Official Report: Minutes of Evidence

The Deputy Chairperson (Mr McAleer): I welcome DAERA officials Mr Simon Webb and Mr Mark Allison to the Committee. We have just had an informal session on our scrutiny of the Bill, and we are now back in public session. We will ask the Bill officials to address the queries that we discussed in closed session. Janice Thompson and Glenda Doherty will summarise the discussions from the closed session. We can bring in Mark and Simon to answer any questions that emanate from that.

Glenda, do you want to kick off?

The Senior Assistant Assembly Clerk: Thank you, Chair. We started at clause 7, which is "Dangerous structure notice". We had no comments on that.

Clause 8 is "Appeal against dangerous structure notice". The Bill Clerk advised that there are procedures in the guidance that outline what councils need to do before they issue a notice. Those will be the basis for the justification. There was a query about only having to show that a building is not dangerous and then justifying that when it comes to appeal.

There were no comments on clause 9, which is "Breach of dangerous structure notice".

On clause 10, which is "Emergency action", there was a query about the councils' experience that they will not be able to get a summons served by the court if they cannot prove that they served the notice on the person. Some clarity may be required on that.

On clause 11, there was a question about a council's liability if it fails to act and whether legal advice was sought on that.

On clause 12, members discussed the issue of reasonable cost, which they may raise with the officials.

There were no comments on clauses 13, 14 and 15.

On clause 16, the Committee will need clarification on a legal test in relation to article 72 of the Pollution Control and Local Government (Northern Ireland) Order 1978.

On clause 17, the Committee has an issue regarding the long wait for planning permission and how that links to the situation where a building gets into a bad state.

On clause 18, there was a query about whether the provision on gaining entry applies to lay magistrates. We are waiting for clarification of that from the officials.

Clause 19 is "Fixed penalty". There were to be progress meetings on that with the Northern Ireland Local Government Association (NILGA), so members may wish to seek an update on the work that has gone on behind the scenes. The Bill Clerk advised that fixed penalty notices (FPNs) can be staggered or increased, if the Committee is minded to do that.

Clause 20 is "Guidance". Members may wish to seek an update on where we are with that and whether it has progressed or changed.

There were no comments on clause 21.

On clause 22, there was a point about appeals. The Bill Clerk advised that, in respect of all notices, all appeals will go to the Magistrates' Court, which can be done online through a simple form. However, some clarification or assurances may be needed on how easy to follow the instructions for processing an appeal are for a layperson and the public.

There were no comments on clauses 23 to 31. Members raised a few queries about the appeal process for a fixed penalty notice.

There were no comments on schedule 1, but the fact that the Committee can change or stagger FPNs was highlighted.

There were no comments on schedule 2, which is "Repeals".

I think that that was everything.

The Committee Clerk: Chair, will we start back at clause 7 and work through the questions?

The Deputy Chairperson (Mr McAleer): Yes.

The Committee Clerk: I will remind you when there is to be a question, and we will then take them one by one, if that is OK with the officials.

The Deputy Chairperson (Mr McAleer): Yes.

The Committee Clerk: There was nothing specifically to ask about clause 7.

Clause 8 is "Appeal against dangerous structure notice". Chair, I think that the Committee was content that there is no additional work for the councils when it comes to appeals against dangerous structure notices, as they already have to do the work.

There were no questions about clause 9. Clause 10 — apologies. On clause 9, with regard to dangerous structures, Chair, I think that some members still have concerns about councils serving a notice on a structure that is dangerous and needs emergency action. Does any member want to go back over that? It relates to clause 10 too. Are there still concerns about serving a notice on a dangerous structure or building?

The Senior Assistant Assembly Clerk: I think that that was more to do with the courts. The councils explained that the courts will not issue a summons if the councils cannot prove that they have issued the notice to the person. You can attach a notice to a building if you cannot find the owner, so there was that query.

The Committee Clerk: Do any members want to raise anything there? Could you ask them, please? I have written a note there about serving the notice on a building that is dangerous.

The Deputy Chairperson (Mr McAleer): Oh, yes. A query came up about serving a notice if it is not safe for council staff to attach a notice, and there is a possibility that the courts will not accept a photo of a notice that is attached to a property. What are the implications for serving a notice if the courts will not accept that a notice has been posted on a building?

Mr Simon Webb (Department of Agriculture, Environment and Rural Affairs): The position had been that affixing a notice to a property to inform the property owner would be sufficient under the Interpretation Act (Northern Ireland) 1954. We are not aware of anything to the contrary, but we can certainly seek legal advice on that.

Mark, have we already raised with the Office of the Legislative Counsel what counts as serving a notice in another context?

Mr Mark Allison (Department of Agriculture, Environment and Rural Affairs): Yes. It is do with the court summons.

Mr Webb: Yes. We will come back to the Committee on that.

Mr Allison: In relation to emergency action, no initial notice is served. The council will go in and do the work. It is not like affixing a dangerous structure notice. When it comes to emergency action, the council will go in and do the work. There is no emergency action notice per se. Under clause 10(4), if it is "reasonably practicable" for the council to give notice of its intention to do what it is going to do, if it can find someone. that is the —. There is then the notice under clause 10(6), but that is served after the council has started the work. It is a notice in the other notices, if you know what I mean. There is no initial notice served.

The Deputy Chairperson (Mr McAleer): Yes.

What is the next one, then?

The Committee Clerk: Clause 11, Chair. The officials are clarifying an issue with the legal team.

The Deputy Chairperson (Mr McAleer): What are they clarifying?

The Committee Clerk: Clause 11.

The Senior Assistant Assembly Clerk: It is to clarify whether there is any liability on the council if it fails to act. They were to seek legal advice on that.

The Deputy Chairperson (Mr McAleer): Aye, so the officials are clarifying that with the legal team.

