Official Report: Minutes of Evidence

The Deputy Chairperson (Mr Stewart): I welcome the following officials from the Department for Infrastructure: Mrs Rosemary Daly, chief planner and director of regional planning, governance and legislation; Scott Symington, deputy director of regional planning, governance and legislation; and Matt McCrisken, principal planning officer, planning legislation. You are very welcome. Thank you for taking the time to join us today; we appreciate it.

Members, before we proceed, do you agree that the session be reported by Hansard?

The Deputy Chairperson (Mr Stewart): Thank you.

I invite you to make your presentation on the Bill, and I will then open the session for members' questions, as normal.

Mrs Rosemary Daly (Department for Infrastructure): Thank you very much, Chair, for the opportunity to brief the Committee on the Department's assessment of the Tree Protection Bill. As you said, Scott Symington and Matt McCrisken, who is our legislation lead, accompany me today.

At the outset, I make it clear that, as the Committee is aware, this is a private Member's Bill introduced by Peter McReynolds MLA — hello, Peter — and we acknowledge Peter's early engagement and thank him for it. Some work was done early this year, which was helpful.

The Department supports the objectives of strengthening protection for important trees and woodlands and recognises the significant contribution that trees make to biodiversity, climate resilience, environmental quality and public amenity. The Department also recognises the considerable public interest in ensuring that the legislative framework for tree protection remains effective and proportionate. We acknowledge the work undertaken by the Bill sponsor in bringing forward these proposals and the public support for stronger tree protection measures that was expressed during the consultation process. The purpose of our engagement with the Committee today is not to question the objectives of protecting trees; rather our role here is to assist the Committee by identifying where the Bill may strengthen the current framework and where practical, operational or policy issues may arise.

Having undertaken a detailed assessment, the Department considers that a number of provisions could improve the existing framework. In particular, we see merit in measures relating to replacement planting, monitoring and enforcement, which would help to ensure that environmental losses are more effectively addressed, and replacement planting more successful, in the longer term. The Department also supports improvements that would increase transparency and strengthen protections for important trees, although we consider that some provisions would benefit from amendment to ensure that they are proportionate, workable and capable of being implemented consistently.

While there is support for a number of the Bill's objectives, the Department has identified concerns relating to three areas in particular. The first relates to clauses 8 and 9 concerning development that affects ancient and long-established woodlands. The Department's concern is not about the objective of protecting the woodland but about the cumulative effect of the proposed statutory restrictions, including the 15-metre buffer and removal of certain permitted development rights. Our initial assessment indicates that a 15-metre buffer alone would impact, at a minimum, around 1,400 homes and other buildings in Northern Ireland. That does not include any additional impact of the wider loss and deterioration provision. The Department considers that those provisions could have significant implications for housing, economic development, transport infrastructure, drainage works, active travel schemes, utilities and other public infrastructure projects. We are undertaking further analysis in those areas and will, hopefully, be able to update you on that.

Our second area of concern is the introduction of "ecosystem services" as a stand-alone statutory basis for tree preservation orders (TPOs). The Department fully accepts the importance of ecosystems and the benefits that trees provide. However, we have concerns regarding how the "ecosystem services" would be measured, evidenced and applied consistently across councils. Without greater clarity, there is a risk of uncertainty and inconsistency in decision-making.

Broadly, the third area of concern is the resource implications of implementation. A number of the proposed provisions would create new duties for councils and potentially for the Department. Those include additional monitoring requirements, enforcement activity, mapping responsibilities, inspections and administration processes. The full financial and resourcing implications have not been quantified. Further evidence in that area would be beneficial to inform you going forward.

The Department has considered the Bill from a human rights, equality and rural needs perspective. We have not identified any clear incompatibility with the European Convention on Human Rights (ECHR) nor evidence of significant adverse impacts on equality of opportunity or good relations. However, certain provisions engage property rights — permitted development rights, obviously — and would benefit from further consideration and scrutiny in the process. We have also highlighted the potential implications for rural landowners, farmers, forestry interests and infrastructure providers.

