Official Report: Minutes of Evidence

The Chairperson (Mr Butler): We will continue our deliberations on the Dilapidation Bill. I welcome Simon Webb and Mark Allison from the Department of Agriculture, Environment and Rural Affairs (DAERA) to answer questions and discuss issues as we go along. We are joined by Bill Office official Aoibheann Baker and Glenda Doherty, our senior assistant clerk, who is working on the Bill.

Before we get to the clauses, I wish to highlight that the convention rights memorandum (CRM) notes that the convention rights engaged in the Bill are as follows: in Part I of the convention, article 6, the right to a fair trial; article 8, the right to respect for private and family life; and, in Part II, article 1, the protection of property. However, according to the CRM, there are no clauses or provisions of the schedules to the Bill that call for particular scrutiny by the Committee. We may decide to seek minor elucidation from the Department on how several provisions will operate in practice, but none raised particular concerns as regards compatibility with the convention at this stage. Where provisions of the Bill raise European Convention on Human Rights (ECHR) issues, I will highlight those as we work through the clauses.

Last week, we considered clauses 1 to 3, which have been included for reference in case we need to return to them and the convention rights engaged as per the CRM. Before we move on to the next section, I remind members that we considered a response from officials on the Bill under matters arising. I invite the officials to update the Committee on whether a date has been confirmed for the round-table discussion with the Northern Ireland Local Government Association (NILGA) and Building Control Northern Ireland (BCNI).

Mr Simon Webb (Department of Agriculture, Environment and Rural Affairs): We have issued the invitation to NILGA and BCNI. We have heard back from some of their representatives. A couple of the organisational representatives are on leave this week, but we are confident that we should be able to convene a meeting the week after next.

The Chairperson (Mr Butler): OK; thank you. We will put that in our diary. That is an important event.

Mr Webb: We will, of course, update the Committee.

The Chairperson (Mr Butler): Members, do you wish the officials to go over clauses 1 to 3 again? Will we start with clauses 4 to 6? Yes, we will start with clauses 4 to 6. That does not mean that we will not return to clauses 1 to 3. There are some overlaps, and some things may take us back. As you are content, however, we will go to clauses 4 and 5.

Simon and Mark, please give us a brief overview of clauses 4 to 6, which are under "Serious detriment to local amenity" and cover dilapidation notices, appeals and breaches. We will then go through the clauses individually.

Mr Mark Allison (Department of Agriculture, Environment and Rural Affairs): Thanks, Chair. Clauses 4 to 6 are concerned with dilapidation notices. Currently, all district councils have broadly similar powers under article 66 of the Pollution Control and Local Government (Northern Ireland) Order 1978, but article 66 does not contain a power to demolish in the most extreme cases. Powers to take down are contained in the Belfast Improvement Acts and the Londonderry Corporation Act 1918, and those have been replicated in clause 4 and made available to all councils so that we do not dilute any powers that are currently available to Belfast City Council and Derry City and Strabane District Council.

Clause 4 allows district councils to serve a dilapidation notice to require owners, occupiers and others with a relevant interest to take the appropriate remedial action to deal with more serious dilapidation, as opposed to the maintenance notice. We have made it clear in the draft guidance that demolition should be a last resort and that councils should be aware of the possibility of owners initiating court proceedings for deprivation of property.

Clause 5 makes provision for appeals to be made to the Magistrates' Court against the notice. It stipulates the grounds for appeal and provides the 28-day time frame from the date on which the notice becomes live. There are further provisions on appeals in clause 22.

Clause 6 deals with breach of the notice, which is when a person fails to comply with a notice or any conditions specified in it. The council may apply to the Magistrates' Court for an order compelling the person to take the steps specified in the notice. Clause 6 also allows councils to take the necessary remedial action if there is non-compliance with the notice or court order. The clause then sets out the offence and penalty provisions for a breach of the notice or instances where the whole or part of a building is demolished without the council's permission. The penalty in the 1978 Order is a summary fine of £2,500, but the Bill will allow for the statutory maximum on conviction in the Magistrates' Court of £5,000, with a higher fine or up to two years' imprisonment on indictment.

The Chairperson (Mr Butler): That is significant.

Stakeholders' submissions demonstrated that opinion on clauses 4 to 6 was evenly split. There was no apparent majority for or against the clauses.

On clause 4, we heard that the definition of "serious detriment" should be supported by categorised lists of examples of serious detrimental conditions. I remind members that the departmental guidance states:

and that it will be up to councils to use their judgement. We also heard that councils should consider repurposing or restoring old buildings rather than issuing a dilapidation notice, with councils being required to provide documented explanation of why restoration would not be practical. We heard from Youth Assembly Members, who saw the potential for community and economic benefit if the Bill were implemented and agreed that councils should have the option to acquire and restore properties.

An amendment to clause 4(5) has been suggested by the historic environment division (HED) in DFC and Ulster Architectural Heritage (UAH). They note that section 85 of the Planning Act (Northern Ireland) 2011, which requires listed building consent for alterations or demolitions, does not strictly relate to "condition" but to "architectural or historic character". That is an important piece. They suggest that the Bill needs to be more explicit in relation to condition by amending the wording:

to include:

I advise members that the right engaged by clause 4 is article 1 of protocol 1 (A1P1): the right to peaceful enjoyment of possessions. I suggest that the Committee may wish to consider whether the controls on the use of property are proportionate and strike a fair balance between the general interests of the community and the private interests of the interested person. The right to appeal the notice to a court provides assurance in that regard.

I will move to questions, if that is OK. I will open up. Does the Department accept that the amendment proposed by HED and UAH is needed? If not, why not?

Mr Webb: As you will be aware from the Bill, there is a requirement in certain situations to consult DFC or relevant staff in the council when it comes to heritage-type buildings. The Department would like to look in more detail at what is suggested by HED. We have engaged closely with it in the development of the Bill.

Mark, is there anything that you want to add on that?

Mr Allison: Clauses 4(5) gives the obligation to comply with any other statutory provision. Is that enough?

