian to be liable to pay the penalty under the notice

The Criminal Justice Children order 1998 further states that:

It shall not be lawful for a court of summary jurisdiction to impose a fine exceeding –

In the case of a child under the age of 14, level 1 on the standard scale (£200); or

In the case of any other child, level 3 on the standard scale (£1,000)

Para 35. – (1) Where a child is found guilty of any offence for the commission of which a fine may be imposed ... shall if the child is under 16 order that the fine ... be paid by the parent or guardian of the child instead of by the child.

The Guidance on Issuing Fixed Penalty notices contained within the Clean Neighbourhoods and Environment Act 2005 from DEFRA states that authorities are recommended to adopt special procedures for issuing notices to young offenders. This is to ensure that they are acting in accordance with their duty under the Children Act 2004. Different procedures are recommended for 16 and 17 year olds, and for children between 10 and 15, in order to ensure that the welfare needs, legal issues and other concerns relevant to children and young people are adequately highlighted and observed.

Child Safety/ Child Protection Issues

We would like to know if the Department has considered any child protection issues which may arise as a result of the practice of giving FPNs to children and young people. Has the Department considered that if a child is accompanied home and their parent/ guardian is informed of the proposed fine, that a child’s safety could be at risk as a result of the parents’/ carers reaction?

Human Rights

The use of FPNs for young people is in contravention of Article 6 of the European Convention on Human Rights (ECHR) – the right to a fair trial and public hearing. This is supported by Article 40 of the United Nations Convention on the Rights of the Child (UNCRC) which states that a child should be informed promptly of any charge made against him; that if appropriate this should include informing his parents or carers; and that the matter should be determined without delay by an independent and impartial authority. Include Youth are concerned that the process by which FPNs are given may not fulfil these requirements.

Contributing to Outcomes for Children and Young People

The introduction of FPNs is completely in contradiction to the Executive’s commitment made in the Programme for Government to reduce child poverty. It is likely that these FPNs will be issued to children and young people living in our most financially disadvantaged and deprived areas. It also runs counter to the commitment made to children under the Children and Young People’s Strategy.

Section 75

It is clear that many aspects of the Bill are going to have a differential impact on children and young people. We note the Bill suggests that the sale of aerosol spray paints to persons under the age of 16 is to be made an offence. This would suggest that there is an assumption that children in this age range are the main perpetrators of graffiti and will be directly targeted for FPNs.

We would also suggest that the introduction of Gating Orders will have a differential impact on children and young people.

We note that an equality screening exercise has been undertaken and it has been decided that the proposals do not impact on equality of opportunity for any of the nine section 75 categories. We categorically disagree with this conclusion. We have examined the Screening Paper and do not accept the basis on which decisions were taken. We would ask the Department to undertake an immediate review of its Section 75 responsibilities with regard to this draft legislation. We would concur from the evidence presented that the department is in breach of its section 75 obligations by failing to provide sufficient evidence of the grounds on which decisions were taken. We would also like to know what steps were taken to engage directly with children and young people on this consultation and screening exercise.

As part of the Partial Regulatory Impact Assessment we note that it does state that there has been “limited informal consultation with stakeholders but in the main they are based on experience and developments in England and Wales." We reject this as a justification for not conducting a full consultation here in NI. There has not been a concerted attempt to ensure that introduction of this legislation to NI is based on a full and comprehensive body of evidence which supports it. The Partial RIA states “our evidence to date, in the absence of any formal initial policy consultation process, is that the need for change is generally supported by district councils and other key interests." This is a far from an adequate response to the obligations under section 75.

Concluding Comments

Include Youth would strongly recommend that the legislation process be halted until such time as there is a full consultation with all affected groups.

We would welcome the opportunity to work with the Department on moving a full consultation process forward and would be able to facilitate direct engagement with children and young people.