Overall, the Department's assessment is that the Bill contains a number of measures that could strengthen tree protection and that merit support in principle. Equally, however, several provisions would benefit from amendment, and significant concerns remain about clauses 8, 9 and 10. Further evidence will be required regarding the practical, operational and financial consequences of some of the proposals before their full impact can be properly understood.

The Department remains committed to engaging constructively with the Committee and the Bill sponsor throughout the Committee Stage. Our objective is to assist the Committee by providing evidence, analysis and technical advice to support and inform consideration of the Bill and any potential amendments. As you are aware, we have received several questions from the Committee. We are working through that list of questions. If anything else arises, do not hesitate to add to those questions. We would be happy to answer them.

Chair, that concludes my remarks. We are happy to take any questions.

The Deputy Chairperson (Mr Stewart): Thank you, Rosemary. I really appreciate your succinct presentation and your engagement so far. There is no doubt that questions will arise.

You talked about the Department's opposition to clauses 8, 9 and 10. Could your opposition be resolved through departmental amendments, or do you oppose those clauses in their entirety?

Mrs Daly: We would love a good conversation to look at those clauses further. We understand why, in principle, they are there. However, we feel that a bit more consideration and policy development is required. As you will understand, the removal of permitted development rights would be significant. It could mean, for example, that someone who wanted to put an extension on their house could not do so without planning permission. Then, when they seek that planning permission, there is a high hurdle to get over to get it. Amendment to some of the wording to make it consistent with normal considerations in the planning process would be helpful. Do you want to add to that, Matt?

Mr Matt McCrisken (Department for Infrastructure): You have largely covered the point, Rosemary. We have already identified some amendments, and we hope to bring those forward at the appropriate stage. Certainly, there is scope for amending some of the provisions, even in drafting terms.

The Deputy Chairperson (Mr Stewart): It would be useful to get those, Matt.

In your presentation, you referred to the 15-metre buffer. A number of Members mentioned that in the Second Stage debate. You said that that buffer will impact on 1,400 homes, and you also talked about other areas where it will have an impact. Do you have a feel for what the buffer should realistically be so that it is not as impactful but still delivers the policy intent behind the Bill?

Mrs Daly: The first avenue is to look at whether you need to go to that extent. We have an operational validation checklist in place, so we could ask for an assessment at a point. The legislation could trigger the need to submit an assessment, and that assessment could be captured in a validation checklist. If you have submitted an application, an appropriate assessment could look at the impacts. If development does not impact on ancient woodland or trees, why would you restrict it? There is an opportunity to look at that. We always have to be mindful about keeping it proportionate. It is about striking a balance between protecting trees and not taking away people's permitted developments rights.

The Deputy Chairperson (Mr Stewart): That is really useful. I have a couple more questions. During Second Stage, we talked about the potential costs. At the last Committee meeting, we talked about mapping and the fact that some councils map and others do not. I imagine that there would be a cost to developing, uploading and maintaining a map. Given previous examples, is there any indication of what that may involve and cost?

Mrs Daly: It is very hard to quantify that at this stage without knowing where each council is with mapping. We believe that the map should be hosted at a local level, because the information must be current, live and relevant. There is no issue with the Department helping to coordinate the standard or provide guidance on mapping. Mapping can come through in local development plans (LDPs) and local designations. If councils are given responsibility for mapping, there will be implications. If any hazard or anything else has to be put on the portal, there will be a cost for councils. However, without going to the intelligent client function (ICF), we cannot quantify that at this stage. We are very keen to look at that area to understand the total implications. There will always have to be a balance.

The Deputy Chairperson (Mr Stewart): Of course.

Mrs Daly: You want to protect trees, and you do not want to forego that in the interests of cost. It all has to be proportionate and relevant.

Mr Scott Symington (Department for Infrastructure): A lot of the councils already maintain information, but there is a definite public interest in trying to standardise that information. From the feedback that we got from councils, we know that there is a willingness to do that. It is just about avoiding duplication and cost where possible.

The Deputy Chairperson (Mr Stewart): Yes. So, the 11 councils would, individually, plot their map, and those maps would then appear on one centralised map, overlaying each other potentially.

Mr Symington: That is the theory, yes. The key thing is to get the required information on to —.