The Chairperson (Mr Butler): There are little things that ring bells with me with regard to whether the Department is confident that every building of historic or architectural significance that should be listed is on a register. If an assessment for dilapidation or loss of amenity comes up, how do you prevent a muddying of the waters if someone throws something in that is or should be listed? What is the test to determine whether something is of significance? We do not want to lose evidently architecturally significant buildings or buildings of historical interest, but that process needs to be simplified for councils. Does the suggestion that has been put forward help, or is there a reliance on legislation that exists in other places? Every council needs to apply it in a linear manner.

Mr Webb: We would like to give further consideration to that. It is a very important issue. We are aware that there have been issues with heritage buildings in the past and potential loopholes. Therefore, it would be worth taking the time to consider that in more detail. We will come back to the Committee on that point.

The Chairperson (Mr Butler): It is a difficult one, to be honest, and I do not know the answer. Even if a building has some level of historical interest, it could be in such a dilapidated condition that there could be loss of amenity to surrounding buildings and property. There is a balance to be had. It is about determining what the weight will be and what conditionality would then apply.

Mr Webb: Absolutely. I agree.

The Chairperson (Mr Butler): Does anybody want to touch on that piece before I invite further questions on clause 4?

Ms Murphy: I think that you have just covered what I wanted to ask. Manus Deery from HED was in with us a number of months ago. Are you aware of the suggested amendment or the potential to add it as an extra clause?

Mr Webb: We have worked with Manus directly for many years and much more recently. Clause 17 relates to consultation with the planning department. That is really at the nub of it. The definition of a heritage site is in the Bill. However, as far as a potential amendment goes, I would definitely like to give that more thought and to consult Manus on that.

Ms Murphy: That would be useful. There is a loophole, as the Chair said, in relation to listed buildings or buildings of heritage and what the definition of the word "condition" in those circumstances means under the Planning Act. That would be useful for us. Thank you.

The Chairperson (Mr Butler): We will deal with clause 4 in a more general sense. Do members have any comments or questions on clause 4?

Mr McCrossan: I have a number of questions. Robbie touched on it, but I am not clear on the answer. How is "seriously detrimental to the amenity" objectively defined to prevent inconsistent or arbitrary enforcement between councils?

Mr Webb: Sorry, could you repeat that?

Mr McCrossan: How is "seriously detrimental to the amenity" objectively defined to prevent inconsistent or arbitrary enforcement between councils?

Mr Webb: In the guidance, we refer to the term "seriously detrimental". I appreciate that the Committee has raised an issue around terms such as "detrimental", "seriously detrimental" and "amenity" itself. Page 10 of the draft guidance covers the issue of detriment versus serious detriment. They are not defined in the Bill, because it is difficult to be prescriptive on the issue. As is the case for determining what is considered amenity in a council's district, what might be considered detrimental in one area might be considered seriously detrimental in another, depending on the individual circumstances, the surrounding area and the scope of the powers to tackle the problem. The idea, as drafted in the guidance, is that councils will need to determine the condition of the site.

The issue of consistency across councils has come up previously. The Department is currently not seeking to legislate to enforce consistency. Obviously, we encourage councils to cooperate on the issue of consistency, and we expect a degree of self-regulation in the sense that, if works are carried out in one council in a particular area and not in a neighbouring part of the community, ratepayers can raise that with their elected representatives. It would be for the council to determine the priority that would be applied there, obviously.

We will return to the issues of "detriment" and "serious detriment" in our engagement with NILGA and BCNI at our meeting later this month.

Mr McCrossan: OK. We will follow up on it then.

In a situation where owners cannot afford remediation, does clause 4 effectively force demolition through financial pressure rather than genuine choice?

Mr Webb: No. It would not be the case that the financial means would necessarily lead to an order to demolish. That factor would not be considered to be in play; it would be what the council officials, having assessed the property, felt was the most appropriate course of action as regards the state of the building and its impact on amenity.

Our understanding of experience across the water is that a lot of the cases that are being dealt with are low-level cases. In many cases, councils will be dealing with low-level amenity under clauses 1 to 3. The more serious cases will be few and far between, especially over time, as maintenance notices are issued and dilapidation is nipped in the bud. However, the ability to pay is not a consideration that we expect councils to factor into the equation.

Mr McCrossan: The levels of deprivation fluctuate from constituency to constituency, from town to town and from council area to council area, so I do not see how there will be any equality when it comes to enforcing that with consistency. For example, Derry and Strabane have higher levels of deprivation. Omagh and Fermanagh are the same compared with other parts of the North. I have concerns about that and the means that people have to remedy the problem without facing the worst possible consequences.

Mr Webb: Obviously, the cases needs to be looked at on a case-by-case basis. The council would have a more detailed knowledge of the situation on the ground and the exposure to its ratepayers if it pursued a particular property or course of action. It would be a case of determining the likelihood of cost recovery if it wished to intervene in a case. There are other options available. For example, the council could, if it wished, step in and undertake the work itself and put a charge on a property. Alternatively, it could place a charge on the property and say that such works need to be carried out, so that, when a property is sold on at a future date, that charge would be carried with it and the future buyer would be aware of the requirement to carry out works to tackle the amenity issue.

Mr McCrossan: Is there a potential hiding place for companies that have properties in their name compared with the ordinary citizen in our community? You can bust a company, and that is it.

Mr Webb: Absolutely. We are aware of that issue. In the current drafting of the Bill, the definition of an "interested person" extends to financial organisations or organisations that have ownership; it is not just the owner as an individual. On the particular issue of a trust or company, notices may be served on trusts or companies under the wide definition of an "interested person". Of course, the provision of robust and effective means of cost recovery is essential to ensuring that the appropriate person — organisation, in that case — pays the cost of remediation, as opposed to the council, ultimately. That would be key to minimising the cost to ratepayers and the public purse and preventing property owners and companies from letting a property descend into a dilapidated state.

Mr McCrossan: I think that we are on a similar page. If a number of derelict buildings in a town centre are under the ownership of a company and a notice is issued to that company due to the state of the buildings, what is to stop the director of the company transitioning the buildings from one company into another? My question is this: does the notice follow?

Mr Webb: I would have to check exactly how that would work legally.

Mr McCrossan: All that they would do is move the problem.

