Official Report: Minutes of Evidence

The Chairperson (Mr Butler): I again welcome the officials, Simon Webb and Mark Allison, to answer questions and discuss issues as we go along. I also welcome our Bill officials: Aoibheann Baker and Glenda Doherty, who are Senior Assistant Clerks and predominantly work on the Bill. I refer you to the response from the Northern Ireland Local Government Association (NILGA) providing clarification on suggested amendments to clause 6.

Members, do we agree to proceed to deliberations?

The Chairperson (Mr Butler): Thank you.

Members, clauses 1 to 9 were discussed at the meetings on 5 February and 12 February, and we have included them here for reference in case the Committee wishes to return to them. The convention rights are noted in green text under the relevant clauses. Before we continue to the clauses, I highlight the fact that we have received the response from NILGA, which I mentioned a minute or two ago. I want to read this in. NILGA has stated that:

I think that NILGA is worried that that will bring the council and courts into conflict. Obviously, as we pointed out last week, we cannot tell the courts what to do. It continues:

Members, I am not sure whether that takes us much further on the matter. It complicates it a little bit for me. We can return to it at a later stage, if you are minded to do so. Before I suggest that we move on to clause 10, I ask the Department officials about that. You heard that response from NILGA, and if you need it supplied to you —. You are having a round table with NILGA, so I am sure that you will pick it up at that stage rather than our getting bogged down with it at this stage. Is that OK? Will we move on?

Mr Simon Webb (Department of Agriculture, Environment and Rural Affairs): Yes, absolutely. Thanks, Chair. We are meeting the local government representatives on 24 February.

The Chairperson (Mr Butler): OK. That is useful.

We will go to clause 10, if members are content. Simon and Mark, would you like to give us a brief overview of that clause?

Mr Mark Allison (Department of Agriculture, Environment and Rural Affairs): Clause 10, "Emergency action", deals with a building that is considered by a council to be in such a state or carrying such loads as to be dangerous. Immediate action should be taken to remove the danger, and this allows the council to take the necessary steps for that purpose. The clause also requires that, after seven days from the day when the remedial works began, the council must serve notice on at least one person who has an in interest in the building, if they can be found, advising of the action being taken and that they may appeal to a Magistrates' Court against that action, stipulating the grounds for appeal. It is important to note that that appeal does not prevent the council from continuing its work to remove the danger.

Clause 10 also deals with cases where an interested person sustains damage as a result of the exercise of the council's powers. In such cases, the person is entitled to compensation if a Magistrates' Court determines that the council was not justified in the exercise of those powers. Any disputes around compensation shall be determined by the Lands Tribunal or an agreed arbitrator. Clause 10 also allows the council to charge a fee for exercising its powers under the clause. The fees will be specified in regulations to be made by the Department at a later stage.

The Chairperson (Mr Butler): OK. Most respondents were in support of clause 10, as they felt that emergency action powers are important. Some of the comments mentioned clarity over whether an emergency action notice can be given for something outside the owner's control, such as:

collision/accident. Councils have suggested that there is a need for other stakeholders — for example, PSNI and DFI Roads — to be written into legislation.

Clause 10(2) further states that the council "may" take whatever steps are necessary to remove danger but must first carry out an assessment. Further detail is required on what that assessment entails. Councils highlight that grounds for appeal are wider in clause 10(8) as clause 10(1) only requires a building to "appear" dangerous, but, on appeal, a council must justify what is problematic. That creates a potential contradiction as the wording suggests the initial decision can be made on a lower threshold of evidence, yet the council may later be required to provide full justification, potentially exposing it to substantial financial risk and deterring use of the powers.

On clause 10(9), it was asked whether an owner's ability to appeal within 14 days prohibits a council taking action, thus delaying emergency action. It was also suggested that 14 days is too short a time period for an appeal.

On clause 10(11) and clause 10(12), it was suggested that the compensation mentioned could result in councils being reluctant to act on this clause for fear of financial penalty.

