Official Report: Minutes of Evidence

The Chairperson (Mr Butler): I welcome to the meeting the following officials: Simon Webb and Mark Allison. Thank you, gentlemen. Simon and Mark, please give a brief overview of each clause in the first group that we are considering, which contains clauses 1 to 3. I will then quickly highlight any specific issues that have come up so far in our evidence on those clauses before I ask members whether they have any queries or comments for the Department on those clauses. For members' information, clauses 1 to 3 cover "Detriment to local amenity" in relation to maintenance notices, appeal against maintenance notices and breach of maintenance notices. We will go through clauses 1 to 3 individually. Thank you very much.

Mr Simon Webb (Department of Agriculture, Environment and Rural Affairs): Thank you very much, Chair. Clauses 1 to 3 are on maintenance notices. Such notices are targeted at low-level cases of dilapidation. Clause 1 allows councils to serve a maintenance notice to require owners, occupiers and others with a relevant interest in the property to take appropriate remedial action to deal with low-level dilapidation and neglect within a period specified in the notice. Clause 2 provides for appeals to a Magistrates' Court against the notice issued under clause 1. It stipulates the grounds for appeal and provides that the time frame for bringing the appeal will be 28 days from the date that the notice becomes live. Further provisions are found in clause 22. Clause 3 relates to a breach of a maintenance notice. It allows councils to take the necessary remedial action for non-compliance with the notice and sets out the offence and penalty provisions for breach of that notice. We are talking about works in default there.

Chair, if you do not mind, I will very quickly mention the recent correspondence from the Committee to the Minister on 23 January. Some concerns had been raised with the Committee by the Northern Ireland Local Government Association (NILGA) and Building Control NI. I can confirm that officials are very happy to convene a meeting with colleagues from those organisations as a matter of urgency, so that we can have a round-table discussion to address any outstanding issues.

I turn to ministerial amendments. At the moment, the Minister is proposing an amendment to clause 11 that would make cosmetic changes to the defective premises notice. The amendment would alter the title of that notice to urgent abatement notice to avoid confusion with DFC legislation.

Finally, we have supplied the rural needs impact assessment. That correspondence should be with the Committee very soon.

The Chairperson (Mr Butler): Members, we will take it clause by clause. Most respondents were in support of clauses 1 to 3. The Youth Assembly, although supportive of the Bill, raised concerns about councils being able to act without financial support.

We will look at clause 1 first. We have heard that the definition of "detriment" should be supported by categorised lists of examples of detrimental conditions. I advise members that the draft guidance, however, states that those terms are not defined in legislation and that it is difficult to be prescriptive on the issue of whether the condition of a building or other land is one or the other. Councils will therefore need to consider the condition of the site, the impact on the surrounding area and the scope of their powers in tackling the problem before deciding what type of notice to issue.

Comments on clause 1 by witnesses from whom we have heard so far centre on the definition of "detrimental" in clause 1 and on how that term needs to be defined more clearly or categorised by a list and assessments. Has any work been done in that space to bottom out the definition in the legal context or give councils a much more prescriptive outline that would assist them so that they do not take different approaches?

Mr Webb: The approach used to define those terms is broadly equivalent to the approach adopted in England, which is to leave the concept somewhat at councils' discretion. Councils should not be excessively concerned with producing technical definitions of "amenity"; rather, they should be able to adequately demonstrate how a building or land in their area is impacting on amenity. We have not sought to further define those concepts at this stage, but we refer members to the draft guidance, which we have supplied to colleagues in local government for consideration. We have received their responses.

Mark, do you want to add anything on that issue?

Mr Mark Allison (Department of Agriculture, Environment and Rural Affairs): No. We beefed up the guidance on defining the difference between "detriment" and "serious detriment". We could try to further elaborate on it.

The Chairperson (Mr Butler): When the representatives from NILGA were here, I tried to ascertain whether it had a baseline already. None of this is new; it is about bringing older legislation into a much more linear and refined single pot. Has your to and fro with NILGA revealed anything at all about its baseline when it comes to how councils approach the definitions of "detriment" or loss of "amenity"?

Mr Webb: No. We have not had anything specifically on that from NILGA, but, certainly, we can revisit that issue at our round-table discussion.

The Chairperson (Mr Butler): I would appreciate that. I would like to see a really clear line of communication on such issues with local council representatives, based on the fact that we are going to be conferring powers on them. There is a role for them to play in speaking into the process and ensuring that they can actually use whatever the Assembly delivers.

Mr McAleer: Chair, I support what you said. Simon said that the defining "detriment" will be at the councils' discretion, but one theme that NILGA raised was the importance of having clear definitions of "dilapidation" and "neglect", for example, to ensure consistency across councils. Consistency is an important issue.