Mr Webb: Yes, but the notice is served on the property. For example, under the Interpretation Act (Northern Ireland) 1954, you can serve a notice even if you do not know the person or company involved. You can affix the notice to a property, and that counts as having served it.

Mr McCrossan: If it was condemned or something.

Mr Webb: Yes. In that respect, there is still the option for the council to initiate proceedings and, ultimately, proceed to do works, if that fails. That is the course of action to adopt.

Is there anything to add there, Mark?

Mr Allison: No.

The Chairperson (Mr Butler): That is an interesting point. I can think of another example of where a building or property is owned by a series of trustees. Often, those lists are not updated, and trustees pass on. If you were to game out the risk to current trustees — say, for want of a better example, there are 10 trustees and two or three pass away — is a linear risk applied to the trustees? I accept that it is a complication in law, but it is not an unusual precedent.

Mr Webb: I am aware that, for example, there have to be a certain number of directors in place to pursue costs, and, if that number is insufficient, that would potentially complicate matters. Before initiating proceedings, the council will want to make itself aware, as best as possible, of the number of trustees or directors involved in the company, if it can ascertain that information early on. My understanding is that, provided that there is a sufficient minimum number, yes, it would apply to those who are still in post.

The Chairperson (Mr Butler): I will ask you a question on every clause that we go through now that occurred to me yesterday as I was going through this. It is just to be clear for everybody here. It is useful.

Is clause 4 a new provision, or is it a copy and paste from previous Orders and legislation?

Mr Allison: Yes, it is basically a renewal of article 66 of the 1978 Order and, as I mentioned in my opening preamble, some of the very old legislation as well.

The Chairperson (Mr Butler): You mentioned the legislation that applies to Belfast and Derry and Strabane.

Mr Allison: Yes.

The Chairperson (Mr Butler): Therefore, those would be additional powers. They exist in those council areas at the moment and would be new to other council areas. Apart from that, the rest of clause 4 is a tidying-up of existing legislative provision.

Mr Allison: Yes.

The Chairperson (Mr Butler): I am dealing only with clause 4. I will ask you that for every clause, guys, because I want to get a really good picture of how much of the Bill is shaking things up and how much of it is just tidying-up.

Mr Webb: Absolutely, Chair. That is a key point. Certainly, going back to last week, clauses 1 to 3 would be considered new, because they are equivalent to the section 215 powers in the Town and Country Planning Act 1990. They would be new to Northern Ireland.

The Chairperson (Mr Butler): I turn to Glenda and Aoibheann, because that is a question that I will pose on every clause.

Thanks for mentioning clauses 1 to 3, because I was going to return to them. Clauses 1 to 3 are new provisions, and clause 4 is more of a copy and paste but with the tidying-up of the Belfast and Derry and Strabane stuff.

Does anyone else want in before I move on?

Mr Blair: Before we leave that, I have a quick question relating to some of the concerns that were expressed, which I understand. Is it the case that, irrespective of the affordability for a person or their traceability, for that matter, existing legislation covers buildings that are seriously dilapidated and a public health risk and action will be taken on those cases, irrespective of other matters?

Mr Webb: Yes. Are you talking about dangerous premises particularly?

Mr Blair: Yes, so the precedent is there.

Mr Webb: Absolutely.

Mr Blair: The buildings that attract antisocial behaviour and all sorts of other activity often present a serious health and safety risk to neighbours.

I am not negating the concerns over affordability; I am pointing out that there could be examples of where a person owns a number of companies and the company that owns the individual property may not be financially stable at a point in time but another company owned by the same people could be solvent.

The Chairperson (Mr Butler): That is a good point.

Mr McCrossan: That is why I was asking about hiding places. [Laughter.]

The Chairperson (Mr Butler): Do you have any declarations of interest to make?

Members, are we finished on clause 4?

The Chairperson (Mr Butler): We can return to it if anything else pops up.

In relation to clause 5, it has been suggested that, if the appealer can demonstrate that works have been paid for or organised and that there is a reasonable explanation of why further works have been delayed, the notice should not apply. I suppose that that is a test of reasonableness. Youth Assembly Members highlighted that it might be reasonable to grant exemptions or flexibility within the enforcement process. They recognised that not all cases of dilapidation are straightforward and that environmental and practical considerations might justify an alternative approach.

Do you have any comments on the proposals regarding whether works have been paid for or planned and how robust that system might be?

Mr Webb: First, I will address the exemptions. When it comes to maintenance notices and dilapidation notices, the Bill generally provides for a degree of pre-notice engagement with property owners, occupiers, those with an interest in the property etc. Therefore, the council can use a common-sense approach and engage early before it initiates official action and proceedings. It can take into account the factors on the ground that are unique to each case. As I said, it is very much a matter of looking at cases on a case-by-case basis. In that respect, there is already scope in the guidance and the Bill for councils to factor in the broader issues that, they feel, might be relevant, such as the likelihood of cost recovery. It is a discretionary power, and it is flexible for the councils in that respect.

On costs, Chair, were you asking about work that had already been carried out and for which costs had already been incurred?

The Chairperson (Mr Butler): The argument may be in cases where work has already been carried out and on whether it was sufficient, but it is also about the promise of works and whether that work has been agreed in principle. That is the main thrust of it. Some of the discussions around that relate to common-sense issues and the reality of trying to get a tradesperson on the ground — someone who is competent and ready to do the work — and the availability of materials.

Mr Webb: Absolutely. The draft guidance includes example letters of notices, but there is scope for the councils to determine the timescales involved and to factor in whether there is good faith and engagement between the property owner or occupier and the council. If there is, they can incorporate all that. If there is a promise of works but a delay that is beyond the individual's control, that is something that the council can accommodate.

The Chairperson (Mr Butler): There is a clear example at the moment. We have had high winds, which seem to be coming with greater regularity. If you were a roofer or handyperson, you could find yourself being very busy, and, obviously, projects that were in train would possibly have to wait. There is, therefore, an element of common sense.

Before I bring other members in to ask questions on clause 5, is any provision in it new, or does it just tidy up existing powers?