Approximately 96% of respondents to the informal survey stated that councils should be able to take immediate action if a building is at risk of collapse or if it poses danger. Members, just note that the rights engaged in this are article 1 of protocol 1 (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 private interests of the interested person, given that this is about emergency and things that pertain to be immediate. I read that into the record anyway, even though what clause 10 is trying to achieve is pretty fair.

I will open up with one question, if that is OK. Are the councils' concerns regarding justification on appeal valid? If not, what reassurances can you give them?

Mr Webb: The issue with the appeal focuses on whether the building "appears" to be dangerous, as the council refers to that terminology. In the Department's view, that is just an issue with the interpretation of the wording. In the guidance, it is clear that councils should only use the clause 10 emergency powers where immediate action is required. Clause 10(1), which the council cites, does not say that the building has to "appear" to be dangerous. It actually says that it has to appear to the council that it "is" dangerous, so the building has to be deemed to be and appear to be dangerous to the council. It is not sufficient just to "appear" dangerous. There is a subtle distinction there, but the Department is content that the clause, in its current wording, essentially does what the councils want it to do.

The Chairperson (Mr Butler): Before you move on, does that wording appear in legislation that already exists, and is it a carry-over? We will obviously ask that on every clause as we go through.

Mr Allison: The emergency action powers are available in the very old legislation, through lots of different terminologies and different words. We have updated it in line with the newer powers in the Building Act 1984 for England and Wales.

The Chairperson (Mr Butler): And that is something that councils use at the moment?

Mr Allison: No, they use the old Victorian legislation in relation to this. It depends on what council it is and in what way their Act is worded. Some call buildings "dilapidated", some call them "neglected" and some call them "ruinous".

The Chairperson (Mr Butler): That is part of the purpose of this legislation — conformity and uniformity?

Mr Allison: Yes.

The Chairperson (Mr Butler): OK. We may return to that one just for clarity, because I thought that I had got it, but then there was a seed of doubt. When you talked, you sort of got me, and then I went, "But hold on". I wanted a wee bit in terms of interpretation. We will tease that out a wee bit further. On that particular matter — clause 10(1), the "appear" piece and the appeals — are members content?

Mr McAleer: There is a comment that councils must advise at least one person with an interest in the building. What if a building is derelict and your land searches do not reveal any such person? What do you do in those circumstances?

Mr Webb: Is that about issuing some sort of notice?

Mr McAleer: Yes. The paper states:

Mr Webb: Yes, provided that it is "reasonably practicable". Is that what we are talking about in clause 10(4)?

Mr McAleer: Yes.

Mr Webb: In that instance, I take you back to the way in which a notice may be served. The council could serve a notice by way of affixing it to the property, if there is not an individual to specifically address the notice to. It could be served to "the owner" and affixed to the property in need of emergency action.

The Chairperson (Mr Butler): Are there any other queries or questions on clause 10? There is a suggestion that 14 days for an appeal is too short a period. Is that reasonable?

Mr Allison: We copied that over from the dangerous structure notice. Obviously, in that case, the appeal is against the works, so the works will already have been in process. It could be changed, but it is not going to stop the works.

The Chairperson (Mr Butler): No, because, at the end of the day, it is an emergency, so you cannot put something such as that into abeyance.

Are members content with that at this stage? Obviously, we will return to the clauses in the clause-by-clause scrutiny.

Ms Murphy: I have a quick one about the powers and actions attributed to the notice. Is there any overlap between the powers in the notice and those in the Defective Premises Act 2024?

Mr Allison: Is that in clause 10?

Ms Murphy: Sorry, that is in clause 11. Are we still on clause 10?

The Chairperson (Mr Butler): We are not there yet. Is that OK?

Ms Murphy: I will feed that in again, then.

The Chairperson (Mr Butler): Áine does that with all our witnesses; she tries to catch you out.

Obviously, there is quite a bit to clause 10. Are there any new or novel items in it, or are they all taken from existing legislation?

Mr Allison: When the Bill was being scrutinised by the Departmental Solicitor's Office, the bit of that clause about notifying the person was not in it. That was put in because there has to be some sort of appeal procedure.

