Official Report: Minutes of Evidence

The Chairperson (Mr Butler): I welcome the following officials to the meeting: Simon Webb, who is the Bill lead in the neighbourhood environment quality branch; and Mark Allison, who is from the Bill team in the neighbourhood environment quality branch. I invite you to brief the Committee. Thank you, gentlemen.

Mr Simon Webb (Department of Agriculture, Environment and Rural Affairs): Thank you, Chair. Good morning.

The Dilapidation Bill is intended to give councils a modern suite of powers to deal with dilapidated buildings and neglected sites. The application of the legislation that currently covers dilapidated buildings and neglected sites in Northern Ireland is geographically disparate, with different powers available in different council areas. A lot of that legislation dates back to the Victorian era, and some of it gives rise to human rights issues, making it unworkable. The Bill is intended to give councils new powers that are equivalent to those in other jurisdictions in the UK and Ireland. That should enable councils to tackle dilapidation at an earlier stage through the likes of maintenance notices and, ultimately, reduce overall dilapidation to the building stock through a hierarchy of notices that will deal with different levels of dilapidation. We will now take questions.

The Chairperson (Mr Butler): Thank you so much. The consultation exercise was in 2016. Have the proposals changed much since then? Did the feedback on the consultation lead to any significant improvements or challenges?

Mr Webb: The responses to the consultation were broadly supportive. There was cross-party support for the proposals, and the respondents to the consultation very much welcomed them. There have not been substantial changes to the policy since the public policy consultation. It remains the case that we have a hierarchy of notices and cost-recovery provisions for the councils. Those provisions do not currently exist, so they are a significant addition in the new legislation and will make it easier for councils to recover their costs where they step in to undertake works.

The Chairperson (Mr Butler): Those powers will be conferred on councils. In their response, were the councils all in the same space, shall we say?

Mr Webb: Yes, they were. We recently wrote to the Society of Local Authority Chief Executives (SOLACE) to ensure that they were still supportive of the Bill progressing through the Assembly. That support remains in place.

The Chairperson (Mr Butler): OK. I noticed that the Bill aims to bring in only discretionary powers for councils. Is there a reason why the powers are discretionary? Were mandatory powers considered? Is there a risk that, due to the application of discretionary powers, councils will still take different approaches, which means that we could still have regional disparities?

Mr Webb: Yes, there are resource issues. Councils will need to adequately resource their own arrangements, and there will be cost implications associated with enforcement activity if they wish to avail themselves of the new powers. If the powers were mandatory, there would be an issue with providing direct financial support to the councils to assist with that. Taking a discretionary approach means that councils can use the powers as their resources permit, and the cost recovery provisions will facilitate that by reducing the risk of councils being left out of pocket if they choose to step in.

The Chairperson (Mr Butler): Is there an inventory, held either centrally or by councils, on what constitutes a dilapidated property? If so, does it separate properties into those that have private tenancies, those that are privately owned, those that are publicly owned and so on?

Mr Webb: There is not an inventory of properties as such, but Ulster University carried out a study for us in 2017. That study estimated the number of properties affected and broke those down. I am happy to share the figures with the Committee at a later stage.

The Chairperson (Mr Butler): I appreciate that. Bridge Street in Lisburn, where I have my office, has seen some upgrades over the years, but the council is still wrestling over a number of properties there that have become desperately unsafe.

You will understand that the Committee is charged with interrogating and ensuring that there is a primary focus on rural affairs. Was there anything in the consultation or in the interim period about the impact on rural areas?

Mr Webb: Nothing specific arose on rural properties. The thrust of the Bill is about improving the local amenity, so the property needs to be having a negative impact on the local environment, local neighbourhood and neighbouring properties. It is unlikely that a council would take action on a stand-alone remote property, for example, that was not posing a danger to or having a negative impact on another resident of the council. This will probably have more of an effect in villages, towns and cities, where properties are in closer proximity.

The Chairperson (Mr Butler): I have a final question, because you have raised a point of interest for me. This is nothing to do with you guys, so I am not blaming you, but we have learned this week that when it comes to noxious smells, the Department's rules centre on a sniff test. That is patently not good enough, because if you do not have a sense of smell you will not find a problem. Is the test to measure and quantify the neglect of dilapidated buildings robust enough? Will it be applied equitably across all council areas?

Mr Webb: I can confirm that there is no sniff test. We talk about building control officers. Obviously, the statutory guidance, which the Bill requires, will go into more detail on those elements. Mark, have you anything to add?

Mr Mark Allison (Department of Agriculture, Environment and Rural Affairs): We have just started work on the guidance. We are drawing on the guidance that is available to local authorities in England and Wales. Obviously, we will be setting out case studies and stuff like that to provide direction to councils. We hope that the guidance will provide a robust —.

