Official Report: Minutes of Evidence

The Chairperson (Miss McIlveen): I welcome Angus Kerr, the chief planner and director of regional planning; Irene Kennedy, head of planning policy legislation branch, who is attending via StarLeaf; and David Doherty from planning policy legislation branch. You are all very welcome to today's meeting. Angus, do you want to make an opening statement? Then we will follow up with some questions.

Mr Angus Kerr (Department for Infrastructure): Thank you, Chair. Yes, that would be great. Thank you for inviting us here today.

You will have received the SL1, which sets out the Department's intention to bring forward a package of changes to planning permitted development rights. Hopefully it will just take us a little bit of time to run through the four key areas of the changes.

By way of background, the Planning (General Permitted Development) Order (Northern Ireland) 2015 (GPDO) sets out the types of development that can be undertaken without requiring a planning application — that is, permitted development (PD). These are referred to as permitted development rights and often relate to minor building works that have minimal impact to amenity and the environment. The schedule to the GPDO contains a series of parts, each of which sets out the various classes of development that can be undertaken without the need for a planning application. Each part has quite detailed conditions and limitations on what constitutes permitted development under the different classes of development. It is important to bear in mind, in our conversation today, that if development is not captured by these permitted development rules, that simply means that it needs a planning application; it does not mean that the development is unacceptable. It just goes through the planning application process and may be approved or refused.

The process that we have been involved in for these changes has been more elongated than usual. We consulted way back in 2016. We had two consultations. In May, we consulted on a range of proposals for permitted development rights for electronic communications code operators, mobile phones, that sort of thing; non-domestic roof-mounted solar photovoltaic panels, which are basically solar panels; extensions to shops and financial and professional services establishments; and electric vehicle charging points. A second consultation then took place in December 2016, wherein we consulted on permitted development rights for mineral exploration. While the Department has carefully considered the responses to the consultations, decisions on whether the changes should be taken forward were held pending the return of a functioning Assembly and a Minister for Infrastructure.

As you are aware, on 5 October, the Minister announced that she wanted to bring proposals to the Infrastructure Committee for scrutiny to change planning rules that she believes will benefit business and the environment. In summary, the order will amend the GPDO by adding three new classes of development to Part 3, which deals with minor operations, to expand permitted development rights to allow electric vehicle charging points; by amending Part 16, which deals with mineral exploration, to remove permitted development rights for petroleum exploration; by substituting Part 18 of the schedule to expand permitted development rights for mobile network operators; and, finally, by amending Part 34, which is the part on shops, financial and professional services establishments, to allow larger extensions to premises under PD. The order also includes some other small technical amendments and so on.

You will note that the Department is not taking forward changes to permitted development rights for the non-domestic roof-mounted solar panels at this time, and that is because the Department is unsure that the permitted development regime can adequately address the health and safety concerns raised by the airports and considers it unwise to proceed. Those concerns were raised as part of the consultation. The Department currently believes that the safest option is to ensure that these developments remain subject to the submission of a planning application.

Running through the four areas, the order of them is slightly different from that in the SL1. Apologies for that, but hopefully they are the four key headings in the SL1.

I will start with mineral exploration and removing the PD rights for oil and gas exploration. Members will remember that a call for evidence and subsequent public consultation which took place for these proposals was really prompted by the controversy over the exploratory drilling at Woodburn forest in Carrickfergus. At the time, we consulted on two options to remove permitted development rights for oil and gas exploration. Option one was basically to remove all PD for exploratory boreholes. Option two was to remove PD rights for drilling of boreholes for petroleum exploration, but to continue to allow PD rights for development preparatory to petroleum exploration. Essentially, that would mean that some, more minor drilling of boreholes could be allowed, for example, for groundwater monitoring, seismic monitoring and locating and appraising the condition of mines. We also consulted on three other minor amendments to the minerals PD rights at that time: to extend the 21-day period provided for councils to issue directions restricting permitted development rights to 28 days — to give a little bit more time for that; to introduce a new height restriction of 15 metres for mineral exploration permitted development; and then, finally, to provide a relevant period to ensure that permitted development rights could not be exercised until the council had fully considered the proposed development and decided whether to remove or restrict the rights.