The Chairperson (Mr Butler): Yes, there has to be one. That is the only new piece, and that is reasonable and fair because of the human rights aspect.

Are members content with clause 10?

The Chairperson (Mr Butler): We now move to clauses 11(7), 11(8) and 22(1). Councils have suggested that those clauses be urgently reviewed. In terms of rights engaged, 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 private interests of the interested person.

Most respondents were opposed to clause 11. Councils highlighted that they would like clear guidance on circumstances appropriate to issue this notice type. They stated the example in the guidance of an incorrectly installed staircase being addressed under statutory nuisance is legally inaccurate. They cited article 63 of the Housing (Northern Ireland) Order 1981, which provides statutory powers to Northern Ireland Housing Executive (NIHE) to intervene where unoccupied properties pose risk to occupied dwellings, and the potential for duplication, which means that roles between NIHE and councils need clearly defined. It was said that defective premises powers should sit with building control officers rather than planners, as structural assessments are required and planners lack appropriate qualifications. Clause 11(3) allows councils to carry out works by default unless an owner issues a counter-notice. Councils strongly opposed that approach, arguing that it removes the incentive for owners to act and transfers costs unfairly to councils. Clauses 11(7), 11(8) and 22(1) were referenced, and an urgent review of those clauses was called for.

I have one question to open up proceedings. Will you clarify whether the councils' concerns in relation to the duplication of NIHE powers have been considered so as to avoid conflict in the enforcement of the notice?

Mr Webb: Effectively, clause 11 is a replication of article 65 on defective premises of the 1978 Order. Councils already have those powers, and we will be discussing the use of them at our meeting next week. The Housing Executive reference is in the Housing (Northern Ireland) Order. The power that we are including goes beyond Housing Executive properties; it also includes a whole suite of privately owned properties. In that sense, a wider power was considered to be required.

The Chairperson (Mr Butler): A wee thing has just occurred to me. Private developments across council areas now have to have a percentage of affordable or social housing, so it is important that we future-proof our legislation. There will be an impact on amenity. Part of this is about amenity, part of it is about detriment and part of it is about dilapidation. It is pretty useful that that is being questioned and teased out at this time, not for existing provision but for future provision when it comes to mixed-tenure developments. That is more of an observation.

Members, I invite any queries or questions on clause 11. Áine, I will bring you in first.

Ms Murphy: I wonder why. I go back to a query that was raised by Suzie Cave when she presented her research paper to the Committee a number of months ago: how will the defective premises notice and its associated powers work alongside or complement the Defective Premises Act?

Mr Allison: We have had several meetings with DFC about the Defective Premises (Northern Ireland) Order 1975. There is no direct conflict with that, other than the name, which is why we are going to change the name. The defective premises legislation is more to do with constructing buildings properly. It all came up via the issues at Victoria Square. We will change the name of the legislation. We are quite keen to talk to the councils about it, because it is coming across that they do not know what clause 11 is about, whereas they have power under article 66 of the Pollution Control and
Local Government (Northern Ireland) Order 1978. We are quite keen to know whether they have used that power since 1978.

Ms Murphy: From the engagement that you have had with local councils, and the engagement that you will, no doubt, have next week with NILGA, it strikes me that there is confusion around the powers that councils already have, and the additional powers that the legislation will provide them with. We will have to see how the engagement with NILGA goes, but ironing out those issues would help us to scrutinise the Bill.

Mr Webb: Certainly. The Committee previously requested a copy of the table so that it could see the comparison of where powers already exist and where they are replicated. That table should be with the Committee shortly. On this particular issue, the article 65 power under the 1978 Order is there, and, as Mark said, the question will be about whether councils are actively using it. We will discuss that next week.

The Chairperson (Mr Butler): Before I bring Declan in, so that I can stop asking you after every clause, how close are we to getting that table?

Mr Allison: I think that it was with the Minister yesterday, so the Committee should get it within the next day or two.

The Chairperson (Mr Butler): I will see him on Monday.

