Official Report: Minutes of Evidence

The Chairperson (Mr Butler): I welcome Simon and Mark from the Department of Agriculture, Environment and Rural Affairs back to the table. We will ask questions arising from our previous discussions, and perhaps you will provide some clarification.

The Committee Clerk: Chair, do you want to move through from start to finish or stop where there is an issue for officials to answer?

The Chairperson (Mr Butler): Take the points individually, if that is OK, and we can then move on from there.

The Committee Clerk: The first thing that was discussed was the proposal for the explanatory and financial memorandum (EFM) and the form of wording that the officials had sent through to us. We noted that the figure of £1,000 was in brackets, and we presumed that that was in case the Committee wished to amend the level.

Mr Simon Webb (Department of Agriculture, Environment and Rural Affairs): Yes.

The Committee Clerk: Do you want to come in on that?

The Chairperson (Mr Butler): Only to say that that obviously refers directly to clause 19 as well. If the EFM were to be changed, that would require an amendment to be made.

Was there any other stakeholder feedback or desire from the Northern Ireland Local Government Association (NILGA) and the Society of Local Authority Chief Executives (SOLACE) in particular with regard to the efficacy of increasing the fixed penalty? It is a substantial increase.

Mr Webb: Yes, Chair, there was an initial view in NILGA that the penalty needed to be higher. The Department had suggested £750 or £1,000. It is fair to say that that was primarily at the stage when the fixed penalty was being seen as a deterrent in its own right as opposed to a mechanism to discharge liability for conviction. In that sense, there is not as much support now to change the amount.

The Chairperson (Mr Butler): We had a further discussion in closed session on the efficacy of it, and we are in agreement. I am not speaking for the Committee at this stage. We will come back to you with our formal position on that.

Are there any other queries that members want to ask officials about the EFM, which, if a decision was made to amend it, would obviously have a knock-on effect on clause 19? You guys are not bringing that forward as a change.

Mr Webb: No, that is correct.

The Chairperson (Mr Butler): OK. Thank you.

The Committee Clerk: On clause 1, there was some discussion about the full matrix. It had been mentioned that it should be put in the guidance document to give strong examples at all levels for councils. John highlighted that it was to be about not just visuals but safety aspects.

Mr Blair: Do you want me to speak to that?

The Committee Clerk: Yes, quickly. Thanks.

Mr Blair: I am keen that we address the fact that residential amenity and visual amenity are different things in many instances. A building that is not occupied, secured or looked after can well lend itself to serious and threatening antisocial behaviour. While the structure might be OK, residential amenity could be seriously impacted, although visual amenity might be less impacted, if I can put it that way. I am keen that any matrix or factors to be considered that could lead to a fixed penalty notice (FPN) or further action should include risks to people beyond the risks relating to structural damage.

Mr Webb: Absolutely. The Bill's intention is that, when it comes to, for example, a maintenance notice, that should go beyond the visual aspect and cover that broader interpretation of "amenity". We will certainly reflect that in the guidance, and we will bear that in mind when we engage with local government on the matrix.

Mr Blair: That is helpful.

The Chairperson (Mr Butler): Are you happy with that John?

Mr Blair: Yes.

The Committee Clerk: There was an acceptance that the guidance will be a living document and that any changes would be brought to the Assembly.

On clause 2, we have the text of the amendment to aid consistency, as per the NILGA suggestions. There was acceptance of that. There is no further comment on that. On clause 4, the Committee noted and was content with the wording of the amendment on including heritage sites. On clause 7, again, the Committee considered the text of the amendment that you sent yesterday. It was generally content with the text of the amendment and the Department's explanation for not taking forward some of NILGA's proposals. The Committee was content with the Department's explanations regarding clause 10. On clause 11, we looked at the text of amendments that we have known about since the introduction of the Bill regarding changing the title of the notice from a "defective premises notice" to an "urgent abatement notice". The Committee ran through those and was content. The Committee was content that the Department's amendments linked back to clause 11.

On clause 16, there was some discussion about the regulations and whether we potentially need another amendment at clause 28, which is titled, "Regulations". Can we confirm that?

The Chairperson (Mr Butler): It does not stipulate that. Subsection (2) refers to the regulations that are mentioned in the Bill. Does it need to reflect that that is now being captured in the regulations? That is where you have taken out definitive description and moved it to regulations. Is that right? Clause 16(2) says:

and then provides a definitive list, which has been removed and replaced by the regulations. We want to make sure that the reference to regulations at clause 28 picks up on the fact that it is speaking to clause 16(2).

The Committee Clerk: We also want to be sure of what the Assembly procedure will be for the regulations mentioned in clause 16.

The Chairperson (Mr Butler): Clause 28(3) says:

Does there need to be a reference to regulations that include provisions under sections 16(2), 17(4) and 19(4)? It is making a change to the Bill. We want to ensure that that is reflected there.

Mr Mark Allison (Department of Agriculture, Environment and Rural Affairs): We imagine that the regulations will be subject to negative resolution. Under subsection (2), changes to the definition of "heritage site" or the amount of the fixed penalty will be draft affirmative; everything else is negative resolution.

The Chairperson (Mr Butler): For clarification, if the Bill goes through without the amendment, clause 16(2) specifies:

That will be removed from the Bill and picked up in a regulation: is that right?

Mr Allison: No.

Mr Webb: No. That is where there is confusion, and there is a table with the detail.

