Official Report: Minutes of Evidence

The Chairperson (Ms Lo): I welcome Angus Kerr, Joe Torney, Irene Kennedy and John Conlon. You are all very welcome. We are not too bad for time; you have about 10 minutes. Please proceed with your briefing.

Mr Angus Kerr (Department of the Environment): Thank you very much, Chair. We are delighted to be here today to brief you on the outcome of the Department's recent consultation on planning reform subordinate legislation phase 2 and to hear any views you may have. You are aware that responsibility for the majority of planning powers will transfer to the 11 councils on 1 April, next month. The Planning Act (Northern Ireland) 2011, which was subject to full Assembly scrutiny, introduces a new two-tier planning system, with responsibility for the majority of planning decisions transferring to the councils. Councils will be responsible for preparing their own local development plans, determining the vast majority of planning applications and enforcement activity. The Department is bringing forward a broad range of subordinate legislation under the Act within a relatively short period. To manage that effectively, as the Committee is aware, the Department has consulted on the legislative proposals in two phases to better manage the workload and show the connectedness of the many reforms.

All 18 statutory rules (SRs) have now been made as part of the phase 1 planning reform subordinate legislative programme. We are making good progress. On 31 October 2014, the Department launched the phase 2 public consultation, which dealt with issues that, while important in delivering the broad range of planning reforms, are not essential to the continued operation of the planning system when powers transfer on 1 April, as opposed to the phase 1 issues, which are. The Department, nevertheless, is aiming to have the phase 2 reforms introduced as early as possible in April 2015. The phase 2 proposals primarily relate to simplified planning zones (SPZs), the levels of the new fixed penalties, and the modification and discharge of planning agreements.

We received 26 responses to the phase 2 consultation paper. The representations came from councils, business groups and environmental groups. The range of responses indicated broad support for the reform of the planning system, with most respondents welcoming the proposals. A detailed synopsis of responses received and the Department's consideration and proposed response to them has already been sent to Committee members. Details of the level of responses are set out in the annex to the synopsis. Although there was broad support, the Department proposed to make some minor amendments to the proposals. Those are also set out in the annex.

I will now take members through the three key areas, highlighting issues raised through the consultation, together with the Department's proposed responses. I will start with simplified planning zones regulations, which are subject to the negative resolution procedure. The consultation paper sought views on this subordinate legislation, which includes provisions for a council making and adopting SPZs. An SPZ can be an area of land earmarked for specific development where planning permission for the specific development is given without the need for a planning application or the payment of a fee. In general, the response to the consultation was very positive, with 96% of respondents giving their broad support to the proposed regulations. A number of issues were raised by various respondents in relation to future guidance, conditions, the council and Department's roles and how SPZs would work in practice. The Department recognises that, in addition to the legislation, guidance is key to the operation of SPZs, and it will ensure that detailed guidance will set out the procedures contained in the legislation and address the council's preparation, adoption and alteration of SPZ schemes. Guidance will also cover the use, content, conditions and effect of SPZs.

A number of respondents also raised issues about the impact that SPZs may have on sustainable development principles, longer-lasting benefits for the economy and environmental priorities, as well as highlighting that SPZs should not be used as a mechanism to undermine regional or local development planning policies. Respondents also made it clear that the Department has an important strategic responsibility for land-use planning across Northern Ireland, together with ensuring a consistent approach and the appropriate application of SPZs across council areas. When preparing the SPZ, a council must take account of the regional development strategy, any policy or advice contained in guidance issued by the Department and such other matters as the Department may prescribe or, in a particular case, direct.

The Department, through its oversight intervention role, will ensure that SPZs by councils take account of policy requirements with regard to sustainable development, the strategic planning policy statement and adopted local development plans. SPZs will not remove the requirement for councils or developers to abide by other regulatory systems. The detail of the schemes will be subject to public consultation and will also involve consultation with the Department. The Department has sought legal advice on certain issues, such as regarding title and clarification of the area affected by SPZs, and it proposes to make minor amendments to the 2015 regulations. The changes include an additional regulation to clearly highlight the requirement for a title to be provided for the SPZ and minor drafting changes to form 1 of the schedule, which has been further refined.