The Deputy Chairperson (Mr Stewart): Yes, it will only be as good as whoever updates it and how regularly that is done, otherwise there will be holes in the system.

Mr Symington: Exactly.

The Deputy Chairperson (Mr Stewart): If the Bill as it is — that is, without amendment — was enacted following Royal Assent, what would the Department have to do in respect of logistics, people and investments to deliver it? You have outlined some of your concerns. What would that involve? It may be too early to say, but, if we get there —.

Mrs Daly: It is quite early to say, but I do not think that the effect should be underestimated. We have a small legislation team. This legislation would take us away from other legislation that is a priority. You are well aware that the development management regulations are coming up, and other areas are falling out of the planning improvement programme (PIP). We would have to divert resources. We also want to look at the wider review of legislation, and we have started that scoping piece. We would have to set that work aside to focus on this. Having said that, if that is what the Committee decides that we should do, that is what we will do. The pace is a very important factor as well. We would probably have to put extra resources from across the team into this space.

Mr Symington: One practical outworking is that we would have to immediately start thinking about producing, in regulations, supporting guidance in respect of definitions of phrases such as "wholly exceptional", "deterioration" and "ecosystem services". We would need to give guidance to councils in order to avoid inconsistency and to ensure that it is done in a robust and consistent way. We would immediately have to turn our minds to how to do that.

The Deputy Chairperson (Mr Stewart): I have a point arising from that. We will have council chief executives here when we speak to the Society of Local Authority Chief Executives (SOLACE). Have engaged with councils regarding any concerns that they might have? I know that there are pressures on planning departments across the 11 councils and that things are tight. Have they flagged up those pressures in conversations with you about the Bill?

Mrs Daly: We had a planning improvement board meeting last week, and it has been flagged on the agenda. It is in the very early stages. Peter has already engaged with a lot of the councils, and there is broad support for the Bill in principle. Councils are in pretty much the same space as us in that they have reservations about certain aspects of it. We hope that, following today, we will engage with the tree forum, which is a council-led forum. We very much want to sit beside the councils to get a handle on this. The woodlands are very characteristic to certain areas, and councils might want to move forward to really protect them. It is very important.

At the moment, there are different measures that provide protection for trees. As you are aware, there are tree preservation orders, which are referred to in the Bill. Those can be conditioned, and any conservation areas can have an automatic tree preservation order. The regional planning policy, through the strategic planning policy statement (SPPS), is working into local plans, and councils are coming out with their own policies to protect trees. It is about having proportionate response. Do we need to get into a legislative framework if that is working well?

Mr Symington: The major concern is that three of the main clauses try to bring together the framework of tree replanting, enforcement and monitoring. Those are good objectives — the Bill seeks to improve all of that, and it needs improved. However, the councils see there being practicality, proportionality and resource implications and expanded responsibilities relating to arboricultural assessment, monitoring, inspection, administration and enforcement. A lot of them are saying that it is good in principle but that they do not have the resource at the moment. It would have to be resourced, and I think that that is mainly where the concerns are.

The Deputy Chairperson (Mr Stewart): No doubt we will hear that when they present to us down the line.

Mrs Daly: We have other levers. Believe it or not, the planning improvement programme is another lever, whereby you could bring this in as a bespoke piece on which you work collaboratively with councils. We have enforcement, and there is no reason why homing in on the enforcement impacts around TPOs could not be part and parcel of that review.

The Deputy Chairperson (Mr Stewart): That is all from me at this stage. I might come back in at the end.

Mr Harvey: Chair, you touched on some of the questions that I was going to ask, including on mapping responsibilities.

I want to tease out a bit more about the 15-metre buffer. You mentioned that as a problem but did not suggest what a comfortable buffer would be. Could it be half of 15 metres, or could it be a third — 5 metres? What are your thoughts on that?

Mr Symington: The 15-metre buffer has been reduced, and that comes from a standard across the water, based on the impact on trees. The issue is not so much the 15-metre buffer but a 15-metre buffer that leads automatically to refusal of planning permission or withdrawal of permitted development. If an additional impact assessment were involved in that, that may change things.

Mr Harvey: Is that about reducing the distance as well as —?

