Official Report: Minutes of Evidence

The Chairperson (Mr Butler): The DAERA officials are back with us to address some of the queries that were discussed in the closed session and to provide a brief from the previous open session with the Northern Ireland Local Government Association (NILGA) and Building Control Northern Ireland (BCNI).

Before I invite you to make your comments, gentlemen, I want to make you aware of a couple of things that the Committee discussed in closed session that I will put to you. They are in regard to whether the Department would be open to potentially adding a review clause to the legislation. Furthermore, the financial effects were brought up in the previous session with NILGA and Building Control in respect of the explanatory and financial memorandum (EFM). Would you be open to doing something on that? If not, the Committee, through the Bill officials, will pursue those two pieces. Do you want to reflect your thoughts on that and give us an update? Feel free to reflect on anything that you heard in the session with NILGA.

We are going to embark on another piece of work where Bill officials will meet Building Control officials regarding some of the things that we heard to better understand that from the Committee's perspective.

Mr Simon Webb (Department of Agriculture, Environment and Rural Affairs): Thank you, Chair. As you alluded, we were in the Public Gallery for the earlier session with NILGA. We can confirm that we met on 9 April. It was a constructive meeting, and, technically, it is the third meeting that we have had with NILGA representatives since the end of February. We have committed to working with local government in the coming months on the production of the draft statutory guidance to accompany the Bill. That guidance will come into force around the same time as the Bill becomes operational.

We picked up on a few of the points that you referenced, Chair, about the article 72 point, which we propose, by way of a departmental amendment, to address. We have essentially addressed most of the issues in writing with local government. It may just be that, with the passage of time, since last week's meeting, they have not had an opportunity to pick up on those yet. They are with Building Control. We considered the Irish and Scottish legislation as referenced at this morning's meeting. We have reviewed that and provided comments back to NILGA.

We will be happy to look at the couple of suggested points that you brought up on the issue of a review clause. It is potentially something that the Department would consider. However, it is not necessarily the case that it needs to be formalised. It is very much the case that the Department can receive feedback from councils on how, they find, the Act is being implemented. Any issues that they encounter can always be relayed to the Department on an ongoing basis.

With regard to the financial effects, we are happy to consider potential changes to the explanatory and financial memorandum. Obviously, it will depend on what the wording would need to be to address those points. The Department's position has very much been that the Bill contains lots of new cost recovery provisions or a strengthening and modernisation of those charges on land. There are fees for certain elements of the work, and there is the issue of fixed penalties, which we have touched on. Therefore, a lot of stuff could potentially be picked up on in the EFM.

I also note the intention for Bill officials to meet Building Control. We have some outstanding advice to consider from the Office of the Legislative Counsel (OLC). Once we have had an opportunity to review that, we will provide councils with a further update.

The Chairperson (Mr Butler): I am not sure that we have had sight of the letter that you shared more recently with NILGA. I do not think that we have that. Could we get a copy of the letter with the updates?

Mr Mark Allison (Department of Agriculture, Environment and Rural Affairs): Yes. A departmental Assembly liaison officer (DALO) letter was sent yesterday, as far as I know.

The Chairperson (Mr Butler): No problem. We can set that matter aside.

Bill officials rightly picked up on the fact that the Committee can bring the Department in, but, from my perspective — I do not know where members are on it — it would be much better if the review clause were codified, and then it takes the risk away from it being something that may be done as opposed to something that must be done. I like the fact that it is something that is there and is reflected. It is like a ready reckoner and a reminder, and it helps to drive a bit of performance in that space if we get the wording of it right.

The Committee Clerk: That letter is on its way to us.

The Chairperson (Mr Butler): Good.

Members, any questions, queries or requests for clarification are in your hands.

What we heard from NILGA and Building Control, in particular around their interpretation of the legislation and the risk, was slightly different from previous sessions. More concern was raised today. Do you share those concerns, or do you think that more information could be provided that would give clarity and confidence?

Mr Webb: We do not share the concerns that were raised. One of the issues that was raised was the article 72 point, which we have addressed. Just to be clear, it is not that we are repealing article 72, but it is around replicating similar wording in the Bill. We would be very happy to do that and to expand that definition of who can be asked to supply information.

One of the things that came up was the issue around definitions and assessment levels. Again, we have committed to working with councils on that. Though they did not mention it this morning, they agreed at our meeting to produce a matrix that will provide a standardised assessment template. The Department's position is that that will form part of the statutory guidance. We have agreed on that, though, as NILGA noted, the minutes of last week's meeting are yet to be formally signed off. That is, however, in them as an action.