In addition, it is proposed to remove regulation 21, which deals with restrictions on planning permission. A council must not include in a scheme any development that is within a description mentioned in schedule 1 or 2 to the environmental impact assessment (EIA) regulations, where the development is likely to have significant effects on the environment by virtue of such factors as its nature, size or location, unless the council has made a determination that the development is not EIA development. Those regulation 21 provisions are covered by the recently made EIA regulations. Finally, a statement setting out that the 1990 regulations are revoked will be included.

I will now move on to the fixed penalty regulations, which cover the amount of fixed penalties for failing to comply with an enforcement notice or a breach of condition notice. The consultation proposed a fixed penalty amount of £2,000 for failing to comply with an enforcement notice and £300 for failing to comply with a breach of condition notice. Overall, there was general support — 85% — for the introduction of a fixed penalty notice as a discretionary enforcement tool and for the proposed regulations that set out the penalty levels. Members may recall that fixed penalty notices were introduced by the 2011 Act as a means of dealing with certain environmental crimes. A fixed penalty notice does not carry a criminal conviction, and the recipient can opt for the matter to be dealt with in court instead of paying. A fixed penalty notice will allow a person who fails to comply with an enforcement notice or breach of condition notice the opportunity to discharge any liability for the offence of non-compliance without having to go to court. Some respondents to the consultation suggested an element of caution in the use of a fixed penalty notice and that it may not be appropriate for all breaches. The fixed penalty notice is an additional enforcement measure, and it is an alternative to potentially lengthy and costly court cases. The intention is to issue the fixed penalty notice, giving the offender the opportunity to pay a penalty as an alternative to prosecution.

The Department recognises that the penalty amount may be viewed as low for more significant breaches. However, in such circumstances, prosecution through the courts is the more appropriate course of action. It will be a matter for a council to assess the nature and scale of the particular breach of planning control and select the appropriate enforcement measure. A small number of respondents proposed a sliding scale of amounts based on the size, scale and type of development as well as the nature of the offence. However, no specific approach or clear proposals were provided in the response as to the level of penalties or how such a system would be operated by the council. The Department considers that there would be legal and operational difficulties for a sliding-scale process in what is meant to be a simplified approach.

I will now move on to the Planning (Modification and Discharge of Planning Agreements) Regulations (Northern Ireland) 2015, which cover the modification and discharge of planning agreements. Under the regulations, councils, as well as the Department, will be empowered to enter into planning agreements where they operate as the relevant authority on planning matters.

A planning agreement is a voluntary, legally binding agreement that can be utilised to overcome identified barriers to the granting of planning permission, normally for large-scale, major planning applications that cannot be suitably addressed by way of conditions attached to the permission.

The consultation proposal dealt with a changed appeal period against the determination of applications to modify or discharge a planning agreement, going from six months to four months. The purpose of the change is to align the appeal period with other appeal provisions under the 2011 Act. Some 96% of responses to that question agreed with the proposal, with only one response suggesting that it should remain at six months. Four respondents made no comment or response on that particular aspect of the consultation. A number of responses highlighted the need for appropriate resources and the necessary skill base to manage and deal effectively with the modification and discharge of planning agreements. A few responses drew attention to the requirement for guidance.

In light of the strong support, the Department considers the responses to that aspect of the consultation to be very positive and the proposed reduction from six to four months for the review period to be an appropriate and consistent measure. The Department has decided to proceed as proposed in the consultation paper. Other than that, the Department considers that the proposed regulations deal mainly with technical changes to accommodate the move to the two-tier system and new council responsibilities.

In relation to next steps, the Department proposes to have all SL1s for phase 2 legislation proposals to the Committee for consideration as soon as possible. In fact, I think that they are already with the Committee. Those SL1s will cover simplified planning zones and modification and discharge of planning agreements. They will also cover the SL1 for the statutory rule on fixed penalty amounts, which is subject to affirmative resolution.

The Department will also bring forward a series of technical statutory rules that amend existing statutory rules to reflect the new two-tier system but do not make any substantive policy changes. Those are the Certificates of Alternative Development Value Regulations 2015, the Planning (Conservation Areas) (Consultation) Regulations 2015 and the Planning (Inquiry Procedure) Rules 2015. We are happy to take any questions that members may have.

The Chairperson (Ms Lo): It is hard to take that all in. You galloped through it. I was fiddling, trying to find the page that you were on, and I missed most of what you said about the simplified planning zones. They are all going to be down to local councils when they are looking at their local development plan. That is a power that we are going to give to them. How is it simplified? Is it quicker or are there lower requirements?