Mr Symington: Again, without pre-empting how this will go, the issue with the 15-metre buffer is, as I said, that the Bill directs that permission be refused unless there are "wholly exceptional circumstances". It would potentially rule out a lot of things that may not have any impact on the woodland at all. It is about the impact in the middle that causes the disproportionate —.

Mrs Daly: The reality of that is that someone might not be able to put on a back porch, put in new windows or put up a fence. That is where the distance of the buffer probably does not really matter. It may be that, with that buffer, you have to go over and above to demonstrate that there is no impact. If you cannot demonstrate that, that leads to the question of whether it should be approved. You would be taking away someone's permitted development rights, and, therefore, they would have to apply to permission. It seems to be a double barrier in that the permitted development rights are taken away and there is also such a high hurdle to get something approved. It goes back to the element of being proportionate.

Mr Harvey: There is a lot more red tape and expense with it.

Mr Dunne: Thank you, folks, for coming in. A couple of the points that the Department has laid out are quite alarming. Paragraph 58 of your paper states:

and so on. Paragraph 59 states:

It is alarming to see the cross-cutting impact — there would be an impact on not just Infrastructure but other Departments. Will you flesh out the work that you did to come to that assessment of how far-reaching the impacts and consequences of the legislation could be?

Mr McCrisken: As drafted, the Bill has a mandatory 15-metre buffer for both planning applications and permitted development rights. Effectively, planning applications will be refused, and no permitted development will be granted, within that 15-metre buffer. When you look at the types of applications that could be involved in the buffer areas, you see that that covers all the topics that you mentioned: active travel, roads and infrastructure. It affects putting pipes in the ground, cycle paths, footpaths and roads. It covers a wide range. Any development or infrastructure that falls within that 15-metre buffer has the potential to be affected. That is where the conclusion comes from.

Mr Dunne: Yes. Your assessment is that the Bill would have significant and far-reaching implications in so many areas.

Mr Symington: A development within 15 metres would have an impact assessment. If we agree, in principle, that ancient woodlands are so valuable and so rare that they should be protected, there would be a very high hurdle in that regard. However, the concern is about ruling out development altogether. Again, how we get past that issue will depend on how we define "wholly exceptional circumstances". Some thought could be given to critical infrastructure and such things that could warrant exceptions.

Mr Dunne: Those are very important points for us all to consider at this stage. At paragraph 82, the Department notes:

You go on to talk about the potential implications for landowners, forestry, rural businesses, farmers and so on. In your experience, is it normal practice for a Bill not to have had a rural needs impact assessment by this stage?

Mrs Daly: If it were a departmental Bill, we would be in a position to do that, but, because it is a Private Members Bill —.

Mr Dunne: I appreciate that.

Mrs Daly: If it moves forward, we will look at that.

Mr Dunne: Those are also areas in which you have picked out the potential impact of the far-reaching nature of the Bill. Thank you.

Mr Boggs: Thank you very much for coming in today. I will pick up, first, on the impact on councils. I made the point at Second Stage that we have serious concerns about handing more powers to councils, as is happening through the Dilapidation Bill, while those councils get fewer resources every year, particularly from the rate support grant. Councillors are also trying to keep the rates as low as possible, so we cannot build on services, never mind introduce new stuff. In preparation for the conversations that we will have with SOLACE and all the rest, how do we quantify the cost of the Bill to councils? It is similar to the Dilapidation Bill: there may be a town centre that has 15 dilapidated buildings, but, if you deal with them in year 1, it is less likely that you will have 15 more buildings in years 2 or 3. We may find more TPOs popping up in the future. There is ancient woodland to protect now, but how do we quantify when we will start to see a decline in the amount of money that will be needed to enforce the principles of the Bill? How do we even find out what the initial costs will be?

Mrs Daly: The definition of ancient woodland is very specific — it is set out in the Bill. Not a lot of trees come into the definition: it covers only 0·04% of trees in Northern Ireland, so is not extensive. You have asked about quantifying what is involved in the process. There would be designation, mapping and a training element for officers so that they understand what is being protected. You would have to have departmental guidance and possibly even guidance at a local level. You would need to provide a whole suite of things. You would have to do the monitoring. There would be implications around permitted development rights, which are there to save time in the system. If you were to take those away, those 1,400 homeowners would have to make small minor amendments to their homes and, therefore, make planning applications. That would generate more work in respect of those properties that, otherwise, could automatically be deemed as permitted development. Utilities is another aspect. That is not necessarily the responsibility of councils, but there are implications for anything where you are going into the ground, so upgrading pipelines, waste water or anything like that is another factor.

