Mr Simon Webb (Department of Agriculture, Environment and Rural Affairs): Thank you, Deputy Chair. As you mentioned, we met NILGA and Building Control NI representatives and environmental health officers on 24 February and 2 March to discuss local government issues relating to the Dilapidation Bill. The purpose of the meetings was to listen to views, enabling us to report to the Committee to aid its further scrutiny of the Bill and, ultimately, the completion of its report. As expected, the vast majority of the issues discussed were ones that the Committee had raised with us during the ongoing deliberation sessions.
I will talk about each issue in some detail. The first matter that arose was confusion about timing, given local government's understanding of the Committee's call for evidence, which was issued on Citizen Space last year. Local government perceived the call for evidence to be the start of a typical departmental public consultation on a policy or on legislation at a much earlier stage of the legislative process. As a result, expectations were raised about the scale and extent of the changes that could be made to the legislation at this time. We advised that significant changes outside the agreed policy position would require a significant step back in the process and, of course, Executive approval, which would probably prevent the Bill from completing its passage in the remainder of the mandate.
The Assistant Committee Clerk, who attended that meeting as an observer, helpfully set out the Committee's process whereby everything that NILGA and the Society of Local Authority Chief Executives (SOLACE) had put in their responses to the call for evidence had been analysed and distilled into the Chairman's brief that was used to put questions to Mark and me at previous Committee deliberation sessions. We also advised that the Department had separately issued the draft guidance for comment in September 2025 to SOLACE and in early October to NILGA but had not received a response until the start of the Christmas leave period.
The second issue is about resourcing. That is the main issue that underpins most of the other issues that local government raised at our discussions. Whilst they did not disagree with the aspirations of the Bill, they stated that, as it stands, the Bill will be a burden to councils, and they feel that it will not be deliverable as a result. We explained the current position on resourcing and that no discrete funding will be provided by way of the Bill. The Bill, of course, includes cost-recovery provisions, such as a charge on land or the ability, through the power of sale, to sell a property and other means of raising some revenue, such as charging fees, a fixed penalty notice for low-level dilapidation and the sale of materials from a site. Representatives confirmed that they will raise the issue again with NILGA and SOLACE.
The third issue is about terminology. The issue is the use of phrases that the Committee will be familiar with such as "amenity", "detrimental" and "seriously detrimental". Councils would prefer those terms to be tightly defined and included in the Bill itself. However, those are subjective terms, and the statutory guidance makes it clear that each case will be different, depending on where the property is located, the level of detriment etc. The terms are not defined in Britain, and to do so in the Bill would not be feasible, as there needs to be a level of flexibility. Councils will need to take each case on its own merits. Councils would prefer to tie down the definitions, terminology and, indeed, standards in the Bill, as they believe that that would give them more cover and reduce the likelihood of a legal challenge. However, it was highlighted that the statutory guidance will, indeed, be statutory and relied upon in court, along with the legislation itself, in any cases.
The next issue is about the potential production of a matrix. A matrix is currently used by Belfast City Council in enforcement cases. Officials agreed that the Department could consider an adapted version from local government for inclusion in the statutory guidance, which, of course, the Bill references. The matrix could help alleviate local government concerns over the terminology and the potential volume of low-level dilapidation cases, as well as aid consistency. Any matrix would need to be agreed by all 11 councils, and, as such, NILGA would need to coordinate its production before presenting a draft to the Department.
The next issue is about maintenance notices. That is the main new discretionary power available to councils in the Bill. It provides the councils with powers to tackle low-level dilapidation by way of maintenance notices. Councils requested those powers to bring them into line with local government in Britain. Anecdotal evidence suggests that the powers work well in Britain. However, representatives see them as burdensome and predict that they will lead to councils being involved as a referee in very minor civil disputes between neighbours, and they cited the High Hedges Act (Northern Ireland) 2011 as an example of that. However, maintenance notices are discretionary and are not intended to tackle very minor issues such as a neighbour's grass not having been cut for a couple of weeks. We shall strengthen the statutory guidance to make that clear.