The Chairperson (Mr Butler): It is still to be finalised. We can feed into that. I have a final, final question — I sound like Patsy. The direct correlation with the transformation of our town centres is unequivocal. Is there any deliberate link with a wider strategy to bring prosperity to our town centres?

Mr Webb: Will you repeat that?

The Chairperson (Mr Butler): The dilapidation of buildings in our town centres is part of the lack of appeal for people coming back into our town centres and driving the local economy. Is there a direct link between the Bill and addressing those issues or could that be an unintended consequence of the Bill?

Mr Webb: I appreciate the question. That is addressed, to some extent, in the regulatory impact assessment. The thrust of the Bill is about local amenity. The Bill does not focus on economic regeneration or a certain level of properties being brought back into use etc; it is more about improving the local amenity so that there is not a negative impact on neighbouring properties. However, there is an expectation that there will be a spin-off effect. The broken-window theory is that a situation in which there is one broken window in a neighbourhood can spiral. It is about getting in and tackling low-level dilapidation through maintenance notices and generally improving the appearance of property exteriors, as well as tackling the properties that have become more severely dilapidated over the past few decades. That, in turn, should make areas more attractive for economic activity, footfall, tourism, etc.

Mr McAleer: Thanks for your presentation. I want to pick up on the cost, particularly the potential cost to councils and ratepayers. What level of support will there be from the Department for councils to assist in tackling the challenges that are caused by dilapidation?

Mr Webb: The Bill adopts an approach of, primarily, placing the cost of the remediation works, be they minor or severe, on the property owner, occupier or interested financial organisation or party. The idea is that there should not be an impact on the public purse. Councils could, initially, serve a maintenance notice or a dilapidation notice, which would require the property owner to take action. That would mean no significant cost to the council from undertaking works etc. Such costs would be connected more to capital programmes. However, if the owner does not act on the notice and is in breach of it, in the case of a dilapidated notice, the council could seek a court order requiring the owner to act. If there continues to be a breach, council will have the option to step in and undertake the works. In those circumstances, until those costs are recovered, they are reflected in a charge on the property, so the council will, ultimately, have the ability to recoup its costs when the property is sold.

That is if it wishes to step in and thinks that it has a realistic chance of recouping costs in a scenario where it has undertaken the work itself. Alternatively, it could place a charge on the property requiring a future owner to undertake the necessary works, in which case, again, there would be no impact on the public purse.

Mr McAleer: Yes. Your paper states that under clause 12 a council:

That is grand, but we have seen the limbo that there has been with unadopted developments, where the developers have either gone bankrupt or disappeared and the bonds that were lodged no longer cover the works that are required to complete those developments. If a council exercises its power under clause 12 and carries out the work itself but then has no way of recouping that money, what will happen? Will there end up being significant cost to the ratepayer?

Mr Webb: Yes, there could be if the council chose to act with little chance of recovering its costs. Obviously, councils will need to act in their own self-interest when it comes to their financial situation, look at each case on a case-by-case basis and ask, "Well, if we pursue this particular case, what are our chances of recouping our costs? Will there be a significant hit to ratepayers?". There is, as I said, the possibility of putting a charge on the property to recoup costs at a later date. The council could, ultimately, seek a possession order through the courts to enforce a sale. Decisions on whether to grant possession orders are made by courts on a case-by-case basis, so the council would have to weigh up the likelihood of the possession order being granted.

Mr McAleer: That is great. Thank you very much.

Mr McGlone: Before we get on to the process that a council could go through, is your definition of "amenity" solely visual?

Mr Webb: Mark, do you want to comment on that?

Mr Allison: We do not define "amenity" in the legislation. I do not think that it is defined in the GB legislation either. It takes its meaning from the dictionary. There will be stuff in the guidance about amenity.

Mr Webb: We would expect the interpretation of what "amenity" actually means to be quite broad.

Mr McGlone: I have dealt with planning cases in which the definition of "amenity" has been much broader than the visual.

Mr Webb: Yes.

Mr McGlone: That is why I ask. If you start from the position that amenity is visual, you can rule out other options around the structure of buildings.

That brings me on to the second bit. What role does the Health and Safety Executive (HSE) play in this?

Mr Webb: First, I will go back to the point on visual amenity. There are other notices in the Bill. You have the dangerous structure notice, the defective premises notice and the ability to take emergency action. Obviously, it is about much more than visual amenity, but the visual amenity would be more of a focus for the maintenance notice and the dilapidation notice. Sorry, I wanted to clarify that.

Mr McGlone: Yes, but there is usually a multiplicity of factors with some of the buildings.

Mr Webb: Absolutely.

Mr McGlone: That brings me on to my next point. Where does the Health and Safety Executive factor into all of this? As you see, some of the buildings are barely propped up. Where and at what point do you see a role for the HSE in tackling the issue, if at all?