The Committee has been provided with the draft analysis of responses to the consultation. In summary, the Department received quite a large number of responses. There were 281 responses, with 98·9% of responses in favour of removing permitted development rights for petroleum exploration. Consultees were asked whether they would prefer option one or option two. Some 94·5% preferred the option one approach, which was to remove PD for all exploratory boreholes for oil and gas. There was also general support for the three minor amendments that I mentioned earlier. The Department, therefore, is proposing to bring forward amendments to the GPDO in line with option 1, which is to remove permitted development rights for the drilling of all boreholes for petroleum, oil and gas exploration. That will bring Northern Ireland in line with the position in Scotland and Wales. It also lines up with the consultation responses received. The Department is also proposing to bring forward the three technical amendments that I mentioned, but the Department is proposing that the height restriction for any structure assembled should be reduced from 15 metres to 12 metres. That change will keep visual impacts to a minimum, taking into account the nature of the development, its temporary duration and the fact that any structures will be removed either within or at the end of the four-month temporary period that you get for permitted development rights for minerals explorations. That also aligns with the position in Scotland and Wales.

I will turn now to the proposal to expand PD rights for mobile network operators. Improving our telecommunications and digital infrastructure is vital to Northern Ireland's economy and society. We all recognise that, and it has come to light more so recently with the pandemic. Planning has a crucial role to play in supporting delivery of that infrastructure and facilitating appropriate proposals that deliver a high level of digital connectivity whilst ensuring that provision of such infrastructure is sited and designed to keep environmental impacts to a minimum. Current PD rights provided to electronic communications code operators in Northern Ireland are significantly more restrictive than those currently provided in GB and the Republic of Ireland.

The Department consulted on a range of proposals on permitted development rights for telecommunications network development, including a proportionate increase in overall height and width of existing masts; apparatus and antennae to be mounted on buildings; an extension to the period for emergency temporary apparatus from six months to 18 months; an extension for the installation of new or replacement telegraph poles to include conservation areas, AONBs and areas of special scientific interest (ASSIs); and an extension for ancillary equipment housing, subject to limitations, to include installation in conservation areas, AONBs and ASSIs, national parks and listed buildings, where listed building consent has previously been granted. Those proposals would bring Northern Ireland closer to the positions in the other jurisdictions and are aimed at enhancing the ability of operators to undertake necessary works, such as replacing, altering or extending an existing mast or installing a new antenna on a mast or building as quickly as possible, without having to go through the planning process.

At the time, the Department received 21 responses to the consultation. In general, respondents were in favour of the proposals, although some concerns were raised by the airports around airport safeguarding areas. As a result of that, the Department undertook further research and work and engaged extensively with the airports. Following that engagement, the Department proposes to include an extra provision in the legislation aimed at improving airport awareness of potential hazards. This proposed condition broadly aligns with a similar provision in Scotland and requires mobile operators to notify the airport at least 28 days before development begins, where the proposed development falls within the defined aircraft safeguarding area of an airport.

Subsequent to our consultation, a further issue arose in respect of compliance with the European electronic communications code directive, which is an EU directive setting regulatory frameworks for telecommunications. Article 57 of the directive refers to the planning rules surrounding small area wireless access points and requires these access points to be exempt from any individual town planning permits. Small area wireless access points are unobtrusive, small, low-impact antennae, which are often no larger than the size of a standard fire or burglar alarm casing but are potentially very beneficial to the roll-out of 5G technologies. Currently, in Northern Ireland, unlike the other jurisdictions, those small area access point antennae installed on buildings are not permitted development. However, the Department is satisfied that the amendments that we are talking about here today and definitions of small antennae will meet the requirements of the directive. The implementation deadline for compliance with the directive is 21 December 2020.

It is recognised that telecommunication and digital infrastructure is a fast-moving technological area, and we consulted on this back in 2016, so I anticipate that we as a Department will probably return to this area, and, indeed, return to you as a Committee, because there are already other changes and developments in this area that probably need to be addressed.