Mr Allison: The regulations mentioned in subsection (2) are for when, on down the line, the Department feels that councils are overstepping in what they are asking for.

The Chairperson (Mr Butler): My list of amendments states:

Leave out subsections (1) and (2) and replace them. Subsection (1) is fine, and we understood that, but subsection (2) will also be left out and replaced. In the Bill, subsection (2) starts with:

It then details what it must relate to. However, that is being removed, and it now states:

It looks like a completely different operation with a different intent. It now mentions making regulations, and where is our comfort if it does that?

Mr Allison: The new clause 16(1) will specify in the notice what is required. The draftsman removed subsection (2) because it is very specific to the nature of the interest in the land; whereas the new subsections (1) and (2) are basically a direct cog of articles 72(1) and 72(2) of the Pollution Control and Local Government (Northern Ireland) Order 1978.

The Chairperson (Mr Butler): Will the regulation be taken from an existing descriptor?

Mr Allison: Yes. It is the 1978 Order.

The Chairperson (Mr Butler): Does that need to be specified so that it is understood? We have a push/pull with NILGA and SOLACE about the existing legislation that applies. Does it need to be specified?

Mr Allison: No. Article 72 covers any information that they requested under the 1978 Order.

Mr Webb: It is not that the Bill refers to article 72 of the 1978 Order; it is replicating the wording for the purposes of the Bill.

Mr Allison: It gives them the broader powers that they wanted.

The Chairperson (Mr Butler): At the start, we looked at a table of what is being replicated. This is not a change; it is a replication of something that already exists, but it will be in the Bill.

Mr Allison: It is a change to the Bill —

The Chairperson (Mr Butler): It is a change to the Bill as drafted.

Mr Allison: — but it is basically a mirror of article 72 of the 1978 Order.

Mr Webb: NILGA's concern was that, if we did not make the amendment, it would be restricted from the powers that it currently has available.

The Chairperson (Mr Butler): This is not making a new regulation. The regulation already exists, and it is referenced back to —.

Mr Webb: Yes.

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

The Committee Clerk: Chair, there was another query about the intention being to broaden the scope.

The Chairperson (Mr Butler): That was picked up, because it already exists and feeds back into the legislation. It is drawn through legislation that already exists, and it is not changing the words.

The Committee Clerk: That is fine.

On clauses 17, 18 and 19, the Committee considered the draft text of the amendments and was content.

On clause 21, the amendment clarifies the serving of the notice under the same provision or subsequent provisions. Can we look at that again, please? I do not understand my own notes.

The Chairperson (Mr Butler): It states:

The Committee Clerk: Sorry, Chair. I understand it now. We were checking that it now clarifies it. That is fine.

On clause 22, the Committee wishes to remind the officials to revise and expand on the guidance. They have already agreed to have a more straightforward process so that, although the guidance is designed for councils, others will also be able to understand it. I presume that that is under way.

Mr Webb: Yes.

The Committee Clerk: There were no comments on clause 23.

On clause 24, the Committee generally accepted the Department's explanations of "interested person". On clause 25, the Committee accepts that the amendment relates to clause 11. There was no further comment on clauses 26 to 31.

Was there any further comment on schedule 1? I have nothing written down.

The Chairperson (Mr Butler): We had a discussion on schedule 1.

The Committee Clerk: Was there any comment?

The Senior Assistant Assembly Clerk: On the fixed penalty amount.

The Committee Clerk: That goes back to the fixed penalty amount.

The Chairperson (Mr Butler): It refers to the fixed penalty piece. We just need to pick up on that as a Committee.

The Committee Clerk: The only comment that sits outside the Bill is the potential for a review and reporting clause. We have a draft clause from the Bill Office. I understand, however, that the Department will now pursue a potential draft clause.

Mr Allison: We sent the instruction to the draftsman yesterday. The draftsman only works two days a week, but we are hopeful that we will get something back on Tuesday or Wednesday.

The Chairperson (Mr Butler): Can you give us even headline detail of what you expect to see in that draft clause, such as when it will take effect, how often there will be a review and whether there is a subsequent clause?

Mr Allison: We were going to mainly mirror section 228 of the Planning Act (Northern Ireland) 2011. In the Planning Act, it is at three years following commencement and then every five years. We feel that, for this Bill, five years following commencement followed by every five years would be more appropriate because of the sort of —.

The Chairperson (Mr Butler): I will give you a wee hint: we would like it to be after three years and then every five years. We would be broadly happy with the five years following the first review, but we like the sound of having three years at the start to drive a bit of ambition and intent. We will look at that when it comes back. That will be at next week's meeting, yes?

Mr Webb: Yes.

The Committee Clerk: Yes.

The Chairperson (Mr Butler): It is really good that you are doing that. I appreciate it. That clarifies that.

Do members have any further questions for the departmental officials? No.

Do you want to make any comments at this stage? Hopefully, we can now see a bit of light at the end of the tunnel.

Mr Webb: No. I am sure that you will be glad to see the back of us. Thank you very much.

The Chairperson (Mr Butler): You can tell from the introductions that we are on first-name terms. [Laughter.]

I cannot even remember your second names. We appreciate the work that you have taken on.

Mr Allison: We will expect an invitation to your Christmas lunch.

The Chairperson (Mr Butler): Absolutely.

Mr Blair: As we will to yours.

The Chairperson (Mr Butler): I appreciate it. Thank you.