Mr McAleer: You can correct me if I am wrong, but the legislation focuses more on the external appearance of buildings than on the internal. Is that correct?

Mr Allison: Yes.

Mr McAleer: Clause 11(2) states:

The Bill focuses on only external issues. What if there were an internal issue, such as structural soundness? Will there be any assessment of that? It would be "prejudicial to health" if the building were in danger of collapse, no matter what it looks like on the outside.

Mr Webb: The previous clauses that cover maintenance notices and dilapidation notices are more concerned with a building's external appearance, which will impact on local amenity. However, defective premises notices can address internal issues that pose a risk to health and safety.

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

Miss McIlveen: May I ask a really random question that just came into my head? You might have already dealt with it. Bringing in the legislation, in some ways, raises an expectation, as we have talked about. For example, if a property were to be brought to the attention of a council and it failed to act and go through the processes outlined in the Bill, would there ultimately be a liability on that council if something were to happen?

Mr Webb: As with clauses that we have previously looked at, those are discretionary powers that the council may use.

Mr Allison: When it comes to defective or dangerous buildings, it is a different story. A council has to act if something is a danger to the public. It is about that line between lower-level stuff and —.

Miss McIlveen: My question is probably in advance of the conversations that you might have with councils. Such information on such buildings may arrive on desks at a council, and it might say, "Well, we don't have enough money to act". For all sorts of reasons, councils might not take that particularly seriously. Will the fact that we will have legislation in some way create an onus on councils to act and mean that, if they do not, they could be liable in some way?

Mr Webb: Clause 11(3) states:

To avoid confusion with the Defective Premises Act, we are going to re-term that as an urgent abatement notice. Again, in that sense, it is a discretionary power: a council "may" act. As we mentioned, that, of course, is an existing power. If we are talking purely about that clause, article 65 is already in place, so it would not be a new power as such. It would just be repealed, replicated and modernised.

Miss McIlveen: There may be other clauses that that applies to. Would it be useful to have a conversation with your legal people on that point?

Mr Webb: We will indeed. Absolutely.

Miss McIlveen: I appreciate that that was a random question.

The Chairperson (Mr Butler): There is no such thing; they are all good. Members, are we content with clause 11 for now?

The Chairperson (Mr Butler): Simon and Mark, I ask you to give a brief overview of clauses 12 to 15, which are about liabilities for costs etc.

Mr Allison: Clause 12 relates to costs of councils. Councils currently have limited cost-recovery powers. Clauses 12 and 13 seek to enhance them. Clause 12 provides that, where a district council has issued a maintenance notice, a dilapidation notice, a dangerous structures notice or a defective premises notice, or where a council has had to take emergency action to remove danger, it may recover the costs that it reasonably incurs as a civil debt from the relevant person, where the council has taken the action itself. The clause outlines various other scenarios. I will not read them out verbatim, but I am happy to take any questions on them, should members have any.

Clause 13 is another enhanced cost-recovery power that will be made available to councils. It provides that, until costs are recovered, they will be treated as a charge on the property, enforceable as if it were a mortgage and placed on the Statutory Charges Register under the Land Registration Act (Northern Ireland) 1970.

Under clause 13(3), councils can utilise powers contained in the Conveyancing Act 1881 to apply to the court for a possession order, in much the same way as a financial institution can when a mortgage is in default. To some extent, those powers will be self-regulating, as the courts are unlikely to grant a possession order in respect of a relatively small debt. The clause also provides that the council can register a dilapidation notice in the Statutory Charges Register. The purpose would be not to recover costs but to allow a property to be sold with information, which would bind the purchaser to the terms of the original notice. We previously discussed the case where someone inherits a property but does not have the resources to carry out the necessary works, but where the property still has significant value to a new owner, who would then be bound by the notice issued. In certain circumstances, that may be a better solution than the council's having to carry out the works itself and seek to recover its costs.