Mr Kerr: We anticipate that councils will consider the need for simplified planning zones when they are bringing forward their development plans. That makes sense. They are looking at the comprehensive development of the whole area, and they may want to identify areas where they consider that that approach would be most effective to regenerate —

The Chairperson (Ms Lo): Like a business park.

Mr Kerr: Exactly that type of thing. But there is no requirement that they do it through the local development plan. A council could decide very quickly to introduce a simplified planning zone, maybe before it gets its development plan out. However, you are absolutely right that the sensible approach would probably be to prepare your plan strategy at least. The plan strategy would probably identify those areas where a business park or something like that would be most effective, and then they would move forward with their SPZ.

The real benefit of them is that there is a schedule with a simplified planning zone that indicates a number of uses for which the simplified planning zone scheme does not require a planning application or planning permission. Basically, the developers, if they are complying with those requirements of the SPZ, just go ahead and notify the council. There is no need for a planning application, all of the process, the fee and so on. They can just develop. The argument is that it therefore brings forward development more quickly. Of course, the council will have to take into account all of the implications of a development like that when it is preparing a simplified planning zone in the first place.

The Chairperson (Ms Lo): A free-for-all. Not quite.

Mr Kerr: Not really, because, in a sense, it is a bit like assessing the planning application in advance through the preparation of the simplified planning zone, if you know what I mean. The council, when it is preparing that simplified planning zone, has to anticipate what the implications would be if the identified developments came forward. As part of that scheme, they would do all of the consultation that you would do if you received a planning application and there was no SPZ. So, it is not a free-for-all; the council is doing the work up front, identifying what is acceptable and allowing the development industry to very quickly come forward with all those things.

The Chairperson (Ms Lo): So they would put the requirements and the material conditions up front, and then people can apply. The massing, the height and all that.

Mr Kerr: Precisely. All that stuff would be included in the simplified planning zone. As long as the developer complies with all that, they can just go ahead, very quickly.

The Chairperson (Ms Lo): That is scary, though, for planners, to say that the developers can just go ahead. Is it not?

Mr Kerr: Not necessarily, because the planners are involved in the scheme, to make sure that the scheme is right — so that it is conditioned correctly, the uses are acceptable, and there are no difficulties and problems in going forward with the uses. They would chiefly be used in areas such as a business park, which are not the most sensitive areas, there is no residential development around them and so on. Those are the sorts of location for simplified planning zones generally, although we have never had a simplified planning zone in Northern Ireland.

The Chairperson (Ms Lo): They have them in England and Scotland, do they not?

Mr Kerr: Yes, they have simplified planning zones in England, but not that many. A current one in Slough is a good example.

The Chairperson (Ms Lo): Is it mostly for business, so that, say, a recycling plant in such and such an area can go ahead?

Mr Kerr: It would be very difficult to handle something like a recycling plant through an SPZ, because there are exclusions and checks and balances in the system. If something requires an environmental impact assessment, it cannot be covered by an SPZ. It is not really designed for that sort of development.

The Chairperson (Ms Lo): OK. You said that there will still be consultation, notification of neighbours and so on.

Mr Kerr: Absolutely. It is more like a mini development plan-style consultation. It would be put out for public consultation and all the consultees — roads, water, environment and so on — would be consulted fully as part of the process.

Mr Boylan: Angus, you are welcome back.

Mr Kerr: Thank you.

Mr Boylan: I am sorely tempted to say that you have finally seen the light.

We have looked at this before. I think that this is welcome. Looking at it in tandem with the area plans would probably be a more appropriate way to do things, to be honest with you. Hopefully, it will give a wee bit of flexibility, if there is an occasion to do that. It is certainly welcome. We have had this debate, and I think that I have finally won the argument, but that is only my personal opinion.

People had genuine concerns about the process. We have built all those things into the new Planning Act in putting things up front, going out to objectors and the consultation process. Paths are already laid for all that process, but, under the new planning law, we will have neighbour notification, better engagement and responsibility on the part of the applicant. Those processes are already built in, so I welcome that. I do not see a major shift. I see that there may, in the future, be an opportunity for simplified planning zones to come in. I think that, over the next two or three years, councils will be looking at their own area plans anyway, and council will have responsibility for development.

I certainly welcome today's proposals. I think that there is an opportunity here, maybe in the transition period. As I say, it is down to local authorities now to see how we go forward. We have had this debate before, Chair.