Mr Webb: There is no direct reference to the HSE in the Bill. We are not looking to impact on other agencies or Departments in that respect. The dangerous structure notice, emergency action etc, will potentially entail the HSE, but there will be no change to the current arrangements.

Do you want to add anything to that, Mark?

Mr Allison: I recall a bit being put in the guidance to say that the council will seek out the professionals in whatever field when it makes its decisions.

Mr McGlone: Will you just talk me through the process? Say a couple of buildings have been identified, and one looks more dangerous than the other. The one that looks more dangerous may also be more structurally defective inside — I do not know. Will you talk me through the discretionary process for the council in that example? If the property is identified and determined to be defective or deficient, what happens?

Mr Webb: In that case, we are probably talking about a council issuing a dangerous structure notice. That notice will require certain works to be undertaken: either demolition or work to secure the property satisfactorily to remove the danger. There is the option of pursuing a court order if the property owner fails to act.

Mark, do you want to add anything?

Mr Allison: Clause 10 is about emergency action. A council will take immediate action if it thinks that doing so is justified.

Mr McGlone: Sorry for rewinding a bit, but what if the owner of the property cannot be identified?

Mr Allison: The wording is that councils will take all "reasonable" steps to find someone. Obviously, that is an extreme situation, but councils will go ahead and do whatever —.

Mr McGlone: I have been there. A few years back, when I was on a council, there was a case in which the owner of such a property could not be determined. What happens then?

Mr Allison: In the case of emergency action, the council will go in and do the necessary work. It will not sit —.

Mr McGlone: Sorry, I get that. That process will accrue quite a cost to the council and, consequently, the ratepayer. Will you talk me through the legal process? Some of those court cases can wind up costing £20,000, £30,000, £40,000 or £100,000 — God knows where they would wind up. Say that £40,000 is the legal cost and the remedial work costs another £60,000, £70,000 or £100,000, you could wind up with a bill of around £150,000. However, you may not know and cannot find out who the owner of the property is. Where does that go? I am trying to get my head around that. Who is that bill lodged with for first charge on the property legally? If anyone tries to acquire the property or if, eventually, the property owner shows up and says, "Aye, that's mine", and tries to flog it, build on the site or whatever, what is the process?

Mr Allison: We can go back to putting the charge on the property.

Mr McGlone: That is the bit that I am unclear about. Forgive me. By the time you go back to putting the charge on it, the property could be sold. That is what I am trying to get at. What methodology is there to ensure that the council's outlay is redeemed and the council has first charge on the property? Is that a matter for the court? How does that happen?

Mr Allison: The council will have the option to put the charge via the Land Registry. When it comes to be sold, that charge will be treated like a mortgage.

Mr McGlone: That is grand; that is what I wanted to know.

Mr Irwin: I have some sympathy with you and agree that something needs to happen. I know of dilapidated buildings: there is one that comes to mind that has been lying idle for 20 years and has led to neighbours having to deal with a rat infestation. It is an issue. The legislation will be fraught with difficulties. It will not be straightforward: if the legal owner of a property decides to leave it the way it is, it will be difficult to do anything about that. Even from a legal perspective, it will be difficult. Is there any legislative review mechanism in the Bill to assess its effectiveness once it is up and running?

Mr Webb: Councils will have a suite of notices available. They will be able to use a combination of the notices involving an owner, an occupier or an interested financial party. They will also have fixed penalty options available, in addition to criminal offences that will come with fines or custodial sentences.

For something of this nature, there is usually a post-project evaluation. That happens about a year afterwards for most projects, but, for something such as this, it will be longer-term, so that you can see —.

Mr Irwin: Getting it right the first time might be difficult. It may need to be looked at again. It will not be straightforward.

Mr Webb: Yes. There would almost certainly be standard reviews for something of that nature. However, because of the type of work involved, it will probably be a number of years before a review takes place to allow the provisions to bed in, see what enforcement activities have been undertaken and see whether there has been an improvement in the overall condition of the buildings.

Mr T Buchanan: If a council steps in and notifies the owner that work needs to be done but the occupier objects to that, there may be a problem between the owner and the occupier. That can proceed through the court, but who will take it through the court? Is it the council or the owner of the property?

Mr Webb: We have provisions about obstruction by the occupier, so they will not be allowed to obstruct works. If that were to progress further, the case then would be between the council and the court.

Mr T Buchanan: The council would push it through. That is fair enough.

The Chairperson (Mr Butler): Aoife, do you have a question? Are you content?

Ms Finnegan: I am content. I had a question, but it has already been answered, so I am happy to move on.

The Chairperson (Mr Butler): It is evident that the timescales for the Committee will be known in the next few weeks. Thank you so much for your time, gentlemen.