Clause 14 is entitled "Costs of interested person". It provides that, where costs have been demanded under clause 12, a person who receives the rent for the land merely as an agent or trustee for another person will not be pursued for costs, as it is unlikely that that agent could be deemed to be responsible for causing the relevant nuisance. The council would, however, be able to recover costs from the person on whose behalf the agent receives the rent. That would give all councils the same power that is currently available to Belfast City Council under the Belfast Improvement Act 1845, whereby Belfast can recoup the unpaid costs from the rent of a subsequent tenant in cases where the owner cannot be found.

Clause 15 is on obstruction. It provides that a court order may be made where an occupier prevents an owner from carrying out works to comply with a notice. The clause makes it an offence to obstruct an authorised officer in the execution of his duties. That provision is similar to what is in section 98 of the Local Government Act 1972. Given the potential costs involved in such council activity under the Bill, a level-4 fine of £2,500 on summary conviction is regarded as being more appropriate and consistent with other relevant penalties in the Bill.

The Chairperson (Mr Butler): Thank you. We will take this one clause at a time. Around half of respondents were supportive of clauses 12 to 15, agreeing that they are reasonable and that costs should be recovered.

Clause 12 is entitled "Costs of district council". It has come back to us that councils require clarity on what constitutes reasonable costs in clause 12(1) in order to avoid disputes and ensure effective cost recovery. Councils view clause 12(4) as being unjust, particularly where councils act to protect public safety, such as by fencing off dangerous sites. They argue that costs should always be recoverable in such cases. Approximately 93% of respondents to the informal survey agreed that councils should be able to recover all costs from property owners so that taxpayers do not have to pay for the neglect, and over 50% do not agree that owners should always have the right to appeal afterwards.

Youth Assembly Members had differing perspectives. Some took a firm stance that ownership comes with responsibility, whereas others felt that circumstances should be considered on a case-by-case basis.

On the rights engaged — A1P1 — the Committee may wish to consider whether the control on the use of property is proportionate and strikes a fair balance between the general interests of the community and the private interests of interested persons. Cost recovery is of significant concern if the Bill is to have any teeth at all. Will you comment on the concerns that you have heard in that regard? I am happy to go over any of them, if you so wish.

Mr Webb: Thank you, Chair. The first point that you mentioned was on what constitutes reasonable costs in clause 12(1). That term is used in other areas of legislation that local government implements, and the Department is of the view that there will be a degree of common sense when it comes to what is considered to be reasonable in those scenarios. If a case were to go to court, it would ultimately be for the court to decide what was reasonable in the circumstances.

Clause 12(4) concerns the issue of fencing off dangerous sites. Those costs are recoverable under the Bill, but only until the danger to the public has been removed. In that sense, we will prevent gold-plating and enable cost recovery only up to the point at which it is necessary.

An issue was raised about the right of appeal, but that takes us out of the councils' commentary specifically. I think that your other comments related to the Youth Assembly and the informal survey. However, I am happy to address those if you want, Chair.

The Chairperson (Mr Butler): Yes, if you do not mind, please tease those out.

Mr Webb: Absolutely. As you will be aware from our discussion on the previous clause, there is a human rights requirement to allow a right of appeal for those on whom a notice has been served. The Department very much agrees with the Youth Assembly's comments that ownership brings with it responsibility. The thrust of the Bill is that costs should ultimately be borne by those with a financial interest in the property.

The Chairperson (Mr Butler): The push and pull of that is the difference between an investor or speculator — someone who is in it for profit — and someone who may have inherited a dilapidated building.

Mr Webb: Yes.

The Chairperson (Mr Butler): I think that people are coming at it from that compassionate perspective, where somebody may genuinely have inherited a bit of an albatross, as opposed to somebody who buys for landbanking or property-banking, which, unfortunately, we have seen before. Is there anything that can be done in that space, or is that up to courts to decide? There is a reasonableness test and a human rights test.

Mr Webb: With an inherited property, a council might well decide, as Mark noted, to take the option to put a notice on as a charge to the property and require works to be carried out by a future owner after a sale. Do you have any other commentary on that, Mark?

Mr Allison: No.