Shops and financial and professional service establishments is the next area that I want to look at briefly. The Department is committed to removing unnecessary legislative requirements and lightening the regulatory load for shops and financial and professional services where appropriate, and to bringing such provisions into line with other jurisdictions. This is even more important at the moment as businesses cope with the ongoing pandemic. The Department therefore proposes amending the existing permitted development rights for extensions to shops and financial and professional service establishments by increasing the original permitted development floor space from 25% to 50% of the original floor of a shop or one of these services or up to 100 square metres, whichever is the lesser. In addition, the regulations will introduce permitted development rights for extensions to loading bays where the size of the original loading bay would not be increased by more than 20%. The full range of existing safeguards and limitations to these PD rights will be retained, including that they do not apply in sensitive areas such as conservation areas, ASSIs and world heritage sites, or within curtilage of listed buildings, unless consent is otherwise granted.

The majority of respondents to the consultation did not voice any objections to the proposed increases in permitted development rights for this category. Concerns regarding the potential implications in existing sensitive areas are allayed by the retention of the existing safeguards and limitations that I have mentioned. Overall, the proposals will make it easier for business owners to make improvements to encourage expansion and innovation. This will be particularly helpful in relation to the current pandemic, while maintaining safeguards, protecting neighbours and ensuring that development is of appropriate scale and character.

Finally, as I am sure you are probably glad to hear, the Department is also committed to removing unnecessary legislative requirements and lightening the regulatory burden for electric vehicle charging points. This is important as we seek to reduce carbon emissions and address wider climate change challenges. The Department consulted on new permitted development rights for the installation of electric vehicle charging points in off-street parking areas only, similar to those that applied in England at the time. These proposals were a volume limit of 0·2 cubic metres for wall-mounted charging points and a height of 1·6 metres for free-standing charging points. There was strong support for the consultation proposals. However, three additional points emerged. One was that the Department should facilitate the installation of the new rapid charging points, which need to be slightly higher than 1·6 metres. The second was that PD rights should allow the replacement of existing on-street charging points, which were not covered initially in the consultation. There were also some concerns raised about the impacts of proposals on world heritage sites and conservation areas.

The Department agrees that the move to rapid charging points should be facilitated within PD rights where possible. Therefore, it is proposed to allow free-standing chargers in car parks of up to 2·3 metres in height in non-residential locations. To protect the character of residential areas, a height limit of 1·6 metres will apply in residential areas. In addition, the replacement of existing on-street charging points is allowed, up to a height of 2 metres. It is also proposed to allow a volume of 0·2 cubic metres for wall-mounted chargers in car parks. The Department agrees that it is important to protect world heritage sites and conservation areas. However, not all elements of world heritage sites and conservation areas will necessarily contribute to intrinsic value and character. Off-street car-parking areas tend, typically, to have lower visual amenity value and will often already contain items such as parking meters, which are similar in size and scale. Therefore, the Department considers that it is unlikely that these charging points will have a significant negative impact on the character of a conservation area or world heritage site. The Department proposes that these rights should apply in the car parks in those areas.

Overall, I think that these proposals will assist in encouraging the growth of the electric vehicle charging market by making it easier to provide recharging infrastructure by removing regulatory barriers. This in turn will reduce carbon emissions, promote use of renewable energy and contribute to the wider climate change and green carbon-neutral agenda.

Thank you. Sorry that that was a bit of a run-through; I wanted to cover the four areas. I am happy to take questions now.

The Chairperson (Miss McIlveen): Thank you. That was very helpful. Obviously, this consultation took quite place some time ago. I remember quite well the issues in relation to Woodburn. It created a lot of attention, with protesters and so on involved in that. I am not surprised that there were 281 responses, but I am disappointed that there were only 21 responses to the other consultation. I suppose that it is very difficult to anticipate how many people are going to respond to various issues, and there will be things that will exercise some more than others, but some changes have been made following that consultation. Did you give any consideration to going out to consultation again on any aspects of that?

Mr Kerr: We did. We gave quite a lot of consideration to that, if I am honest. The difficulty would have been that you would have lost the policy development work and the changes that we had already consulted on, and you would have been going back, starting from scratch again and reconsulting on a range of new proposals. It was felt that the oil and gas issue, in particular, was a stand-alone, one-off issue and that it could be dealt with and addressed. With the telecoms one, we thought that it is a fast-changing area involving technological change, and industry, for example, was pushing us to go further and making the point that the other jurisdictions had gone a little bit further already. At the same time, industry was concerned to get these changes on the books as quickly as possible, and we were of that view as well, in that, if we are going to make changes, let us make them, and then we can go back to do some further work in the future.

