Official Report: Minutes of Evidence

The Chairperson (Ms Lo): We welcome Angus Kerr, Simon Kirk, John Conlon and Brian Gorman. Do you want to go ahead and give us your briefing please?

Mr Angus Kerr (Department of the Environment): OK. Thank you very much for inviting us back to the Committee, Chair. I am joined today by Simon Kirk, Brian Gorman and John Conlon, as you noted. We are here to speak to the Committee on the proposed subordinate legislation, the Planning (Amount of Fixed Penalty) Regulations (Northern Ireland) 2015. You will be aware that the Department proposes to make the statutory rule under powers conferred by sections 153(9), 154(9) and 247(1) of the Planning Act (Northern Ireland) 2011 and that the statutory rule is subject to a draft affirmative resolution procedure in the Assembly. As such, it is the only piece from the broad range of phase 1 and phase 2 subordinate legislation under the 2011 Act that remains to be made. I want to record our thanks that you have agreed to further consider the SL1 for the regulations today, as we aim to have them in place as soon as we possibly can.

By way of background, I advise members that the current legislation allows for the issuing of an enforcement notice or a breach of condition notice for breaches of planning control. If the offender fails to comply with those notices, the current alternatives are court proceedings or the taking of direct action to remedy the breach of planning control. The system of fixed penalty notices introduced by the 2011 Act is therefore an additional enforcement measure and an alternative, at the discretion of a council, to potentially lengthy and costly court cases. Where a council might decide to issue a fixed penalty notice, it would give the offender the opportunity to pay a penalty as an alternative to prosecution.

Under the new two-tier planning system, councils will be the local planning authorities responsible for drawing up their own development plans and making the vast majority of planning decisions. Councils will also be responsible for enforcing against all breaches of planning control in their areas. To assist councils and to strengthen the enforcement function, the regulations merely set out the level of fixed penalty and propose a penalty of £2,000 for failing to comply with an enforcement notice and £300 for failing to comply with a breach of condition notice. Sections 153 and 154 of the 2011 Act provide for a 25% reduction of the amount payable when a fixed penalty is paid within 14 days.

The regulations are intended to speed up and strengthen the approach to enforcement action against those in breach of planning control. Those affected will be a person, either an individual or a company, who has committed a breach of planning control and has failed to rectify it by complying with the requirements of an enforcement notice or breach of condition notice. Where such a person has failed to rectify the breach, in accordance with the requirements of an enforcement notice or breach of condition notice, they may, at the council's discretion, be served with a fixed penalty notice. The regulations aim to make the fixed penalty notice system operative, to strengthen enforcement powers, to be a deterrent and to provide councils with an additional, discretionary enforcement tool. Through having a wider range of enforcement measures available, the council may respond appropriately and proportionately to a breach of planning control.

Members will recall that the proposed amendments were part of the phase 2 consultation and, overall, there was general support for the introduction of the fixed penalty notice as a discretionary enforcement tool and for the proposed regulations that set out the penalty levels. The Department recognises that the penalty amendments may be viewed as low for more significant breaches. However, in such circumstances, councils may decide that prosecution through the courts would remain the more appropriate course of action to take. That will be a matter for an individual council in assessing the nature and scale of a particular breach of planning control and selecting the appropriate enforcement measure available to them. As I said, the use of fixed penalty notices is discretionary and councils are not required to use them in any particular circumstance.

As I mentioned earlier, the fixed penalty regulations merely set out the amounts of the fixed penalties for failing to comply with an enforcement notice or a breach of condition notice. They propose a penalty of £2,000 for failing to comply with the enforcement notice and £300 for a breach of condition notice. The levels are viewed as being appropriate for the minor breaches that councils might use fixed penalty notice powers for. Through having a wider range of enforcement measures available, the council may respond appropriately and proportionately to a breach of planning control.

As I indicated earlier, the Department aims to have the regulations made as soon as possible. Drafting of relevant guidance and information on fixed penalty notices is well under way as well. We are happy to take any questions that members might have on them.

The Chairperson (Ms Lo): Thank you, Angus. I think that it is to be welcomed. I know that, in south Belfast, a lot of criticism is about a lack of enforcement of breaches and enforcement officers not knowing what has happened when enforcement notices are served and just not complied with. It is to be welcomed. I will let other members come in. Does anybody have any questions on it?

Lord Morrow: I will ask a question, since no one else wants to comment. What guarantee do we have now that the enforcement is going to be differently administered from how it was in the past? We have the legislation, but legislation does not do enforcement.

Mr Kerr: Obviously, the legislative regime is set out in the 2011 Act, which increased fines and so on, as the member will be aware. I think that passing on enforcement powers to councils will be a very positive thing for enforcement, because it brings it together and links it with building control, where there is much more hands-on knowledge of development — when it is due to take place, when it starts, when it completes and so on. What we found when we were looking at reform and transfer in other jurisdictions is that the planners and the building control officers work very closely in councils where they already have a two-tier planning system. They are in close contact, so building control can say, "Listen, there is something going on over here. We are not aware that it has planning control. It may have building regulation cover but not planning and so on", and vice versa. There is a very strong expectation that that will lead to a much better, more efficient and effective approach to enforcement.

Lord Morrow: The £2,000 penalty is an on-the-spot fine; is that right?

Mr Kerr: That is correct. That is —

Lord Morrow: That is in addition to what?

Mr Kerr: The normal fine is between £30,000 and £100,000, which was brought in by the Act, subject to prosecution.

Lord Morrow: But that £30,000 to £100,000 was not often applied, was it?