Mr Allison: It is basically a standard appeal procedure, which currently sits under the 1978 Order.

The Chairperson (Mr Butler): Brilliant. Not a bother. Thank you.

Mr McAleer: The message that we have been getting from councils is that, although they broadly welcome the Bill, their concern is about the costs and resources associated with it. In an appeals scenario, for example, there is the financial burden that might be associated with a council perhaps getting itself caught up in a court case.

Mr Webb: There certainly could be costs involved in, for example, pursuing civil debts through the courts, but, as we have suggested, those powers already exist in statute for the councils; we are consolidating and modernising them, avoiding the use of antiquated terminology, such as "ruinous", and standardising the terminology to make things easier. The powers are discretionary, so councils can choose the cases that they act on and pursue.

When it comes to the likelihood of cost recovery, the potential for recovery of certain costs is provided for in the Bill. There are potential income sources. If we go back to clauses 1 to 3, which we looked at last week, we can see the £500 fixed penalty notice that would come to councils and potentially assist with costs. We will look at fees later when we come to other provisions such as those on dangerous structure and emergency action. There will be fees regulations to recoup and cover costs of surveys and other such things. The Bill provides for the potential sale of materials not claimed by an owner or occupier within three days, which is another potential source of proceeds.

There are then the more fundamental powers — cost recovery mechanisms — for statutory charges to be applied where there are outstanding costs because the council has chosen to intervene and carry out works. Those costs will automatically be charged on the property, and there is, ultimately, the power of sale under the Conveyancing Act 1881, should it come to that.

Mr McAleer: I have a wee follow-up to that. We recognise that councils will have different priorities: could uneven implementation of the Bill, in itself, create the possibility of appeals and challenges?

Mr Webb: I take the point that councils may differ in their implementation. Again, however, a lot of cases will involve low-level maintenance that will involve relatively low costs and little admin. When it comes to applying the guidance and following the requirements and provisions in the Bill, I do not think that a difference across councils could, in itself, generate challenges, but we can certainly seek advice to clarify that.

Mr Allison: We saw some figures a while back — they were from Belfast, I think — on compliance. The rate of compliance with the current system is high, and we did not see a great number of appeals.

Mr McAleer: Thank you.

Mr McCrossan: Before I get into my questions, I will follow up on something that Declan raised. You said that costs are relatively low: that may be the case in general, but, in rural constituencies such as the one that I represent — Declan and Tom also represent it— we have large, old mill buildings that are derelict. They present not a low-cost but a major problem, particularly given that one of the mills is a listed building. That building is in limbo, by the way, because the owner has died and it is lying in probate. I am not sure that the cost will be consistently low; there is potential for it to be costly.

Mr Webb: Of course, you are absolutely right: certain cases will be more costly than others, but those cases are likely to be fewer. In rural areas specifically, the fact that a property is dilapidated or in disrepair would not in itself be sufficient for a council to act. It has to impact on local amenity. If it is an isolated dwelling that is not impacting on a neighbouring property or community, it may well be that a council does not consider it to have an impact on the amenity.

Mr McCrossan: I am being parochial, but both examples that I gave have an impact. One is Smyth's Mill in the town centre. It is in a fairly prominent location and is an eyesore, but the owner has died, so there are major problems there. I just want to correct that one wee element for the simple reason that I see the potential for a massive problem in certain parts, although not across the board.

I will focus my questions on appeals. Is the 28-day appeal window realistic for owners who face demolition, particularly where legal advice can be slow and surveys and finance must be secured to resolve the problem?

Mr Allison: A council can vary the period, taking into account the circumstances on the ground.

Mr McCrossan: Yes. Some councils would probably take a harder line than others.

Mr Allison: Yes.

Mr McCrossan: The grounds for appeal seem to be narrowly defined. Does that risk denying any meaningful challenge in cases where a council acts disproportionately but within the technical wording?

Mr Webb: We use terms such as "seriously detrimental" when it comes to grounds for appeal. As I said, we will look at that with NILGA. If a council acted on a property that was not in a seriously detrimental state using the powers under those clauses, there would be genuine grounds for appeal, and it would likely prompt an appeal by a property owner. Clause 5(2)(b) states:

That would be a real scenario for an appeal. If the member feels that particular cases are not covered under the appeals clause and that it may shut down real challenge to such cases, we would be happy to look at those.

Mr McCrossan: I am happy to revisit that, Simon. Thank you for that.

When an enforcement notice takes effect, the legal process can be expensive and arduous — it can be expensive because it is arduous. Is there a danger that vulnerable or low-income owners, maybe people who inherited property that was already in a state of dilapidation, would be unable to exercise appeal rights due to the limits placed on them as a result of the legal costs or the complexity of the legal system?

Mr Allison: We looked at the issue of someone inheriting a property. There are several outlets for them, such as selling it before they do anything to it: if they cannot afford to do anything to it, they could sell it again for a higher price.

Mr McCrossan: I am thinking about what a realistic approach would be. If my great-grandfather were alive and, God forbid, he left me a house that had not had work done to it in years that I then had the misfortune of inheriting, with no means to restore it, you could pursue me to court and say, "Well, you could have sold it". Such a house may not be attractive for someone to buy, however, particularly in town centres that are dilapidated and where there is a lot of vacant property — you could not give property away in some places. What would happen in that situation? That is of concern. I framed that question in that way only because that problem exists in the street where my office is situated.

Mr Webb: I appreciate the point. The cases that are likely to fall into that category will be at the extreme end and relatively few. That goes back to the point about councils being aware of the scenario on the ground — the details of each case — and adopting a common-sense approach. We have not sought to be overly prescriptive about exactly what councils should do in every case to allow flexibility for such circumstances.

Mr McCrossan: Thank you.

Ms Murphy: We have heard a number of concerns on this from stakeholders over the past months. Some wanted to extend the 28-day period, and some wanted to shorten it. Your remarks about the pre-engagement stage irons that out, in my mind.

This question is more out of curiosity than anything else. Clause 22(3) states:

Is that a general subsection from existing legislation, or why is it in there otherwise? I am not au fait with the Ts and Cs of properly serving a notice, but, surely to God, people would have the right to raise that as a concern. Do not get me wrong; I know that some people may try to use and abuse it. If there are any genuine cases, however, it seems that the inclusion of that subsection would mean that that person would have no rights.