There is the issue of electric vehicle charging points as well. The other thing to say about this is that we were able to update some of the changes that we have made. For example, one of the points that came out of the consultation at the time about replacing the existing infrastructure is even more relevant now, and that was not covered in the initial consultation. There was also the issue of the rapid charging consoles that are now coming through, and being able to include those.

On balance, we felt that it was better to press on, get these changes made and reap the benefits of them across the board, and then continue to work. Permitted development rights are never-ending. It is like painting the Forth Bridge. People are constantly wanting changes in all the different areas, either to make things more flexible or, as with the oil and gas issue, to pull things back.

The Chairperson (Miss McIlveen): You mentioned telecommunications, and obviously there are a wide range of views on that. That is not for us to get involved in now, but, clearly, there are people who have genuine concerns, particularly those living in the proximity of a mast. If you are getting to the stage now of increasing the height and also the width — and it is going to happen within permitted development rights — then that will cause genuine concern for them. I know, from reading the responses on environmentally sensitive areas and on areas of outstanding natural beauty, that there are concerns as well. Do you feel that you have adequately addressed those issues?

Mr Kerr: Yes, we do. The permitted development right itself has always had, and will continue to have, the notification requirement, which is unlike most of the other areas of development, where you can actually just go ahead and develop if you feel you fit within the rules, whether it is agricultural, domestic extensions and so on. You can just go ahead and build it. You can go to council and get a certificate of lawful use and development to confirm it, but, for telecommunications — and for minerals, actually — there is a requirement that you must notify the council in advance, and. For the minerals one, we are extending that to 28 days, but that is still in place for the telecommunications one.

There is a genuine opportunity there for the councils to assess whether or not there is an issue with a proposal and whether or not it will benefit from removing the permitted development right and having a planning application coming in on that, so allowing for further consultation. Of course, there is still no permitted development right for a new mast. It is for the expansion of masts or to make them a little bit higher, and they are all controlled and limited by the rules that apply. I think that, on balance, we have got it about right. We are still behind some of the other jurisdictions, so in no way could we be seen to be trailblazing here and being very flexible and even giving concern to environment and community.

The Chairperson (Miss McIlveen): This is a rolling piece of work. Can you give us an idea of what is coming next with regard to consultations on permitted development?

Mr Kerr: We are trying to get this over the line first, and we have been lobbied about further changes on the telecommunications front. We have not done an awful lot of policy development work; we just have not had the time for that. There are no concrete plans at the moment to bring through anything else. I am just looking at Irene in case I am missing anything. We get lobbied across a number of areas over time, but there is nothing anywhere near as advanced as this at this stage.

Mr Boylan: Angus, you are a happy camper; your team is going all right at the minute. I have a couple of questions. I go back to what the Chair said — it is important — about the responses to the first consultation. I recognise that the second one was specific, but it is something that maybe we as a Committee —. I see that the councils responded to it. They deal with a lot of community groups, and you like to see that side of things. Maybe there is something that we can learn about trying to get the message out right across the board. There are a couple of things that I want to ask about. In terms of the minerals and the issue of PD, precious metals and other fossil fuels, there is nothing in response to that. Obviously, precious metals are a slightly different jurisdictional issue. Do you want to comment on anything in relation to any of that?

Mr Kerr: We consulted on the removal of PD rights for oil and gas exploration, so energy minerals, really. We did not include the non-energy minerals — precious metals, quarries and that sort of thing — for lots of reasons, but mainly because the size and scale of the exploratory developments are massively different. There is nothing at all of the scale and nature of Woodburn, for example, for that sort of thing.

Mr Boylan: What were the barriers to the electric charge points? Obviously, we expect an uptake because we are trying to move towards greener technologies and everything else. Were the barriers only to do with height, or was it specific locations?

Mr Kerr: It was a number of things. There is size; the new units as they come through are bigger. There is also the point that, initially, the right was built in for statutory undertakers to introduce electric vehicle charging points. The ones that you see, which have been around for quite a while, on the streets of Belfast were all erected under that regime, but that has now gone over to ESB, so they are no longer covered for that. We are building in a permitted development regime as part of this to allow them to be able to do that. There are just bigger machines to bring forward the rapid charging.