Kennel Club Submission to the Clean Neighbourhoods and Environment Bill

The Northern Ireland Federation of Housing Associations (NIFHA) Submission to the Clean Neighbourhoods and Environment Bill

Response to Consultation

11 August 10

Consultation: Clean Neighbourhoods and Environment Bill

The Northern Ireland Federation of Housing Associations (NIFHA) represents registered and non-registered housing associations in Northern Ireland. Collectively, our members provide 32,000 good quality, affordable homes for renting or equity sharing. Further information is available at www.nifha.org

NIFHA welcomes the opportunity to be consulted on the content of the Clean Neighbourhoods and Environment Bill. We have examined the Bill and welcome many of the proposals contained therein. The additional powers given to councils through the Bill should hopefully make a positive contribution to our neighbourhoods and environments.

The contents of the Bill are noted by the Federation and its members.

Submitted on behalf of NIFHA by:

Maire Kerr
Housing Policy and Research Manager

PlayBoard Submission to the Clean Neighbourhoods and Environment Bill

Introduction

PlayBoard is the lead agency for the development and promotion of children’s and young people’s play in Northern Ireland. To this end, the organisation provides a range of innovative services designed to strengthen service delivery. Since its inception in 1985, PlayBoard has campaigned, lobbied, raised awareness and developed partnerships in order to put play on the agenda of policy makers and resource providers.

PlayBoard is a membership organisation with 300 plus members. The agency exists to promote, create and develop quality play opportunities aimed at improving the quality of children’s lives. This is achieved through three key functions:

• Championing Children’s Play – rights and needs
• Developing, expanding and promoting membership services to assist stakeholders provide better play experiences and opportunities for all children: and
• Improving and enhancing PlayBoard ensuring the organisation is progressive and fit for purpose.

All children and young people have the right to play and have an intrinsic need to play: opportunities for children to be free to choose what they do– with the chance to challenge themselves, take risks and enjoy freedom. The right to play is enshrined in Article 31 of the UN Convention on the Rights of the Child.

OFMDFM are currently in the process of developing the Play & Leisure implementation plan and it is imperative that links are made for the outworking of the clean neighbourhoods and environment bill.

Comments

The state of our neighbourhoods and general environment are issues of crucial importance for children and young people in Northern Ireland. Clean neighbourhoods and environments are highly valued by children and young people as it is in these areas that children spend much of their free time playing and meeting friends. The local neighbourhoods and environments where children grow up have major impact on childhood experiences and can impact on a child and young person’s general health and well-being, and are also important in promoting positive community identity and a sense of pride and belonging for children and young people.

Ideally, towns and cities should be places where children and youth can socialise, observe and learn about how society functions and how they can contribute to the cultural fabric of their community. They should also be places where they can find refuge, discover nature and be supported by tolerant and caring adults who will support them.

Positive examples of children’s authentic participation and social mobilisation in creating better cities around the world are beginning to emerge. It is important that these stories are shared and used as models of good practice in emerging local sustainability discourses.

If having rich local environmental experiences and feeling safe and secure, connected and valued are universal indicators of quality of life, then what better place to start than to evaluate sustainable cities through the lives and eyes of its children. A child-friendly city is a people-friendly city.

Children and young people consistently raise issues relating to their neighbourhoods and environments to share their views on what they identify as being problems within their areas and offering solutions to addressing these problems. These views need to inform the out workings of the clean neighbourhoods and environments bill.

Unfortunately living in a clean Neighbourhood and pleasant environment is not the lived experience of all children and young people in Northern Ireland. For children living in areas where levels of poverty are high it is more likely that their will be significant environmental problems in these areas.

Northern Ireland has high levels of child poverty with 10% (44,000) of children living in severe poverty (children who were poor on 3 measures – low level of household income, child deprivation and parental deprivation)[1] and 21% of children living in persistent child poverty (being poor 3 years in a 4 year period) which is more than double the GB rate of persistent child poverty[2].

Save the Children research on severe child poverty revealed that one in ten severely poor children live in an area viewed by their parents as a bad place to live in, compared to one in sixteen non-severely poor children and one in one hundred non-poor children. Amongst the issues reported as ‘major problems’ were rubbish and litter; dog mess; vandalism and graffiti.

Children and young people also consistently raise issues in relation to a lack of places to go and things to do in their local areas. Recently it has been raised by children and young people who participated in the NI Commissioner for Children and Young People’s Review of Children’s Rights in Northern Ireland. Notably as part of the review children commented on the places where they currently spend time. The review noted that these places were deemed to be far from ideal in terms of safety and security. Children and young people had a lot to say about the poor state of their parks and other public spaces. Issues raised included broken and poorly maintained equipment, broken glass and rubbish lying around, vandalism, dog dirt and a lack of public conveniences[3].