Mr Webb: Certainly. The draft guidance points out that the terms "detrimental" and "seriously detrimental" are not defined in the legislation. It is difficult to be prescriptive on those issues. I take the point about wanting to maintain a degree of consistency. However, what might be considered to be detrimental in one council area may not be considered as such in another area, and there may be very good reasons for that. As currently structured, the Bill allows for a degree of flexibility, but it still relies on a council's building a case that something is detrimental to the amenity. That is the key focus, as opposed to specifically defining a term.

Mr Blair: I have a quick question and comment, and I ask you to reflect on the comment. The question is to Simon. It is not a trick question. I get what you are saying about how the perception or definition of "dilapidation" might be different in different places. However, I do not quite understand how that could be and why it cannot be fixed in law for that reason. Could we see a template or an example? If a building in the middle of a village has no roof or windows, and it is not in a remote location, it impacts directly and negatively on the adjacent buildings. How can that be different in one place compared with another?

Mr Webb: I take the point. You have drawn a like-for-like comparison.

Mr Blair: There will be some of those situations.

Mr Webb: To some degree, we have tried to incorporate flexibility into the legislation to allow councils to establish what is a priority for them and to allow each council to determine how negative the impact of a property on neighbouring properties is in its area. Again, I am happy to pick that up with my colleagues at our round-table discussion.

Mr Blair: For clarification, this is the context in which I ask that. I happen to think that, if one area is doing something and another area is not, it is still better that something is being done somewhere, rather than nothing at all being done. It is not a negative reflection on my part; it is something that might need to be looked at. It is certainly something that I support. I can see the line of questioning that will arise over that example.

I hope that my second point is more helpful. It is reasonable for us to understand that the definition of dilapidation will not be easy to determine. We cannot go down the route of saying that a building must have a certain number of tiles missing from its roof or a certain percentage of paint flaking on its facade. It would be a terribly complex road to go down, and I urge the Committee to try not to take that route. However, I want to get information and feedback from the officials. Do you agree that the definition would be too difficult to determine, because there would not be the type of clear-cut situations that would be demonstrated in the like-for-like examples?

Mr Webb: Absolutely. It would become an overly descriptive system that would place huge administrative burdens on the councils to provide that level of assessment and consistency across councils, as you said, down to every last tile. There is a happy medium.

Mr Blair: Setting very strict criteria could mean that, for example, an unsightly building would not qualify for action because it has one more tile on its roof than a building across the street that is just as unsightly but would qualify for action. That is another reason that I would steer away from that method, quite frankly.

The Chairperson (Mr Butler): This discussion on clause 1 is about bottoming out the low-level cases. Part of it is the fact that there are such cases. I do not disagree because I understand that the application is very difficult. However, after storms, a missing tile can alter the structural stability of a roof. There is a tipping point at which something becomes dangerous, even if it is something small. That is probably more about derelict buildings, to be fair. Obviously, if someone is using a building, it is in their interest to keep it in good condition. You are right to say that there is a common-sense piece that needs to be applied. John, are you happy with that?

Mr Blair: Yes.

The Chairperson (Mr Butler): Have you proposed a date for the round-table event with NILGA? When do you envisage that happening?

Mr Webb: There are no specific dates at the moment, but we are keen to do it as soon as possible.

The Chairperson (Mr Butler): Will you let us know?

Mr Webb: Yes.

The Chairperson (Mr Butler): Do members have any other questions on clause 1?

Miss McIlveen: No. I have been listening carefully to the contributions on clause 1. The difficulty in all these things will be that, without a clear definition, it will become very subjective. It will also be guided by whatever financial resources are available to councils, which creates a difficulty because it raises expectations, and that is my concern about the legislation. The intention is good, but it is about what implementation looks like when it gets to councils. That is when the definition will be key.

Mr Webb: I appreciate the Committee's view that the definitions of "detriment" and "serious detriment" need to be revisited and teased out a bit further with colleagues on the ground who will use the legislation. We will attempt to do that.

Mr Wilson: On that, we have 11 councils, so I do not think that we can afford to have that degree of difference in the interpretations of what will be law, if the Bill passes. That would be detrimental. It would not help. You would have court cases, and you would then have new benchmarks set by the courts about what is acceptable, which sort of outdoes this process and should be avoided.

One very small point is that the clause refers to "a district council", but we have borough councils as well. Does that description need to be more specific?

Mr Webb: I would have to check that to be absolutely clear on it. Obviously, the intention is to include all councils.

Mr Allison: That is covered by the Interpretation Act (Northern Ireland) 1954.

Mr Wilson: There are city councils, too. Armagh City, Banbridge and Craigavon Borough Council (ABC) is a borough council.

The Chairperson (Mr Butler): Gareth could be particularly useful in the Committee at this stage, as he is the freshest MLA to come from council. Some of us have not sat on council for some years. John, too, was on council for a while. We understand the rub of the green and the difficulties.