Mr Symington: Matt, do you want to say something about the information that we have requested?

Mr McCrisken: We have written to the Northern Ireland Local Government Association (NILGA), SOLACE and the 11 councils individually, asking for evidence in order to help us to gather the data that we need to quantify the impact. There would be a lot of operational issues. If there are increased numbers of planning applications as a result of less permitted development, or more TPOs or enforcement monitoring, all of that will bring costs in staff; operation; travel to and from the sites; and issuing arboricultural reports and specialist assessment reports. If you push through to enforcement action, for example, you are looking at legal costs. All of those things need to be quantified. We have written to those bodies to obtain that evidence.

Mr Boggs: Things are improving. All the councils have a different approach to planning. A more streamlined approach is coming in through validation checklists. However, you, as a Department, are dealing with 11 different councils. How do you get them all to the same starting point, in order to try to create a streamlined approach? It will also depend on whom the councils dish out responsibility for this work to. Would we be taking valuable time away from what in some councils is already very limited planner bandwidth or capacity, given the turnover that we see in some local councils?

Mrs Daly: The key resource impact is in getting it established and set up. Sometimes, having legislation can make things very black and white, which can be easier in the long term: for example, what an ancient woodland is and how it is protected. There is more than one way to do it, including in guidance and policy development, which are there. We are really grateful for the Bill. It puts a real focus on this area. It brings us back to prioritising it as a main area of work that we need to look at. It is very timely, and we thank Peter for bringing it to our attention. Another element is that councils would probably have to have a tree specialist. I know that Belfast City Council has a tree specialist. Councils would probably need to have that expertise in-house. The key part will be getting it established and then operating. We can sometimes be criticised for making new legislation that has implications for bodies outside of ourselves, so we have to be careful.

Mr Boggs: I think that Belfast City Council's tree specialist provides expert advice to other councils. You could have a situation in which that person no longer has the capacity to do so because they are doing so much in their own council.

Local development plans are moving forward in councils, which will have an impact on development zones, on where we can put houses and all the rest. How would this have an impact? Say that we remain with a 15-metre buffer, that I have a house just on the edge of it, and that, as I age, I need a downstairs bedroom and a downstairs bathroom. How would that impact on the buffer remaining? If you go with the approach of "no negative impact", it would be very specific to the case that you are dealing with, but, when it comes to LDPs, where would we go?

Mrs Daly: As I said, legislation can make things black and white, whereas, when it comes to LDPs and policy, things are more open to interpretation. There is always a balance to be struck in that process. You could take in other factors that may be more relevant, or it could be balanced in favour of someone getting their extension if they need one. You have guidance and regional and local policies. A lot of the local development plans are set up to take forward not only designations or policies around trees but key site requirements on particular sites. Conservation areas are also highlighted as a designation. Those are automatic TPO areas, so you cannot cut down any of the trees in them.

It is about getting a proportionate response to the protection of such unique environments.

Mr Symington: That is an important point. If the Bill becomes law, it would have to be considered against the LDPs, because, as Rosemary said, a site may be designated for housing and have key site requirements stating, "You must stay outside this area of trees", but primary legislation supersedes that, so there could be a tension there. That goes back to the wider point, which is that we feel that things like that can be dealt with more effectively through policy and guidance. High hurdles can be set in policy, but setting those in policy always allows for planning judgement to be used when offsetting that consideration against other public interest issues.

Mr Boggs: Thank you.

The Deputy Chairperson (Mr Stewart): I will hand over to the Bill sponsor, Peter McReynolds.

Mr McReynolds: Thank you, Deputy Chair.

The Deputy Chairperson (Mr Stewart): No pressure.

Mr McReynolds: Thank you. I always try to come in at the end of evidence sessions on my Bill to let the Committee do its thing. I have been —.