Mr Boylan: You mentioned AONBs. We are trying to encourage people to move to different technology, but also to use those places. There are sensitivities around that, but you have indicated that there are areas in which you can facilitate that. There need to be as we move on, because those areas have to be supported once we get through COVID. The issues that I see here in relation to the —. There are three specific points that I want to make. The issue with telegraph poles in sensitive areas was mostly about replacement, but do you foresee a situation where there will be an increase in new poles?

Mr Kerr: I am not aware of that specifically. I am looking to David and Irene. There has probably been a little bit of lobbying about that. It is just replacement.

Mr David Doherty (Department for Infrastructure): The world heritage site and sites of archaeological interest will remain; it is just about the installation of new overhead lines, supported by existing poles. That will remain in those two areas. There are some wider ones in the other areas.

Mr Boylan: I asked because we know, as we move forward, there will be questions about what we want to progress. There may be different things happening, but I just wanted clarity on that.

The other issue is the airport question. Some issues have been raised about that. Are the airports happy with some of the discussions that you have had about those changes? Are they happy enough?

Mr Kerr: Yes, they welcome the requirement that we have built in for them to be notified if it is in a safeguarding area.

Mr Boylan: The final point — I know that others want in — is about the 28 days' notice for the councils. Is that enough, or are you thinking of extending that?

Mr Kerr: We are content with that. It is probably back to the point that you made at the start about the councils. I have talked quite a bit about this in here before: with the new two-tier system, there is a requirement on us in the Department to engage much more closely with councils.

As you know, I meet the heads of planning regularly, and we are planning a bit of engagement around those particular permitted development rights so that the councils fully understand them. In the past, if I am honest, the system probably did not work as well as it should have. We are going to put together a little bit of guidance for them that goes along with that, particularly around telecommunications. We want to make sure that they are very clear about what their responsibilities are, particularly in relation to airport safety and so on.

That is a good point, and we will be doing that and making sure that they are fully aware of it and take it seriously and assess those things within the 28 days, now that they have a little bit longer for —.

Mr Boylan: This is a good opportunity. We are doing the review of planning, but some of the things that arise from the system over the last five years have started to roll out and there are opportunities like this one. The more people who get involved in the consultation, the more they will be able to have a properly informed view of what is going on. The councils have a role in that too.

Mr Muir: I have two questions to ask, the first of which has already been picked up by Cathal. We have talked about gold and other precious metals, but what permitted development rights are already in place for those other fossil fuels and for the extraction of lignite? Why were they not included in the consultation? We declared a climate emergency in this place earlier this year, and the fact that there will be permitted development rights for the extraction of fossil fuels is a concern.

My other question is about telecomms, but perhaps you would answer the first one.

Mr Kerr: OK. I will turn to David in a moment because he can go through the existing development rights; they are pretty complicated. David can give you a sense of what they are for minerals development. We did not consult on removing the permitted development rights for exploratory drilling for minerals because it is a very different beast from the exploratory work that goes on for oil and gas, which are massive developments. When I saw Woodburn, I was horrified to think that it might qualify for PD. That was a debatable issue at the time. We wanted to move very firmly away from that. It would involve about a hectare of land and massive drilling rigs that would be there for quite a long time and drill down to very deep levels, whereas non-energy minerals development involves installing small rigs that are driven in by a 4x4 jeep. They are put in fields and are not that big. David knows how far down they go, but it is not very deep.

Mr Doherty: They do not go anywhere near as far down as a petroleum rig. The call for evidence that guided the consultation raised the other side of the minerals issue. At the time, the Department answered and gave reasons why we were not considering those minerals and only going for petroleum. The existing rights are only temporary; they are there for four months, and they allow for drilling bore holes and carrying out seismic surveys or making other excavations. It is a temporary permitted development right. Consideration was given, and exploration for other minerals is on a much smaller scale.

Mr Muir: I wanted to ask you about the changes to permitted development rights around telecomms. Will those bring us into line with the rest of the United Kingdom or is further work required?

Mr Doherty: England has just finished a further consultation and will be instigating further changes. It brings us into line in certain aspects, but there are still differences in other aspects. When we consulted, it would have brought us in line with Scotland at that time, although Scotland has moved a bit further since then. It brings us to the same place in some instances and closer in other areas.

Mr Muir: That is, potentially, something that you are going to have to look at.

Mr Doherty: Telecomms development will be ongoing; we have to look at what is happening all over.

The Chairperson (Miss McIlveen): Hello, Martina. Do you want to ask a question?