Is there anything else on clause 1, members? That does not close out the discussion on clause 1, by the way. This is just the first week of deliberations. We reserve the right to come back to officials, especially if there is to be more evidence, further meetings or round-table events.

Mr Wilson: We really should not be afraid to hear from councils on that. We heard from representative bodies, and I know that it would be a protracted process, but we should not be scared to hear what councils, particularly building control departments, say.

The Chairperson (Mr Butler): We could do that individually, certainly, but, obviously, councils work collectively through NILGA and the Society of Local Authority Chief Executives (SOLACE). There was no real desire from SOLACE for representatives of individual councils to appear.

The Committee Clerk: I can confirm that all councils responded to the Citizen Space survey, so all the summary information from them is in your papers.

The Chairperson (Mr Butler): I think that what Gareth is pointing towards is ongoing communication between us and them as things start to land, a picture starts to form and the guys possibly start to amend things.

Mr Wilson: Sometimes, when we get to the end of a process and we — well, not we but organisations and legislators — have not fully listened, we then have a whole —.

The Chairperson (Mr Butler): We listen all the time, Gareth. I do not know what you are suggesting there.

Mr Wilson: I appreciate that. [Laughter.]

The Chairperson (Mr Butler): All right. Thank you.

Mr McAleer: Chair, sorry for coming back in. I want to mention an issue that is not just a particular feature of the draft legislation but a feature of everything to do with councils. Take the Sperrins region, for example, which is in the middle of the North of Ireland. It is splintered between four council areas, and it is at the far end of each council area, but it is one homogenous region. It is also split between four constituencies. I know that because a big chunk of it is in West Tyrone and the Fermanagh and Omagh District Council area. It is in the middle of the North. The tail ends of the Mid Ulster District Council, Derry City and Strabane District Council and Causeway Coast and Glens Borough Council areas converge in that homogenous region. With not just the Bill but all things to do with councils, it is important that we try to make it as harmonious as possible, because those council areas all converge in the centre of the North.

Mr Webb: Yes. I appreciate that entirely. Certainly, we are keen for councils to cooperate and engage with each other to that end. Indeed, the notices can refer to the impact on properties in the neighbouring council area.

Mr McAleer: In that area, you could drive a mile up the road and go through three council areas —

Mr Webb: Absolutely.

Mr McAleer: — but it is still one homogenous community.

The Chairperson (Mr Butler): Thanks for that, Declan.

We move to clause 2. We heard that consideration might be given to shortening the 28-day window for appeals relating to maintenance notices. The Department advises that the period of 28 days is standard for appeals. Do the witnesses want to comment on clause 2 specifically, or shall we just open the discussion on it?

Mr Webb: As, I think, you mentioned, Chair, that particular set of clauses relates to the new powers that we seek to add to the suite, as it were, on low-level dilapidation. It is equivalent to the section 215 powers in the Town and Country Planning Act 1990. That is really where we are talking about bringing in new material, with which councils would be less familiar, to deal with low-level dilapidation. It is about a lick of paint, a broken window or things of that nature. If we could just keep that in mind when considering the clauses, that might be helpful.

The Chairperson (Mr Butler): That is good. Do not be afraid to refer to that and refresh our focus on it, because, as John rightly pointed out, there needs to be a common-sense approach to low-level dilapidation. A shorter window for appeals may not necessarily make sense in cases of lower-level dilapidation that do not necessarily impact on public safety or whatever. At the same time, Declan's point is well made. My ambition is for us to see, as much as we can, a linear approach through all council areas, so that we are not faced with looking across the street and seeing something that is not being applied in a fair and just manner. Do members have any questions on clause 2? Is there anything else that you want information on or to widen out? There is not, so I will move on.

In respect of clause 3, it was suggested that additional fines for repeated offences should be considered and the £500 fixed penalty be increased, as £500 could be significantly less than costs and would not ensure compliance. Approximately 79% of respondents from the informal survey also highlighted that the fine might not be high enough. Youth Assembly Members felt that the fines should be scaled based on the site owners' resources and status. For instance, they suggested that fines might be increased in instances of repeat offences. I remind members that the Department considers the current penalties to be sufficient and that they could be considered again at any time in the future. Maybe we could talk about the provisions on fines in the legislation. It was also suggested that the level of fine for anyone who fails to comply with a maintenance notice, which clause 3 currently sets as not exceeding level 4, which is £2,500, be increased to level 5, which is £5,000, the maximum fine on the standard scale. In summary, that is a fixed penalty fine or additional fine for repeat offenders and an increase in the level of fine to the statutory maximum.

Having taken in and listened to the deliberations with witnesses, is there any change in the Department's position, notion, tone or intent on that issue?