Mr Boggs: Railroad through everybody else's questions. [Laughter.]

Mr McReynolds: No, no, no.

Thank you for your engagement to date. I hope that you have taken on board the fact that adaptations have been made since those initial conversations. During the Second Stage debate, I tried to emphasise the pragmatic approach that I have always tried to take when making legislation. As Bill sponsor, I have found it fascinating to listen to today's conversation, knowing the impact that the Bill could have and what the intent has always been. Potential amendments are going through my head in a constructive way right now.

I will touch on two broad themes with regard to potential points of contention. I note that DFI suggested that the concept of "ecosystem services" could create uncertainty. How does the introduction of the concept of ecosystem services differ from the current concept of "amenity" in the Planning Act (Northern Ireland) 2011? That is not defined in the legislation, and professional judgement is required in order to act on that. That is done, initially, at stage 2, if — I always forget this word — the tree is in danger of being felled. Where does the tension come from?

Mrs Daly: The concept of amenity is well-tested and brings a level of subjectivity to the assessment. The concept of ecosystem services is wide-ranging and has not really been tested through legislation. We feel that there could be a lot of challenge in that area and that a lot of ambiguity could be brought by the legislation. If you are seeking to protect the amenity, environment and perhaps even the safety aspect of trees, it may be easier to define that than to refer to ecosystem services. While ecosystem services are referred to in the SPPS, the term is not commonly used in that assessment.

Matt, will you give a summary of what is done in other jurisdictions?

Mr McCrisken: There are some examples of where other jurisdictions have broadened out amenity through policy guidance, which is a suggestion that we would make. That has been done in Wales in particular, where there was a recent consultation on whether to go statutory. In the end, they decided that stronger policy guidance on the definition of amenity would be the way to go. In Scotland, "cultural and historical significance" was added in. In the Republic of Ireland, it is "amenity or the environment" — "amenity" has been kept in, but they broadened it out slightly.

Mr McReynolds: Which jurisdiction was that?

Mr McCrisken: The Republic of Ireland. They have "amenity or the environment" added in.

As Rosemary said, our concern with the term "ecosystem services" is that it is not defined in the Bill. The list of what constitutes ecosystem services is at schedule 1A, which is to be inserted into the 2011 Act. The services listed are not defined, and the list is non-exhaustive, which means that we would need to have a consistent framework for how they would be assessed by councils. That would be needed primarily to give some direction and certainty to councils on what they are considering and how they need to consider it as well as to reduce the likelihood of any subsequent challenge, because we would not want more work to be produced as a result of it. We are taking advice on that, so it is not that this is the end of the matter. We are taking advice on how that is drafted and at what provisions could change or what amendments could look like for that clause to be kept in. Our concern is with the open-endedness and ambiguity that could be caused by putting that in.

Mr McReynolds: The word "challenge" has been mentioned a couple of times. What might that challenge look like?

Mr Symington: Without defined and measurable criteria, a case of someone requesting that a tree preservation order be made on the basis of the ecosystems services criterion and that request being turned down could lead to judicial review of the council not having taken that properly and fully into account.

Mr McReynolds: I am trying to play out a judicial review of a TPO in my head. Has a TPO refusal by a local council ever been judicially reviewed?

Mrs Daly: TPOs can be appealed if the steps have not been undertaken in the right way. If the legislation is not clear, that can be open to interpretation, and, sometimes, that will be the subject of a judicial review. It happens where there is no clear guidance, interpretation or understanding, whereas other jurisdictions have looked at that.

In assessing an application or a proposal, the concept of amenity is about the appearance of ancient woodland and the contribution that it makes to the character of an area. That is why it is so important. It is similar to the reason for having a TPO: the age and character of the trees are looked at. During the Second Stage debate, we heard about the "Bendy Tree" and the "Invisible Tree". That was about the amenity value of those trees. It is why people want to come and see them. They very much inform the visual space. That is a clear concept in planning. It comes through a lot of policy. It is similar to some of the criteria for assessing a listed building, which include its impact on the character of a place. Those are common themes that are already well-trodden tracks. "Ecosystem" broadens that out. As Matt said, the list that is set out here is not exhaustive. It could change a lot in five years' time, and then you would be into that debate again. Keeping the definition broader and more general at this point is possibly a better way of drafting it.