The Chairperson (Ms Lo): Once an area is designated as a simplified planning zone, if there is a major development like John Lewis, would that application then be dealt with by the strategic planning division in the Department, or will the decision remain with local councils?

Mr Kerr: A major retail development like that would initially be handled by the council unless the Minister wants to call it in because he considers it to be of regional significance.

Mr Boylan: I have a follow-up, Chair. Basically, we are talking about enterprise zones here, the SPZ type, such as business parks and the likes. I think that it is a quite reasonable approach.

The Chairperson (Ms Lo): Community hubs and that sort of thing.

Mr Kerr: To clarify, the difference between SPZs and enterprise zones is that enterprise zones usually —

Mr Boylan: I know.

Mr Eastwood: They only go to Coleraine.

Mr Boylan: Grand. It is the principle of the idea.

Mr Kerr: That bit is outside of planning.

The Chairperson (Ms Lo): We have not used much of that enterprise zone-type planning.

Mr Eastwood: Or city deal, which is a similar initiative from the Treasury. We have done none of that. One enterprise zone is proposed for Coleraine bizarrely and none for Derry, but that is another debate.

Mr Boylan: I tried to get economic zones into the debate, but it did not go anywhere. That is grand. We will get there in the end.

The Chairperson (Ms Lo): You are very optimistic.

Lord Morrow: Thank you, Angus. There are a couple of issues. If I picked you up right, you said that enforcement would happen a bit quicker or that it has the potential to. Life has taught me that the more things change the more they stay the same. Are we going down the same road again? In relation to the planning strategy for a district council area, I remember working on the old east Tyrone area plan. Irene, I am not trying to get your age or anything, but you might remember it. It was 15 years out of date. I think that, at the moment, the Dungannon area plan is at least 10, 12 or 14 years out of date. Are we going back into the same cycle of working on old plans? Are the resources there to do all this? I suspect, Angus, that they are not, but you will convince me that they are. I will let you do that.

Mr Kerr: I will try. There a couple of points. The Planning Act 2011 introduced a fundamentally different development plan process that is aimed at trying to address the chronic failures in the previous planning process, which you have identified and of which there are plenty of examples. It is about trying to focus on seeing development plans as live documents that are constantly monitored and then reviewed, as opposed to the process in the past, where we put a whole lot of energy into a plan, it took about 10 years to get it forward, and we then forgot about it for another 10 or 20 years or whatever. It is fundamentally moving to a monitoring-and-review approach. There is also the introduction of a two-stage approach, where a plan strategy comes through very quickly. The draft plan strategy can be out in a matter of months rather than years. That then quickly goes through independent examination and, hopefully, becomes settled and adopted. That then narrows the scope for debate, negotiation and so on around the second phase of the plan, which is the local policies plan, where the sites are all brought forward and identified. Tying both those processes to the concept of soundness will also help us to move away from the very adversarial approach that we took to plans in the past. The fundamental problem with the plans in the past — we did the research into this — was the independent examination of the public inquiry process. That is where they became delayed. I am not saying that we were the best or very fast at preparing the plans and getting them to public consultation, but, broadly, we were not that bad at that. The problems came when you opened up the public consultation. Hundreds of people wrote in saying, "I do not want this site. I want that site". That led to a whole process around the inquiry and so on that was very slow and delayed. We have tried to address and move away from those problems in the new process.

The second point that you rightly raised is about resource. No matter how good the new system is, if we do not have the people and the resource to deliver it, it will not make any difference.

In each of the 11 planning teams that have transferred to the council, there is a team dedicated to the development plan, with one principal officer in charge of the plan. That is at quite a senior level in the planning team that has gone across. I am hopeful that councils will certainly have every opportunity to have the resources there and to take this new, better and faster process forward and actually deliver plans much more quickly.

Lord Morrow: As regards flexibility in the new plans, for instance, you get an area plan, a district plan or whatever it might be now under the new definition, and you get phase 1 and phase 2 in it, and perhaps the planners come back and say that, well, phase 1 is not used up — there is another 40 acres or 200 acres in phase 1 that is still not used — yet phase 2 would be more appropriate. Will there be flexibility in all this to move around on that? I am not talking about abuse, because we are opposed to that, but a degree of flexibility that allows sensible forward planning and our towns, villages and cities to develop in a more comprehensive way.