The review highlights that councils need to fulfil their duty, not only to provide adequate space for play, but to maintain it and ensure that it is a safe and clean place for children and young people[4].

Recent research undertaken by QUB, The Prince’s Trust and Save the Children NI[5] with 196 children and young people from across 6 communities significantly affected by the conflict revealed that the main issues for these children and young people in relation to their communities were in order of priority, the nature of play/leisure facilities; street fighting/violence; alcohol; and the general state of the area. The general environment or state of the neighbourhood was raised by children in discussions about litter and rubbish on the streets, graffiti, dog fouling and the consequent smell. They were concerned that the general appearance of their communities was drab and unkempt. Children had recommendations to make and focused on reconstruction, maintenance and the security of parks, young people desired more facilities, improved choice and diversity[6].

PlayBoard would strongly advocate that the DOE respond to and engage children and young people as primary stakeholders with an active contribution to make in promoting their neighbourhoods and environments. We do believe that action is required to improve the environments where the poorest children live. However, these actions must be developed through engagement with children, young people, their families and communities so solutions can be arrived at. It is essential that communities feel ownership of and can deliver on collectively, in a way that respects and values their contribution.

Specific Comments on Clauses of the Bill

Fixed Penalty Notices (FPNs)

PlayBoard notes that the Bill proposes the introduction of Fixed Penalty Notices (FPNs). While it is not explicitly stated within any of the consultation documentation at what age a Fixed Penalty Notice can be applied. It is clear that in the case of penalty notices for graffiti and fly posting these will apply to children and young people aged under 16 and can be levied directly onto children and young people (see below re Part 4). PlayBoard also notes that failure to supply a name and address or to give false or inaccurate information would be an offence and could lead to a fine of up to £1000.

We do note that under the Clean Neighbourhoods and Environments Act 2005 which applies in England and Wales, FPNs can be issued to anyone over the age of 10, that is, the current age at which a child is deemed to be capable of being criminally responsible. Different procedures are in place for 10-15 year olds and 16 and 17 year olds. The only caveat placed on the issuing of these notices is set out in guidance issued by DEFRA to local authorities which states that they must act in accordance with their obligations under the Children Act 2004, to discharge their functions with regard to the need to safeguard and uphold the welfare of children[7]. In England and Wales parents and legal guardians are not responsible for paying penalties issued to children and young people.

PlayBoard is entirely opposed to the use of FPNs against children and young people. Given that in respect of graffiti and fly posting these could be levied directly onto the child and young person we have real concerns regarding a child or young person’s ability to pay such a fine given their dependent status. Fines such as these are an onerous burden to place on a child given that they are likely to have limited means to pay these. Clearly failure to pay a fine would result in a child or young person being fast tracked into the youth justice system.

As noted by the research evidence referred to above issues such as litter and graffiti disproportionately impact on areas where the poorest children, young people and their families live. Therefore it is likely that the poorest children will be targeted, and it is these children and young people who will be even less likely to be able to pay such fines and will therefore find themselves pushed further into poverty or fast tracked into the youth justice system. The proposed introduction of FPNs is entirely contrary to the Executive’s commitment made in its Programme for Government and PSA targets to end child poverty by 2020, by reducing child poverty by 50% by 2010 and eliminating severe child poverty by 2012.

Part 1 Gating Orders

PlayBoard notes that Part 1 of the draft Bill proposes the introduction of Gating Orders which it is stated will predominantly be used to address crime and anti-social behaviour in built-up areas. Gating orders will allow the erection of a physical barrier to restrict public access to a road over which the public would normally have a right of passage.

Again PlayBoard would highlight that it is imperative in compliance with the requirements of section 75 that proper screening and equality impact assessment of the proposed introduction of gating orders is undertaken.

We would highlight that children and young people potentially will experience significant adverse impact from the introduction of such orders. It is likely that these roads in built up areas may be used by children and young people as pedestrians to have convenient, safe and easy access to school, play and leisu