Mr Symington: The objective is right. It is true that "amenity" tends to focus on visual importance whereas your objective is to recognise the wider importance of trees, which is absolutely right. Some of the consultation responses made the point that pretty much any tree could fit at least one of the things in the "ecosystem services" list, and that could lead to increased requests for tree preservation orders. That is not to say that that is necessarily wrong; it is just about thinking about how it would be applied consistently and robustly and making sure that it would not have unintended consequences for your objective, which is to recognise the wider value of trees and not just their visual amenity.

Mr McReynolds: Scott, in one of your answers to another member, you mentioned the replanting of felled TPO trees. Is that not currently a requirement under the Planning Act? I think that councils said that the requirement to replant trees could put an onerous burden on them — I cannot remember the phrase used — but is that not already a requirement?

Mr Symington: I think that it is already a requirement. Is the "heavy standard" for replanting not the difference?

Mr McCrisken: Do you mean the issue with replanting?

Mr McReynolds: Yes.

Mr McCrisken: The Department is broadly in support of the provisions in clauses 4, 5 and 6. Some of the issues were to do with how that is defined. There were some legal and drafting issues. It is not necessarily about the "what" but about the "how": how will we put those things in place?

Mr McReynolds: How would the Department explain the loss of ancient, long-established woodland? Rosemary, you said that it covers 0·04% of Northern Ireland. We are not talking about swathes of land. It is quite a small area. How would the Department explain losses of such woodland and the planning applications that potentially impact on them?

Mrs Daly: Things such as character, tree preservation orders and landscaping are a key part of any application. You would hope that that loss would not happen. The recent appeal decision that we talked about — was it Tullygart?

Mr McReynolds: Tullynagardy.

Mrs Daly: Tullnagardy. That was a good example of how the policy framework worked. The appeal was considered properly at council level, was refused and then went to the Planning Appeals Commission (PAC), where the decision was upheld. That process applied the policy as it stands, and it protected that woodland.

There is no doubt that the Bill will bring a level of robustness and add another layer of good legislative practice. It will certainly give that particular type of woodland another level of designation. Those factors would be a material consideration in any application that might come before a council. We support the objectives of the Bill. It is just about being careful that, in some of the implications or, as Scott referred to them, unintended consequences of the drafting, it does not go too far, meaning that you will take away people's permitted development rights and they will never be able to get planning permission in the same area at the same time. There are ways around that, and we have concerns about only those clauses; broadly, we support everything else.

Mr McReynolds: You mentioned Tullynagardy Wood, which comes up a lot. Was that case an example of the policy working? As one of the people who watched the meeting that night, I saw the political representatives unanimously object to the application, but council officers had felt that there were not enough grounds for objection in the policy, so they supported the application's going to the next stage. When you think of the resource that went into the case, including its referral to the PAC, do you think that it is fair to say that it shows that the policy works?

Mrs Daly: That is where your sort of legislation — it is there in black and white, or allegedly so, given that legislation is always open to interpretation — would provide a higher tier of protection: tree legislation does help.

Mr McReynolds: The Bill would have strengthened council officers' hands in enabling them to object on that night in north Down — there was unanimous objection to the application going ahead; the situation arose because the policy was not there — and that is what the Bill seeks to achieve. I notice a slight tension in the wording of the Bill, and I think that an amendment could get us to a better place. Rosemary, you mentioned windows and porches, for example: it is 100% not the intention for those to be caught. Something about the impact on ancient and long-established woodland could be included in the Bill, because putting a window in will not impact on such woodland, but building five or six luxury homes clearly will. There is an amendment in that that I would be comfortable with.

Mrs Daly: It almost as though you need an inbuilt caution trigger. Providing for the removal of permitted development rights, the requirement to get planning permission and the necessity of demonstrating that there are "wholly exceptional circumstances" to justify its being granted sets a high bar. Would applications for the likes of such small bits of development in such an area ever meet that test? Possibly not. It is wee bit like undertaking an archaeological assessment: it is not that there is no development where there are areas of archaeological interest, but you have to get a specialist in to quantify and mitigate risk. It is quite similar.