Mr Kerr: When you are prosecuting, that is the range that is available for a breach. This is a different alternative. A council or planning authority could go for the fixed penalty notice for an enforcement notice that has not been complied with, and it would be a £2,000 charge. The implication here is that it would be for more minor types of breaches.

The Chairperson (Ms Lo): But they can still prosecute.

Mr Kerr: Yes.

Mr A Maginness: After the fixed penalty notice has been served and then fulfilled by the person paying the fixed penalty, what then happens in terms of enforcement?

Mr Kerr: If the breach is still a concern — if it is still there and has not been rectified — there is an opportunity for councils to take further action under their enforcement powers if they deem that fit.

Mr A Maginness: I am just wondering what the purpose of the penalty is, then. Is the penalty simply to punish the offender? What other action can be taken after that payment?

Mr Kerr: The system in Scotland is relatively new, and it has not been used hugely, but the advice coming back from there seems to be that it works very effectively as a deterrent. It is served for minor breaches. Rather than paying the fine, developers will fix the breach, because it is for a minor level of breach. It would not be used for something —

Mr A Maginness: It is really a threat hanging over the developer who is in breach.

Mr Kerr: Yes.

Mr A Maginness: Does the enforcement notice continue on irrespective of the penalty being discharged?

Mr Kerr: No.

Mr A Maginness: Is that an end to the enforcement?

Mr Kerr: If you wanted to continue the enforcement, the enforcement notice needs to be withdrawn and another one would be served.

Mr Brian Gorman (Department of the Environment): A fixed penalty notice can be issued in relation to a particular step in the enforcement notice; that element where the breach is addressed and that element of the enforcement notice. If it is one step of the enforcement notice, then the other steps could be subject to further fixed penalties or prosecution.

Mr A Maginness: So there could be subsequent enforcement notices.

Mr Gorman: There could be subsequent fixed penalties for each individual step in the enforcement notice.

The Chairperson (Ms Lo): There is one argument, as you said, which was made by people in the consultation, that your penalties are maybe not high enough. For example, a builder who chops down five trees is slapped down to pay £2,000. It is worth their while to chop down trees when they can build an extension or a bigger house.

Mr Gorman: The issue is that this is a discretionary enforcement, so where a council is of the view that the offence is significant, then we believe that the normal course of action through court prosecution would be the relevant one.

Mr Boylan: Thanks once again, Angus. We are getting near the end of the process of the transfer. I am sure that many of us who have been dealing with planning in councils down through the years have come across a lot of situations. We made the case during the passage of the Act that there should be a better link between the authority and the building control officer. I was going to ask you about detection and all that. Do you see that being a new role, or is that going to be a more enhanced role, especially in cases of breach of condition? There are some other major ones where it is built and there are problems. Do you feel that it is going to be a better working relationship that will enhance that?

Mr Kerr: Absolutely, I do. As I said, that is a major gain for the new system. In enforcement, there will be much more effective control. In many ways, the old unitary system under DOE was quite reactive and you relied on people to phone up and let you know that breaches were taking place. This will allow us to be more proactive. It is for councils, obviously, to take this approach, but the potential is there for councils, if they do it right, and they link up the two, to be much more proactive.

Mr Boylan: Will the measures of the fines be a deterrent from the start? If you have to do a further prosecution or if it goes to prosecution that is a different matter, but it is about getting the message out that those fines are coming down the tracks.

Mr Gorman: Those earlier points of intervention by building control were picked up very early in the reform proposals by councils, and we may see them taking those up more proactively than we did previously.

Mrs Overend: Thanks for all your responses so far. I want to flow up on whose responsibility it is to get the information out into the public domain. Is it yours or the councils'?

Mr Kerr: I suppose that it will be a combination. We are responsible for the legislation. We have already, as you know, undertaken quite a bit of consultation. We have liaised closely with the councils. In fact, they have been the chief contributors, as you can understand, to the consultation. We have already had a programme of guidance and so on to do with the transfer of powers. We are continuing that. We will be bringing forward further advice and guidance and making it publicly available. We will also continue to liaise with councils and encourage them to develop appropriate enforcement strategies, among other things, in relation to their new functions and to make those publicly available and to consult on them and so on. The councils are keen to do that; they would say to us that they work much better and more closely with their local communities, which, intuitively, is right. They are already doing that sort of thing in any case.

Mrs Cameron: Thank you for your presentation. Can you talk us through the rationale behind the provision of the 25% reduction of the amount payable where the penalty is paid within 14 days? Is it purely administrative to save on other costs?

Mr Kerr: It is to encourage early payment. There is an element of that as well in terms of the savings when you pay it early. Primarily, it is there as an incentive to developers; if that is the route that they are going to go down, they would do that.

Mrs Cameron: It is quite a large reduction. Do you agree?

Mr Kerr: It is based on the Scottish approach. One of the things that I should say about this is that, because it is new and obviously is coming through in the subordinate legislation that we are talking about today, it is something that we are going to keep closely under review. It has not really developed as strongly as they had hoped in Scotland. That is the message coming back. Some authorities have really gone for it, and others have not. The ones that have gone for it have been quite positive in talking about the effect that it has had. We recognise that we are going to have to review this and see how it runs. That may be an area that we will look at as we see how it works in the future. It is quite easy and quick to make changes to those levels through the process.

The Chairperson (Ms Lo): They are given four weeks to pay, is that right?

Mr Kerr: It is 28 days.

The Chairperson (Ms Lo): OK. It is a bit like parking fees.

Thank you very much to you and your staff. This briefing will be reported by Hansard.

Members, are you content for the Department to proceed with making the rule?