Mr Kerr: Absolutely. That is a key and incredibly important point. Again, that was another failing of the previous system, in a sense, because that has not really worked very effectively. We are doing two things to address that. First, we are taking a new approach to call for sites instead of zoning a whole lot of sites, say, for example, in phase 1, which are actually not realistic because, in reality, no one is going to bring them forward. They are maybe in the ownership of someone who does not want to sell them and develop them or something like that. A much more realistic approach is being taken to that sort of phase 1 to identify what is actually available.

Secondly, we will also do what you are saying, which is the annual monitor and, at the minimum, a five-year review, in which you actually look and say that we have ended up not doing as well as we thought we would and so we would need to bring more land in or even that we have done better than we thought we would, so we do not need to bring additional land in yet, and so on. If it transpires that sites are not used for a number of years, they can be taken out. If a site is just not coming forward any more, we will bring forward a site from phase 2. That flexibility that you are talking about is there.

Lord Morrow: On the point about taking a site out, I remember that a whole legal wrangle started. If I remember rightly, I think that the planners felt that once land was zoned for development, they might run into some legal problem with actually dezoning that land and rezoning other land. Is there the potential to run into that sort of scenario again?

Mr Kerr: You would need to have very good reasons for doing that. In other words, you need to be able to demonstrate that there is a significant difficulty in the area and with that particular site. Whilst I think that that was probably at the heart of some concerns, the legal problems that the planning process suffered with were, in effect, challenges around the strategic environmental assessment of plans. That was the whole legal challenge, if you like, to our plans, although I think that you are quite right that, in some cases, it may be that, at the heart of that, there was concern about dezoning. Dezoning is possible. It has been done. It is even part of our old planning process.

Lord Morrow: If an individual wanted land to be dezoned, never mind the planning authority — I think that there are two bodies at play here — is that potentially possible?

Mr Kerr: That is possible through the independent examination process. People can write in and say that a particular site is not a sensible site to be developed for that plan for the following reasons. In other words, they are saying that it is not sound for the plan to go forward on the basis of that particular area for development and that actually this would be a better way forward. Then, that can be fully considered and addressed.

Lord Morrow: What about substitution then?

Mr Kerr: Those are the points that a lot of objectors' representations would probably make. They may well say that the development for this particular town has gone in the wrong direction and that it should go over here; it is not sustainable; it is not sensible; those sites will not be available; and that they will bring more information to the table, saying that they believe that, in fact, the town should develop as follows and suggesting other sites. It must all be couched around the soundness issue.

Lord Morrow: What did you say about enforcement? Well, I know what you said, but I am not sure what you said when I asked the question. I know that you said that it is going to be quicker. I think that you said that, did you not? I look forward to enforcement actually being quicker.

The Chairperson (Ms Lo): This is being recorded by Hansard, Lord Morrow.

Mr Kerr: Councils are free to take an approach to enforcement that they think is appropriate. The fixed penalty notices that we are talking about today are another tool in their armoury that they can use to work very quickly. Fixed penalty notices work fast. They are not like the existing process.

Lord Morrow: They work fast when they are applied, but it is about getting it to the stage of saying that there is a fixed penalty notice. Sometimes, getting it to that stage, Angus, is quite tortuous. We are talking about years sometimes.

Mr Kerr: Well, hopefully not for fixed penalty notices, but, yes, enforcement is difficult. It can be time-consuming.

Lord Morrow: It is important sometimes, too.

The Chairperson (Ms Lo): Are there no more questions?

Mr Boylan: Just before we leave that: whilst I welcome SPZs, I do not want the message to come out of here today that they will take over from area plans and everything else, because a good body of work has already been done there. I appreciate the questioning by Lord Morrow because he has teased out a lot of good things about zoning, dezoning and everything else. There is a body of work there. There is an opportunity for everybody to become involved in the process. I do not want the message to come back from this debate today that SPZs will take over from area plans. That is not the intention of them.

Mr Kerr: Not at all.

Mr Boylan: It is just creating an opportunity — as regards what Lord Morrow said about phase 1 and phase 2 — if there is an issue. Primarily, the area plans or district plans will be the main thoroughfare and driver for land use.

Mr Kerr: Absolutely.

The Chairperson (Ms Lo): The SPZs are generally quite small. They are not big areas. Is that right?

Mr Boylan: Yes.

Mr Kerr: Absolutely.

The Chairperson (Ms Lo): OK. Well, there are no more questions. I am sure that we will see you again when the SL1s come along. All the best. Thank you.