Ms Anderson: I was trying to unmute. Chair, you asked about the rolling review programme of permitted development rights in the planning system. We do need to return to that review because, as a Committee, we need to know about the other permitted development rights. I know that the question was not answered, but we can return to it.

I will pick up on the mining question. David, I am conscious of what you said, but a four-month permitted development window is far too long. As Andrew has reminded us, if we needed to be reminded, given that we are in a climate emergency, a huge amount of damage can be done in four months. I am concerned about that, and I would like to see the issue being brought forward in the rolling review that has been mentioned.

Mr Kerr: We can look at that, going forward, for other areas of permitted development rights. Not only is it limited to the four months, but there are strict requirements for reinstatement, and David will keep me right on this.

Mr Doherty: Yes.

Mr Kerr: Do not forget that this is just exploration. No permitted development rights applies to exploitation or extraction. It is purely for exploration. Only small amounts of drilling happen in this process.

Ms Anderson: Indeed, we have had exploration and know the damage that it can do. When it moves on to exploitation, one could argue, and I would concur, that there will be further damage. I am concerned about the exploration.

I will pick up on a point that was mentioned by the Chair and Cathal, and probably other members, we need to try to maximise the engagement with these consultations. We have had 21 responses. Woodburn was a particular issue that was exercising people, and we had hundreds of responses in that case. However, that is the sort of response rate that we need. What plans are in place to try to reach out to people, and is there a role for councils? We need to try to maximise the engagement with these consultations. Do you have plans in place to maximise the consultation response?

Mr Kerr: Yes, it is a key area for planning generally, not just for the consultations on permitted development changes. It is a general issue for the whole planning piece. The Minister recently announced a new partnership to look at community engagement in the planning system and how to improve that. The Department is looking at that area. How best to stimulate engagement with some of the more technical planning-related issues is a constant problem.

You are quite right; a lot of people were interested and involved in Woodburn, and we had a brilliant response. However, only planning consultants and planners tend to engage with some of these areas. The Department needs to think a little bit more innovatively about how we engage with people. Certainly, it is something that I am very keen to push forward, and it is something that will come out of the work we are going to do on improving engagement with planning in general.

Ms Kimmins: Thank you, Angus and David, for the update. Do councils have the power to remove permitted development rights? Do you know whether councils often use this power and if they record the use of the power? Under what criteria are councils able to remove permitted development rights, or is it at their discretion?

Mr Kerr: It is not a massively used tool. Since the transfer of planning powers in 2015, there have been a few occasions where councils have used it for different aspects of permitted development rights. I am looking at Irene for confirmation of that. We know that because there is a role for us in confirming that process when it has been done. It is not a massively used power, and it might be something that councils could look to using a little bit more as we go forward. For example, it was used by Belfast City Council recently in a conservation area, where the council removed permitted development rights for domestic extensions to protect the integrity of the conservation area. It has been used with minerals as well. Irene, did Fermanagh and Omagh District Council do that a couple of years ago?

Ms Irene Kennedy (Department for Infrastructure): Yes, Angus, that is correct. In two conservation areas in Belfast — Malone Park and Adelaide Park — the council removed permitted development rights, as did Fermanagh and Omagh District Council in relation to minerals exploration.

Ms Kimmins: Thank you.

Mr K Buchanan: I have a simple question. This legislation relates to mineral rights on land. Who controls the water, be that the edge of the coast or Lough Neagh? Is there permitted development there? Who controls development there? Do you?

Mr Kerr: The marine licensing regime covers anything that is happening off the coast, and Lough Neagh is covered by the terrestrial planning regime, so these permitted developments would apply.

Mr K Buchanan: Thank you.

Mr Beggs: I support the removal of the permitted development rights for petroleum exploration. You mentioned Woodburn. Any council or planning authority that would grant permission for exploration or a drill rig in the catchment area of a reservoir would be laughed at and mocked, frankly. There would be a complete lack of protection for the water supply. I could not see that happening had it not been for this case where they had the permitted development rights to proceed. It is essential that that is removed and not repeated anywhere else in Northern Ireland. I am supportive of what you are doing.

The Chairperson (Miss McIlveen): There are no more questions. Thank you for attending this morning and for sharing the information.

Mr Kerr: The joys of permitted development. Thank you.