Representatives raised the possibility of charging complainants an administrative fee for issuing a maintenance notice as a way of reducing the volume of potentially spurious complaints. However, that is not the case in Britain and would represent a shift in the current policy, requiring the dilapidation policy to be brought back to the Executive. In that scenario, it is highly unlikely, as I mentioned, that the Bill could complete its Assembly passage.
Representatives want provision to complain to a court, as is the case for other types of notices in the Bill, with the court being able to order a person to comply with the notice. However, as maintenance notices deal with low-level dilapidation, it is not felt that obtaining court orders would be proportionate, and there are no court orders for the equivalent section 215 powers in Britain.
The next issue relates to unknown owners. The Bill, of course, is trying to tackle that issue by giving councils stronger and clearer cost-recovery powers. As I mentioned, those will be things such as charges on land and the power of sale through the Conveyancing Act 1881. We are seeking a definitive legal view on specific clauses as currently drafted on whether works can be carried out in default, even if the owner is unknown but a notice has been breached. That was the intention of the instruction to counsel, and Belfast City Council currently has that power or an equivalent power under section 76 of the Belfast Corporation Act 1911. Representatives pointed out that they would be last in the queue when it comes to recovering costs for works in default by way of a charge on a property, however it is not within the Department's powers to alter the priority of charges on properties, with pre-existing charges taking precedence. Councils may, of course, choose to take that into account when determining whether they should carry out works in default on a property.
Moving on to the issue of cost recovery, that is not just confined to circumstances where the owner is unknown, and the stronger powers in relation to charges on land and the power of sale were again highlighted. Representatives highlighted the fact that, in some cases, the charges on land and, ultimately, the selling of the property may not be sufficient to recoup their full costs, however they were not in a position to identify alternative approaches to recouping costs that would fall within the Department's remit. New vesting powers were suggested in that regard, but it was pointed out that DAERA does not have power in that area and that councils already have access to vesting powers in other legislation with the Department for Communities (DFC). Representatives wanted more clarity on what would be deemed "reasonable costs". We previously advised the Committee that councils would already be determining reasonable costs when applying other legislation. Ultimately, what is deemed reasonable will, of course, be tested in the courts, however that will be included in the queries that we will be addressing with our legal advisers, and it can be drawn out in the statutory guidance.
The issue of the fixed penalty was raised, and it was felt that the amount, currently proposed at £500, is insufficient. It was pointed out that the fixed penalty is only to be used in low-level dilapidation cases and is a potential income source for councils. The penalty is offered as an opportunity to discharge liability for prosecution, but the key point is that remedial work still needs to be completed regardless. As such, retaining the fixed penalty provision would also reduce the administrative burden on the courts. We confirmed that the amount could be raised to £750 or £1,000 if the Committee felt that that was appropriate.
I turn to the final few issues. Heritage sites were discussed and the issues around balancing public safety and preserving built heritage. We advised that that was the intention behind clause 17 whereby, when issuing notices, councils must the relevant council officers who deal with heritage buildings or, indeed, DFC in the case of historic monuments. Representatives alluded to current high-profile cases that members will be familiar with such as the Antrim Arms Hotel in Ballycastle.
On the matter of emergency action, a concern was highlighted about the use of those powers under clause 10. Representatives felt that the provision whereby costs would not be recoverable if a court were to find that the action was not justified would be a major obstacle in using the power at all.
On demarcation of roles, representatives at the meeting wanted to include further references in the Bill to the role of other Departments and bodies such as the Department for Infrastructure, the PSNI and the Housing Executive, particularly in relation to the demarcation of each organisation's roles. However, we cannot mandate other bodies in DAERA legislation. As we already mention the PSNI in the statutory guidance, we could do likewise for the other bodies as appropriate.
Finally, some specific legal queries will be sent to our legal advisers to provide legal clarity so that we can advise the Committee and the NILGA representatives at the meeting in due course. That is the full summary. Thank you.