The Chairperson (Mr Butler): We are talking about making property safe and reasonable. At the end of the day, that is what we are trying to achieve.

Mr Webb: Absolutely.

The Chairperson (Mr Butler): Members, is there anything that you want to raise about clause 12? No. Thank you, members.

On clause 13, which is entitled "Charge on land", and clause 14, which is entitled "Costs of interested person", the following issues were raised. It was said that central government should make a financial resource available to support councils to take actions that do not put councils under financial stress. There is also the issue that cost recovery to councils may be realised only on the sale of a property or premises, which could result in a long-term delay to a council's receipt of any moneys. You touched on that, Simon.

Youth Assembly Members said that it might be reasonable to grant exemptions or flexibility in the enforcement process. They recognised that not all cases of dilapidation are straightforward, and that environmental or practical considerations may justify an alternative approach. On the rights engaged under A1P1, the Committee may wish to consider whether the controls on the use of a property are proportionate and strike a fair balance between the general interests of the community and the private interests of the interested persons.

I have one question to get us started. We have heard of a proposal for a central pot of money that councils could borrow from until the cost recovery is achieved. Has that been considered?

Mr Webb: The Department has not included any sort of discrete funding mechanism in the Bill. The Department already has powers to provide financial support to councils elsewhere. The thrust of the Bill is, ultimately, that the costs should land with the property owner. Cost-recovery mechanisms are now included for councils to help them to enact powers. They already have many of those, but they are being consolidated in the Bill. Obviously, each case should be looked at on a case-by-case basis, and a council can make a decision on the probability of being able to recover its costs in each individual case. The powers that the Department is including allow the councils to go much further than they would have previously. There will also be, as I have highlighted in previous sessions, the option to sell materials from a site to recoup costs. In addition, fees regulations will be made, which will enable councils to charge for certain works in advance, including surveys, under certain provisions in the Bill. Ultimately, we have the charge on land and the power of sale through the Conveyancing Act 1881 as the very last resort for recouping costs.

The Chairperson (Mr Butler): Thank you very much. Does anybody else have any questions about clause 14? No. Thank you, members.

Clause 15 is entitled "Obstruction by occupier etc.". We have heard that councils proposed that they be given powers to vest land where works in default have been carried out, allowing reuse, sale or development to recoup the costs. Approximately 93% of respondents to the informal survey agreed that councils should recover costs from property owners so that taxpayers do not have to pay for the neglect. Will you comment on the request from councils that they be given powers to vest land?

Mr Webb: Absolutely. District councils, of course, already have vesting powers in a number of other pieces of legislation. It is not clear to the Department how vesting land would be useful in that scenario, but we highlight the fact that, as I mentioned previously, the Bill allows for the power of sale through the Conveyancing Act, which allows costs to be recouped. Therefore, it is not proposed that any amendments be included to allow vesting.

The Chairperson (Mr Butler): To be fair, as you said, you have a meeting with NILGA scheduled for 24 February. I imagine that you will be going over a lot of these points again.

Mr Webb: Indeed.

The Chairperson (Mr Butler): We have not agreed a way in which for us to recover that information. I imagine that you guys will be with us again after 24 February.

Mr Webb: Oh, yes.

The Chairperson (Mr Butler): We are not even halfway through our deliberations with you yet.

Mr Webb: Indeed.

The Chairperson (Mr Butler): We reserve the right to grill you at future meetings.

Members, are there any other questions on clause 15? No. OK.

Members, given that the time is 1.00 pm, I suggest that we draw the line at clause 15. We are now at our quorum, and I do not want to lose any more members.

Do you want to highlight anything that is a new provision in clauses 12 to 15?

Mr Allison: Clause 12 is an extension of existing costs under the old legislation. The charge on land is mainly new. Clause 14 is a re-enactment of some of the old stuff on being able to go after the rent of a new tenant. Clause 15 is a straightforward obstruction clause.

The Chairperson (Mr Butler): Is it in existence and available?

Mr Allison: Yes.

The Chairperson (Mr Butler): OK. Thank you so much, gentlemen. We will see you next week.