Mr Allison: We looked back on the original instructions for fixed penalties. At the time, it was felt that councils were to be given the flexibility that they have in litter or dog fouling scenarios. There are no fixed penalties available for section 215 notices in England. We are not averse to increasing that amount or removing the fixed penalty completely. As for the increase to the level 5 fine, it was a level 3 fine in England until 2024, and then it was increased to level 4. You are talking about the same fine on summary conviction as the one for a dangerous structure notice.

The Chairperson (Mr Butler): We are still talking about low-level dilapidation.

Mr Webb: Absolutely.

Mr Allison: I consider £5,000 to be excessive.

The Chairperson (Mr Butler): Is there any evidence that the changes in England have brought about any significant improvement, or did they make it more likely that remedial action would be taken in those instances? Is there any baseline?

Mr Allison: No, I am not aware of any evidence. In England, it was done as a result of the Levelling-up and Regeneration Act 2023. It is still level 3 in Wales, as far as I remember. It is totally different scenario in Scotland as well.

Mr Webb: In general, compliance rates with maintenance notices in England are very high, so there is not a significant level of non-compliance in the first place.

The Chairperson (Mr Butler): What evidence do we have from councils in Northern Ireland about the issuing of fines?

Mr Webb: As things stand, councils lack an equivalent power, so we do not have a direct comparison for maintenance notice fixed penalties. However, some work has been done with Belfast City Council. We had properties that were formally actioned by way of an enforcement notice under article 66 of the Pollution Control and Local Government (Northern Ireland) Order 1978. Only 14 properties were formally actioned, and only three of those cases went to court. There is, therefore, a relatively high compliance rate with those older powers.

The Chairperson (Mr Butler): That is an interesting point, because, sometimes, it can be a case of, "If it is not broken, do not fix it". I should not say that when I am talking about dilapidation, obviously. [Laughter.]

I am not suggesting that we do not fix it. I am talking about the scheme of fines and actions that are available.

Mr Blair: Yes, but we need to be clear that the number of actions taken under the existing legislation is very low.

Mr Webb: Yes, absolutely.

Mr Blair: One per area per decade, perhaps.

Mr Webb: Those were Belfast figures specifically on actions on dilapidation under article 66.

Mr Blair: You quoted 14.

Mr Webb: The average figure for a year in Belfast was 14.

Mr Blair: For a year, OK.

Mr Webb: The intention of the £500 fixed penalty is to discharge the owner from liability for conviction as opposed to the works. The expectation is that they will complete the required works and pay the £500 penalty to discharge liability, where they could, on summary conviction, go on to face a £2,500 fine through the court. That is maybe the context in which the £500 should be seen. It in itself is not a way of avoiding responsibility for carrying out the works.

The Chairperson (Mr Butler): When we start talking about fines, we see where the bit about definitions comes in. That is why it is important to bottom something out, because people in one council area could potentially find themselves in court and liable for a fine up to £2,500, but, in another council area, the case might not have met the threshold or baseline definition. That is why we cannot deal with clause 1 and then come to clause 3, and say, "Ah, this is where the rubber hits the road now". That is why we are doing it in these sessions.

Mr Blair: Chair, can I make a point? That already happens with things such as fly tipping. That is the reality. It is not a new phenomenon. There are issues that are dealt with differently across council areas. We cannot police that. Residents and ratepayers might wish to take action where those examples arise, but we cannot suggest for a moment that it is something novel, because it happens every day. For example, there are boundaries between Mid and East Antrim Borough Council, Lisburn and Castlereagh City Council and Antrim and Newtownabbey Borough Council where differences can sometimes be seen. There are perhaps greater differences in other places, but we need to be clear that it is not something new.

The Chairperson (Mr Butler): That goes back to the point of what the legislation hopes to achieve in the first place. We do not want to disappoint our constituents with a suite of legislation that promises to change the world but contains no powers to do anything. If the Bill is about tidying up old legislation, that is also fine, but if that is what the Bill is about, that is what it needs to be packaged as. We have heard from high-level witnesses, professionals, architects and their associations and representatives from the natural environment division, the historical environment division and councils. There is an opportunity here, but we need to be realistic. At the same time, we should not be afraid to push the envelope, but we need to make sure that we bring councils along with us to get that linear approach. Is that fair?

Mr Webb: Absolutely.

The Chairperson (Mr Butler): We are just going off-piste. Please do not be afraid to lean in, because we need to get this right. Do any members want to raise any other points concerning clauses 1, 2 or 3? OK, members.

Simon and Mark, this is going to be a bit of an odd week for you. This is just an opening week for deliberations, so we will pause it at this stage, having dealt only with clauses 1, 2 and 3. We have a hard stop for a number of reasons today, but we will see you next week and the week after and the week after. [Laughter.]

To get value out of the deliberations, we will try to ensure next week that the session will not be as truncated as this one, which was almost 40 minutes. Hopefully, we will get more time next week, but we reserve the right to go back to those clauses. Thank you for your attendance today.