Mr Webb: If you would like us to, I can check to be absolutely sure whether it is a general thing or is specific to this Bill. My reading of it is that it is for where an appeal against a notice has been brought successfully under the Bill. It states:

— I think that that means in an unrelated proceeding —

It assumes that the council has adhered to the process and has served a notice according to the requirements of the guidance and the Interpretation Act. As I mentioned, serving a notice can be as simple as affixing it to the property if the council has not been able to locate the owner, so it should always be within the council's powers to serve a notice appropriately.

Is there any other angle that you are aware of on that, Mark?

Mr Allison: I cannot think of anything. It is probably a general thing that the initial draftsman has inserted.

Mr Webb: We are happy to check that. We will get some legal advice to clarify that.

The Chairperson (Mr Butler): That was a good question, Áine.

Are there any other questions on clause 5, troops? No. Excellent, thank you very much.

We move on to clause 6. To refresh members' memories, we have heard a suggested amendment to clause 6(1). Councils, through NILGA, suggest that that subsection should include the court making an order that the person must comply with clause 4(2)(a) or with clause 4(2)(b) and compel them to carry out the works. Approximately 95% of respondents to the informal survey agreed that councils should be able to require owners to tidy up neglected land or buildings that spoil the look of an area. Youth Assembly Members highlighted concerns about what would happen where an owner was unable to afford the repairs, and some felt that circumstances should be considered on a case-by-case basis.

I remind members that the current wording in clause 6(1) is that the court "may" order the person to comply with the notice or condition. The rights that are engaged here are article 6 and A1P1. The Committee may wish to raise with the Department, first, the classification of the offence; secondly, the nature of the offence; and, thirdly, the penalties for the offence. The Committee may wish to consider whether controls on the use of the property are proportionate and strike a fair balance between the rights of the community and those of the interested person.

This one has piqued my interest from the outset of our consideration of the Bill because it raises an issue that is local to me and that Daniel has touched on. I am picturing a large, dilapidated old mill and the specific dangers that it poses compared with a much more minor infringement that may have a different detriment. The difference in detriment may be a public safety issue and a significant loss of amenity in an area to a terraced property, for instance, that has bulging walls or something else that is of reasonably significant risk.

On the suggested amendment to clause 6(1), the councils and NILGA suggested that the clause should include the court making an order that the person must comply with clauses 4(2)(a) or 4(2)(b) and compel them to carry out the work. The reason that I prefaced that point as I did goes back to what the Youth Assembly said about every case needing to be looked at on its merits. Is there a way of including that so that it is based on the quantification of risk and the loss of amenity?

Mr Webb: The court can already make an order under clause 6(1). It ends by stating:

The Chairperson (Mr Butler): They are looking for it to state that the person "must comply" with clauses 4(2)(a) and 4(2)(b) and compel them to carry out the work.

Mr Webb: The issue of the words "must" and "may" came up with the Office of the Legislative Counsel (OLC). We touched on that with it. The term "may" reflects the fact that the council issues the notice initially and that the case then goes to the court. At that point, the court is given the power to issue, which it almost certainly will do. The absence of the word "must" will not undermine that power in any way.

I appreciate your point. We will confirm that, but I do not think that the issue that people have perceived with the use of the word "may", rather than "must", is there.

On the question of assessing on a case-by-case basis, the Department very much envisages that councils would, in implementing the Bill, look at scenarios case by case.

Sorry, Chair, what was the second point from the Youth Assembly?

The Chairperson (Mr Butler): The Youth Assembly raised that case-by-case aspect. I gave that example to picture an instance where there would be a measurable, irrefutable public safety risk of repeated fires and break-ins and that type of stuff.

Mr Webb: That takes us back to the issue of where on a scale "seriously detrimental" and "detrimental" are, relative to one another. We will almost certainly discuss that with Building Control NI and NILGA at our meeting.

For clarification, the issue of whether a building is dangerous and poses a risk takes us to the later clauses on the dangerous structure notice. You described the example of the mill: a building could be seriously dilapidated but not pose a danger. I certainly understand your point, however.

The Chairperson (Mr Butler): We may communicate with NILGA on this. From reading the NILGA suggestion, my understanding is that it is seeking for the obligation to be put into legislation so that we tell the court what to do, but we have to be separate from the court. The courts are there to make the decision, and they have the power to make it so that a person must comply.

Mr Webb: Yes. Absolutely.

The Chairperson (Mr Butler): I will bottom that out with NILGA to give it a chance to explain that better, because that is certainly how it looks to me.

Mr Blair: I do not think that the officials can put in the wording "must" in relation to what, we think, the courts should do.

The Chairperson (Mr Butler): That is what I am saying, but I am wondering whether that is what NILGA actually meant, because it looks like that is the case.

Mr Blair: Yes, so you know where I am coming from on that.

On the issue of the case-by-case basis and taking into consideration individual circumstances or difficulties, the courts can and often do take that into account. We read that regularly in court reports, so I expect that. We have to leave it for the courts to decide.

The Chairperson (Mr Butler): The courts will go on the basis of expert opinion. We have all been in situations — I am involved in such a case in Lisburn — where there are two experts whose opinions diverge and the court has to make a judgement.

Mr Blair: Best to leave it to the court, whatever it is.

The Chairperson (Mr Butler): Yes. That is how law firms make their money: by giving different opinions and whatever.

My final question is the same as I will ask for every clause. Mark pointed to the fines but also the threat of being at His Majesty's pleasure at some point. Given the significance of the clause, are there any changes to the penalty regime as a result of clause 6?

Mr Allison: Yes. The current penalty is up to a maximum fine of only £2,500 in the Magistrates' Court. We are uplifting the fine to the statutory maximum of £5,000 or, on indictment, the unlimited fine or two years in prison or both.

The Chairperson (Mr Butler): Is the two years a change, or is that what is in part of it?

Mr Allison: There is no change. It is just the —.

The Chairperson (Mr Butler): There is no change to that aspect; the change is from the £2,500 maximum fine to the £5,000 maximum fine.