There was an issue around the emergency action provision in the Bill, which Building Control highlighted this morning. That seems to be a misunderstanding on the part of Building Control. We wrote to it last week to clarify that, but there has been no response. As far as we are concerned, that issue has been clarified and addressed. The appeal in the case of emergency action is not against the notice. The works do not stop. The emergency action works commence, and the council undertakes those works, but they do not stop as a result of the appeal. That differs from other clauses of the Bill, where a notice is issued and the appeal is against the notice in the Bill. That potentially stops the works until there has been a determination. It is very much our case that the works do not stop.

There is the specific issue around the councils and picking up the costs. The provisions that we included under the emergency action clause are the same as those that are used in England. They are virtually identical and are used without any issues.

Building Control raised quite a specific point on fencing, but the word that was referenced relates to emergency action only. It is not fencing in general. It is a limitation when it comes to removing the immediate danger. Therefore, there is not the ability to continue recouping the costs of maintaining the fencing, but you could do that simply by way of issuing a fresh notice. Therefore, that issue has, essentially, been taken care of.

Building Control referenced the flow chart in the guidance, although, I know, we are not necessarily here to speak about the guidance. That flow chart is from the best practice guidance on section 215 of the Town and Country Planning Act 1990. That is where that has been lifted from, but we are happy —.

The Chairperson (Mr Butler): The flow chart already exists, is that right? It has been lifted from something.

Mr Webb: Yes, it is a lift. Exactly. The guidance for Northern Ireland is very much based on the guidance on section 215 that is in place in England. That is a straight lift, but we are happy to amend it.

The Chairperson (Mr Butler): One thing that occurs to me, from reading something, is that there has been no engagement with councils in England to test the efficacy of the flow chart or whether there are issues with it. Is it fair to say that? It has been lifted from there, but has there been any assessment of its efficacy in England?

Mr Webb: We have not specifically spoken directly with colleagues in local authorities in England. We have asked local authority colleagues here to reach out if they had specific contacts and to feed back any information to us. We have not received anything. The guidance relates to the Town and Country Planning Act 1990. It has been in place for 36 years. That is the best practice guidance, so I assume that it is pretty workable at this stage and that it has bedded in.

I am checking my notes to see whether any other key issues were raised. No. Chair, you suggested at the end of the meeting that local government and NILGA might provide a paper that takes a clause-by-clause approach. That would be very helpful. We have asked for that. If we could get it, it would be very helpful, and we could then share that with the draftsmen.

The Chairperson (Mr Butler): No problem. I look forward to getting that, as do members, I am sure, because it is becoming time-critical for each of us. It would be really good to get that.

I have one other question. Have you had any update from the historic environment division (HED) on the proposed amendment to clause 4 that it was seeking on interpretation of the term "condition"?

Mr Allison: Yes, that should be in the most recent letter. We sent amendments to the draftsmen yesterday afternoon, and that is one of them, which adds a bit about statutory heritage controls.

The Chairperson (Mr Butler): OK. This is the last thing from me. I picked up, rightly or wrongly, that the discussion with NILGA and Building Control started to slide a wee bit into the regeneration piece. The Bill is not about that. Those are the vagaries of it. People might perceive it to have that ambition, but it does not exist in this; it is not about that. We could maybe help you guys to present it a wee bit better in that space. I understand why people would jump to that conclusion. Unfortunately, when the Minister did a video in my constituency, he said that — I do not think that he meant to do this — it was going to change the face of a local town in my area, and I am thinking, "I'm not sure it's going to do that". That is why people cannot be blamed for thinking that it is going to transform our town centres. It has good purpose and intent, but we need to be very clear about what it will deliver.

Mr Webb: Yes, I very much agree. The expectation is that, if the legislation is, ultimately, adequately enforced, it will have spin-off benefits for regeneration, but its key purpose is to tackle the issue of local amenity and local environment quality.

The Chairperson (Mr Butler): Yes. On that clarity piece, the councils will retain the ability to determine whether or not something is a reduction in or loss of amenity.

Mr Webb: Absolutely, yes.

The Chairperson (Mr Butler): That power will still reside with them.

Mr Webb: Yes.

The Chairperson (Mr Butler): That is why the review clause is so important. It will extract the maximum amount of value from the legislation.

Members, I am now in your hands: is there anything that you want to ask? Are we OK? We are good. Well done. OK, members. Thank you so much.