The Committee Clerk: Yes.

Mr Webb: We await the legal advice on that. We have raised that query.

The Committee Clerk: Clause 12 is "Costs of district council". Officials are to address the wording about reasonable costs with the legal team.

Mr Webb: Yes. That is another query on which we are waiting for a response from the legal team. Fundamentally, the issue of reasonable costs will come down to whether the costs are purely those involved in doing the remediation work on the structure — actual structural work — or whether it is expanded to include associated costs, such as administrative costs. We are getting clarity on that, and we will clarify that. The intention is that the statutory guidance will provide more information on that.

The Deputy Chairperson (Mr McAleer): The next query is about clause 16.

The Committee Clerk: It is about whether a legal test exists to determine offences and penalties where a property is owned by multiple trustees.

The Deputy Chairperson (Mr McAleer): Did you pick that up OK, Simon? It is about whether there is any legal test, in order to advise the Committee on clause 23, where a property is owned by multiple trustees, particularly if the trustees cannot be located.

Mr Webb: That query, which is about the number of trustees or directors etc and minimum numbers, is also with the legal team. At the moment, we are not aware of a minimum requirement in terms of the number. I know that there was some concern about a loophole, but we are not aware of anything in that regard. We have looked at it in an official capacity, and we have raised it with our legal advisers.

The Committee Clerk: Officials were also to seek a definitive legal view on whether works can be carried out in default, even if the owner is unknown.

Mr Webb: Yes, that is with the legal team. That is all part of that query.

The Deputy Chairperson (Mr McAleer): Gareth, do you want to repeat your question from earlier about planning?

The Committee Clerk: You had some concerns about clause 17, which is "Consultation with planning department".

Mr Wilson: It is about instances where the Planning Service or the heritage element could be involved so that you would not have circumstances of delay, after which the council would have to exercise its more emergency-style functions. There could be potential for delay if the building is in a conservation zone. I have had experience of that in my constituency, where there are buildings of dubious condition in conservation areas, yet those buildings would be impacted on by any form of works in a conservation zone.

Dealing with the historic environment division can be protracted, as I found out from 10 years in the Planning Service. This is outside the scope of the intentions of the Bill, but you would imagine that all consultees and government agencies would work to the betterment of the high street, not against it, and would not cause undue delay. The Bill should be handled in such a way as to avoid circumstances where a Department would be even mildly seen to be obstructing progress in the ultimate betterment of the high street.

Mr Allison: That certainly came up in our meetings with NILGA and building control people. It is about striking a balance when it comes to the heritage side of things. It could be a dangerous building. At the end of the day, public safety would have to be measured against the heritage element.

Mr Wilson: It should override it, surely.

Mr Allison: You would like to think that it would if, say, the public were in danger because things were falling off the top of a building. It certainly came up during our discussions with NILGA and the building control people.

The Committee Clerk: The next issue is clause 18, which is "Power of entry". There was consideration of whether consent can be sought from a lay magistrate and whether that had been considered. Officials had agreed to look into that and report.

Mr Allison: We looked at the Planning Act (Northern Ireland) 2011. If you want to put that provision into clause 18, we will not have a problem with it. Obviously, the Bill was drafted before — was the Bill drafted before the Planning Act? No, it was not. That did not come up, but we are certainly open to including it.

The Deputy Chairperson (Mr McAleer): OK.

The Committee Clerk: Chair, we can return to clause 18 to see whether the Committee wishes to agree that amendment.

We also had some discussion about fixed penalties under clause 19. Officials had raised with the Committee the balance between being flexible and ensuring consistency between councils, so they were going to work with councils to see the best way in which that could be achieved. The officials' preference was for it to be through statutory guidance. The Committee queried whether NILGA was content with that approach.

Mr Webb: As the Committee will be aware, we had two meetings with NILGA and building control a few weeks ago. We have provided the attendees with a summary of the meetings, which includes the proposed approach to ensuring consistency across councils, relying on things such as the statutory guidance and, potentially, a matrix that would be developed with NILGA and the councils. We have not yet had a response, but I think that most of the attendees at the meetings are on leave, so it may be another couple of weeks before we get anything back. They were keen that there would be a degree of cooperation to get that consistency.

The Deputy Chairperson (Mr McAleer): In the closed session, we agreed to get NILGA back before the Committee for an update.

In relation to clause 20, is there any feedback from the councils on draft guidance?

Mr Webb: Yes. The draft statutory guidance was shared with NILGA and the Society of Local Authority Chief Executives (SOLACE) in the autumn. We received comments consistent with issues that the Committee has considered in recent weeks. It will be very much a case of going back to councils in the coming weeks as we continue to develop the statutory guidance in partnership with them.

The Deputy Chairperson (Mr McAleer): When we get NILGA back before the Committee, we will get an update from it on that.

The Committee Clerk: Chair, Glenda covered the query about appeals. There was, perhaps, a suggestion that the guidance on how to submit an appeal needed to be strengthened.

The Deputy Chairperson (Mr McAleer): Yes. It needs to be made clear and certainly more transparent where an appellant would go to submit an appeal.

Mr Webb: There is certainly no problem in incorporating that in the revised draft of the guidance to provide clarity.

The Committee Clerk: Clause 30, Chair, has not been mentioned, but there was a discussion about whether a publicity campaign is being planned.

The Deputy Chairperson (Mr McAleer): Yes, a publicity campaign. Officials were to meet the Minister in late March. I presume that that has not happened yet but is scheduled.

Mr Allison: Yes, we are meeting the Minister on Wednesday.

The Deputy Chairperson (Mr McAleer): Very good. The Committee will consider the issue of fixed penalty notices again in due course.

That is all the issues that we covered during the closed session. Unless members have any other questions for the officials, I thank you very much.