Mr Allison: Yes.

Mr Webb: Chair, may I seek clarification on your point about bottoming things out with NILGA on the use of "may"? Is that something that you want officials to do, or will the Committee pick up on that?

The Chairperson (Mr Butler): You could certainly put it down as a marker. The reason I said that the Committee would do it is that we took that point from when NILGA gave evidence to the Committee and following it up with NILGA could give it an opportunity to explain it better to us, even through written communication. Is that OK? I will not dump it all on you guys. Well, I will dump as much as I can on you, obviously. [Laughter.]

OK, thank you.

Do members have any questions? Declan, are you OK on clause 6?

Mr McAleer: On cost recovery, Retail NI raised the matter of whether the proposed fines are a sufficient disincentive. Do you feel that what you have talked about is a sufficient disincentive for building owners?

Mr Webb: The Department's position is that we consider the measures to be sufficient, given that we have included up to two years in prison and an unlimited fine for conviction on indictment. Remember that those are for dilapidation, and we have not got into the issue of dangerous structures yet. Those seem like a strong incentive to act, and there is no option to discharge liability by way of a fixed penalty notice under a dilapidation notice as there would be with the lower-level maintenance notice.

Mr McCrossan: I am a wee bit concerned about the risk of imprisonment. I know that it is set out so that it is wide open, but, when such things exist, there is always the potential of them being used. Would a better response not be to repossess the building, as opposed to imposing a criminal conviction or imprisonment? I am just working through that. That seems to be at the extreme end.

Mr Webb: Yes, and it would be used as a last resort; it is not something that councils would jump to. Someone could end up in a court with a summary conviction and having to pay the maximum fine of £5,000, but I imagine that the number of cases falling under clause 6(5)(b) would be very small. There is a balance to be struck between providing enough of a disincentive and going overboard. We have consulted the Courts and Tribunals Service on that, and it was content with the Bill.

Mr McCrossan: The justice system is buckling, and it adds significant pressure there. Dilapidation is an issue, and I appreciate that we are talking about the most extreme cases, but I just thought that there could have been a better response to that.

Mr Webb: You mentioned repossession, and we talked about the power of sale, which is in the Bill, but that is there as a means of cost recovery, as opposed to a sanction. That is the nature of it. I suppose that both could be in play but for different reasons.

Mr McCrossan: We are talking about an extreme circumstance. It would probably apply to a very small number of cases, if any. I would have thought that, as opposed to a criminal conviction, where the problem would still exist, a more proportionate response may be to have a repossession element whereby the council would take charge of the property and sell it. Ultimately, whatever is gained from that could replenish the funds of the local council.

Mr Webb: With the maintenance notice for the lower-level dilapidation, the person can discharge their liability for conviction through the fixed penalty notice, but we have not included an option to do that in this case. The issues of not legally complying and those of carrying out the work and recovering the costs are somewhat of a twin track, if you like. We will certainly take a note of that observation, thank you.

Mr McCrossan: Yes. That is grand. Thank you.

The Chairperson (Mr Butler): Members, are there any further questions on that clause? No? Thank you.

OK, members, thank you very much. That concludes the deliberations on clauses 4, 5 and 6. I want to confirm whether any further information is needed from the Department, other than what has been recorded.

Further discussion can take place on those clauses next week. We will come back to each clause, as they overlap a little. Clerk, do you need anything confirmed?

The Committee Clerk: No.

The Chairperson (Mr Butler): OK. We shall move on. Will you give us a brief overview of clauses 7 to 9, which are about dangerous structure notices, appeals and breaches?

Mr Allison: Clauses 7 to 9 consolidate, amend and enhance the powers available to councils to deal with dangerous buildings and structures under a range of existing legislation. That includes the Belfast Improvement Acts of 1845 and 1878; the Town Improvement Clauses Act 1847, which applies to all councils apart from Belfast and Derry City and Strabane; and the Londonderry Corporation Act 1918, which applies just to Derry City and Strabane. The additional powers that have been encapsulated are principally contained in sections 77 and 78 of the Building Act 1984, which applies to England and Wales. Clauses 7 to 9 therefore capture the essence of the existing provisions and those replicated in the Building Act; that is, with no significant loss of enforcement powers.

Clause 7 allows councils to serve a dangerous structure notice to require owners, occupiers and others with a relevant interest to take appropriate remedial action, including demolition, where a council considers that a building is in a dangerous condition or is used to carry such loads as to be dangerous, unless it wants to take emergency action under clause 10. We have made it clear in the guidance that demolition should be a last resort and councils should be aware of the possibility of owners initiating court proceedings for deprivation of property. In a case where a council considers that danger has arisen from overloading, the notice may also restrict the use of the building until the council is satisfied that the necessary remedial work has been carried out. Clause 7 also gives councils the power to charge a fee for exercising its powers under the clause, and the fees will be specified in regulations to be made at a later stage.

Clause 8 is the appeal provision and provides for appeals to a Magistrates' Court against the notice, stipulating the grounds for appeal, which are similar to previous appeal provisions. As it involves a dangerous structure, the appeal time frame is 14 days.

Clause 9 is about breach and provides that, where the person fails to comply with the notice or any conditions therein, a council can apply to the Magistrates' Court for an order compelling a person to take the steps specified. Clause 9 also allows councils to take the necessary remedial action for non-compliance with the notice or the court order and sets out the offence and penalty provisions. The penalties are the same as for the dilapidation notice: a £5,000 fine in the Magistrates' Court or, on indictment, an unlimited fine or up to two years in prison. Again, due to the seriousness of the offence, there is no fixed penalty.

The Chairperson (Mr Butler): Thank you very much. We have quite a bit to read in here, guys. There was significant interest in these clauses.

On clause 7, Propertymark said that consideration should be given to an amendment to include adjacent buildings or places that have become dangerous because of the state of another building. Councils said that the legislation should apply only to structures that are a risk to public safety and that that needs to be clarified in legislation. For example, a dangerous structure notice should not be used where a building is at risk of falling but is not a risk to the public. I am not sure how you would do that. Councils would welcome clarification of whether clauses 7 to 9 are also intended to protect persons who are unlawfully accessing a building or structure — for example, trespassers or young people.

There is a concern about the repeal of legislation used frequently and successfully by Belfast City Council's building control service allowing it to act on dangerous structures when the owner cannot be found. I think that that is found in Part IV of the Belfast Improvement Act 1878 and section 76 of the Belfast Corporation Act 1911. Belfast City Council states:

The councils also suggested that dangerous structures assessments should be conducted by building control officers as opposed to planners.

The Landlords Association for Northern Ireland (LANI) suggested that, in clause 7(2), "must" should be replaced with "may" in order to give councils discretion. Other stakeholders highlighted that clause 7(5) is unclear on whether restrictions on the use of the building could extend to neighbouring buildings that may be affected. Approximately 96% of respondents to the informal survey commented that it was important that dangerous structures and unsafe buildings are dealt with quickly. Youth Assembly Members consistently identified safety at neglected sites as one of their biggest concerns and linked them to antisocial behaviour.

I advise members to note that the convention rights engaged here are article 6, A1P1. The Committee may wish to consider whether the controls on the use of property are proportionate and strike a fair balance between the general interest of the community and the interests of private persons, including the time frames given to comply. Given that we are talking about dangerous structures, it is hard to see how that would have an impact.

Quite a few issues have been raised in relation to clause 7. I will start by asking about councils' concerns regarding the repeal of legislation and whether or not they have been repealed. Is there a table? That just occurred to me as I was reading this. I have asked whether those provisions are copy-overs or new provisions. Is there a table of repealed legislation to ensure that the legal process on the other side of this is not muddied by people trying to work off old legislation that no longer applies?

Mr Allison: Yes. The repeals are in schedule 2. We have a table for our own use, where we set out the powers to be repealed and what the new powers are. That is to ensure that nothing falls between two stools. You mentioned the 1878 Act. We are aware that —.

The Chairperson (Mr Butler): That was to do with where the owners of dangerous structures could not be found.

Mr Allison: The whole of Part 9 of the 1878 Act is being repealed. Anything that is being repealed is being replicated in clauses 4 to 9.

There is something of a human rights issue around the power of enforced sale. I know that Belfast City Council took legal advice a few years ago. It is a very old power. We intend to use the powers of sale in the Conveyancing Act 1881. That is a much less contentious way of achieving the same end.

The Chairperson (Mr Butler): Is that in relation to the Belfast Improvement Act 1878?

Mr Allison: Yes, the 1878 Act; I think that it is section 118.

The Chairperson (Mr Butler): You suggested that it is a much more efficient power to use.

Mr Webb: It is the Conveyancing Act 1881.

Mr Allison: Clause 13 refers to the Conveyancing Act 1881 and the power of sale.

Mr Webb: Chair, we wondered whether it had come across clearly to local government representatives that there is a power of sale under the 1881 Act. Given the wording of the Bill, that may not be immediately obvious. That is something that we will highlight when we meet NILGA and BCNI.

The Chairperson (Mr Butler): That is a good point. As I said at the start, we may go back to clauses 1 to 3 and clauses 4 to 9 when we get to them, because, given how the Bill was drafted — it is much more streamlined — some of the fears will be addressed later in our deliberations.

Mr Allison: We can share the table with you so that you can see the current powers and where they are being replicated in the Bill.

The Chairperson (Mr Butler): OK. The Conveyancing Act dates from 1881, so old legislation does not necessarily mean bad legislation. [Laughter.]

Mr Webb: Indeed.

Mr McCrossan: Would you be familiar with that time? [Laughter.]

Mr Wilson: He chaired that one.

Mr Blair: You were in charge then.

The Chairperson (Mr Butler): Declan, do you want to ask anything on clause 7?

Mr McAleer: No, I am OK. I might come back in the second loop.

The Chairperson (Mr Butler): OK. Do members have any further interest in clause 7?

Mr Blair: Chair, may I come in?

The Chairperson (Mr Butler): Yes. Go ahead, John.

Mr Blair: I am not sure which clause my point comes under, but I will refer to it under clause 7 so that it can be dealt with. From discussions with NILGA, you correctly reflected the notion that it should apply to dangerous structures only. First, there is the matter of definition. There are also different types of dangers. I hope that officials can that take away. A building will have a degree of dilapidation or it will not be subject to the Bill in the first place. It will already be dilapidated if it is being dealt with under the Bill.

Separate to that, the issue of when dilapidation becomes dangerous needs careful consideration, because there are buildings that may not be imminently dangerous but which attract antisocial behaviour or criminality, which is a risk and therefore a danger to people living next door or to passers-by. I hope that the definition of "dangerous" does not become a strictly structural one. There can be dangers to neighbours and others in the locality that are not necessarily from a roof that is about to fall off. I have experienced that.

Mr McCrossan: John, do you mean exposure to arson and stuff like that?

Mr Blair: On behalf of others.

The Chairperson (Mr Butler): Declan, do you want to come in on John's point?

Mr McAleer: Yes, but not on John's point.

The Chairperson (Mr Butler): That is OK.

Mr McAleer: On dangerous structure notices, the Landlords Association made the point in its evidence that we want to avoid a situation where the legislation inadvertently encourages people to demolish a building; for example, a listed building. It is easier to demolish such a building than to spend the money necessary to bring it up to standard. How can the Bill avoid creating that situation?

Mr Webb: I will address the first point. On dangerous structures, the guidance states that the legislation:

The draft statutory guidance therefore provides a broad understanding of the words.

Sorry: will the member repeat the second point?

Mr McAleer: An issue that was raised with us is that, if a building owner is served a notice to bring a building up to the appropriate standard but they do not want to pay the amount required, it is easier for them to demolish the building, even a listed one. How can the legislation avoid encouraging or incentivising demolition?

Mr Allison: Under clause 7(3), a person can demolish a building if they so wish, but, for a listed building, there is a lot of red tape to go through. It is not a simple matter of demolishing it. There will be planning implications, listed building consents and so forth.

Mr Webb: Clause 17 is "Consultation with planning department", so there is a requirement in the Bill to consult the relevant planning department in the council or, indeed, DFC in the case of historic monuments.

Mr Wilson: If it is allowed to happen, you could have one department actively working against another, with competing policies that do not ultimately serve the purpose that they were intended to serve, which would be a problem. The historic environment division can be quite dramatic, for want of a better word. I have had many's the run-in with it, and it does not always see sense. Marlborough House is a case in point. That is something to be concerned about.

In my area, there is a town on a steep hill, and we had an issue with a building there. An unintended consequence was that it caused problems for the building beside it: because they are on a hill, some of the structural integrity was removed from the next-door property. How do we deal with those situations? The person who owns the property next door to the deteriorating property can have maintained an adequate frontage or facade to their building, but, suddenly, a deterioration in the building next door creates issues for them. Are they suddenly under the cosh with this rule?

Mr Webb: Under the clauses, if both buildings have become dangerous — even if one is the result of the other being dangerous — the council would have the option to serve a notice on both properties. It would be up to the two parties involved to determine through their own legal action where responsibility lies and who should ultimately bear the cost. The council could pursue the two individually, and then the two parties would need to take legal action. If one party felt that the other was responsible, it would have to pursue its own private action.

The Chairperson (Mr Butler): Daniel?

Mr McCrossan: Yes?

The Chairperson (Mr Butler): Have you nothing to ask on this one?

Mr McCrossan: I could say something, but I will not.

The Chairperson (Mr Butler): You are saving yourself.

Ms Murphy: I have written something down from previous meetings with stakeholders, but I do not know why I have written it down. I will ask you, anyway. Clause 7(7) states:

What is that fee for? Is it for serving the notice, or is it for any remedial works that the council may have to carry out?

Mr Allison: We have a template set of fees that are used by a borough in London. The fee is basically for anything to do with the case. It could be the court action, surveyors' fees — there is a long list. We hope to share those regulations when we meet NILGA so that it can see them, and we will be ahead of the game when we come to do our regulations.

Ms Murphy: I sit on another Committee that recently scrutinised a Bill, and, unfortunately, the regulations will come in after the Bill. In this case, will we get to see the regulations beforehand?

Mr Allison: Yes, we hope that that will be the case. We will have to consult, but we will already have shared them with NILGA, etc. When we come to consult, it will, hopefully, be a rubber-stamping exercise, and then we can get them up via the SL1 to run in parallel with what we have done on the Bill.

Mr Webb: Mark touched on a few of the examples of what the fee would be for. It could cover surveys, the cost of serving the notice, monitoring inspections, obtaining the court order, court attendance and inspections. The fees can cover a wide range of things.

Ms Murphy: Will there be an upper tier to fees? I assume that, when you produce the regulations, you will include all those areas, such as survey fees. Will set fees be suggested in the regulations?

Mr Allison: They can be taken from the London fees, but we will be led by them. They might think that that is not sufficient.

Ms Murphy: So there is some degree of flexibility.

Mr Allison: We will not say x number of pounds, because we will have no way of —.

Ms Murphy: Quantifying that.

Mr Allison: Yes.

The Chairperson (Mr Butler): You cannot control the fees that people may charge. It is an interesting point. People would not be able to game the system, because I imagine that only a small pool of people will be qualified to perform certain functions. The fees that are set out are basically for cost recovery.

We will try to cover clauses 8 and 9, but I will stop the session at 12.40 pm because the room is to be used at 1.10 pm and I have other items that I need to clear. Are members content that we move on to clause 8?

The Chairperson (Mr Butler): Councils have highlighted that they believe clause 8 to be unfair on councils, as a building has only to appear to be dangerous but, on appeal, the council needs to justify that it is dangerous. With regard to clause 8(3), it was highlighted by LANI that 14 days is too short a time for an appeal to deal with a dangerous structure. I see some merit in that. I remind members that the Department has advised that an appeal to the Magistrates' Court against the dangerous structure notice must be brought within 14 days, owing to the serious nature of the situation.

How do you respond to the concerns of councils and LANI? Do they have a fair point when they say that 14 days' notice is too short?

Mr Webb: The Department's view is that it is a reasonable expectation for councils to justify why they consider a building to be in a dangerous state of repair. That would seem to be a basic requirement. However, if it might warrant further discussion, we would be happy to bring it up with NILGA and Building Control at our February meeting.

On the length of the appeal period, we have consulted the Office of the Legislative Counsel, and it was considered by the Department to be adequate time, given, as you said, the serious nature of the potential offence.

The Chairperson (Mr Butler): Finally, is there anything new in clause 8, or is it captured in existing legislation?

Mr Allison: It is a read-across from the Building Act 1984.

The Chairperson (Mr Butler): Does it repeal anything in particular?

Mr Allison: The reference to dangerous structures in the current legislation is based on language from old legislation. There is different wording in different parts, and different terminology is used. We used the 1984 Act as a basis for modernising it.

Mr Webb: The table that we are happy to share with the Committee will detail that.

The Chairperson (Mr Butler): That would be useful. Thank you. Are members content with clause 8?

The Chairperson (Mr Butler): We will move on to clause 9. In relation to clause 9(5), it was suggested that the current fines are too lenient. The Department advised that, under article 5 of the Fines and Penalties (Northern Ireland) Order 1984, the statutory maximum fine payable in a Magistrates' Court is £5,000. On summary conviction, the maximum fine payable may be the same, but there is an opportunity for a higher fine on indictment, as determined by the court. I imagine that the opportunity to stay at His Majesty's pleasure is also there for non-payment of fines.

That would engage some rights. On article 6 of the European Convention on Human Rights in particular, the Committee may wish to consider whether the controls on property in the clause are proportionate and strike a fair balance between the rights of the community and the interested person.

I have no questions on that. Do members have any questions on clause 9, which relates to a breach of the dangerous structure notice and the fines as set out? Are members content?

The Chairperson (Mr Butler): I will bring clauses 7 to 9 to a conclusion. We look forward to any further information required from the Department regarding the clauses. Further deliberations, consultation and discussions can take place next week.

Thank you so much, gentlemen, for your attendance. We will start with clause 10 next week.