Mr McReynolds: Thank you. Lastly, Chair — I thank you for your latitude — Scott mentioned the 15-metre buffer zone, which has come up naturally in the course of conversation today. In England, is that zone 50 metres? I had thought about proposing a 50-metre zone as in England. Has the Department looked at how that provision has been applied in England? Could we learn from its approach to introducing a buffer zone?

Mr McCrisken: It is interesting that, in the other jurisdictions, that is brought in through guidance. In England in particular, it is in standing advice that the zones are of 15 metres and over, so there are zones of up to 50 metres — you are right — and, in some cases, even more than that, depending on the impact assessment. The 15-metre zone is also found in a lot of the validation lists that some of the English councils use, which require an arboricultural or a tree assessment. One of the recommendations in the British Standard that is associated with those lists is 15 metres. There is a lot of guidance and policy on 15-metre zones across the jurisdictions. The issue is that the Bill would mark the first time that it would be mandated. It would remove latitude, balance and the discretion that there is at council level to say, "This is a window", "This is a porch" or, "This is a solar panel". We could probably learn from that distinction: you can have strong guidance that sets the zone at 15 or more metres, but, when you put it in legislation, it becomes static.

Mr Symington: Our starting point is that the objective of retaining all ancient and long-established woodland is incredibly important, so the bar for development should be set very high in policy. It is about how best to deliver that, be it through policy or guidance, without unintended consequences. I do not know the detail of the Tullynagardy appeal — you are right about what happened in the council — but the Planning Appeals Commission applied the test properly in its decision. That was the proper interpretation of the policy, and, going by that, you would say that it was robust, but if, as you said, you were to go by the previous stage that involved the council planners, you would not say that. It is about finding the best way of achieving the objective without causing unintended consequences for the planning system.

The Deputy Chairperson (Mr Stewart): Paul, do you want to come back in?

Mr Boggs: Very briefly, Chair. At clause 8, it is stated that:

My question stems from the fact that everybody is a bit scarred over the A5, although the judgement has been made that the initial decision was right. Is that enough to cover a situation in which a Department would not be bringing forward a critical infrastructure project unless it thought that it met the "exceptional circumstances" test, or would we need something else?

Mrs Daly: That is part of our issue: it is not clearly defined. What is "wholly exceptional"? There is the imperative reasons of overriding public interest (IROPI) test for regionally important development. We had a conversation earlier and were saying that it would be with a major railway line, major road line or something like that. It is a high legislative bar. Is that proportionate? It goes back to that question. Yes, it could have implications for the roll-out of infrastructure, utilities, electricity lines and those sorts of things because of the blanket term, "exceptional circumstances".

Mr Symington: It is in the national planning policy framework (NPPF) in England, Matt, is it not? You can tell that Matt has done all the preparation for this. [Laughter.]

Mrs Daly: We will give him the credit that he deserves.

Mr McCrisken: "Wholly exceptional circumstances" is not defined in the Bill, but it is not defined in the NPPF either. It has "wholly exceptional reasons". However, it has a useful footnote. It states:

In England, a nationally significant infrastructure project (NSIP) is a major electricity generating station or a strategic water supply reservoir, for example. The orders under the Transport and Works Act are the like of a railway line. Some examples of the hybrid Bills are High Speed 2 (HS2) into the Channel Tunnel and Crossrail. That gives you an idea of the level at which "wholly exceptional circumstances" would sit. The analogy in Northern Ireland may well be some regionally significant planning applications for such things as an electricity transmission project, major waste water infrastructure by NI Water and strategic transport schemes. It gives you an idea, but it is not defined.

Mr Boggs: If the Bill were enacted today, councils and the Department would be their own judge and jury on what they would see as exceptional circumstances. Are there other pieces of legislation regarding planning that have a similar issue? I do not mean "issue" in a bad way. Do they have a similar situation where the person bringing forward the application would decide whether there are exceptional circumstances?

Mr Symington: We do not have "wholly exceptional circumstances". That is drafted to be a very high bar. As Rosemary said, it is similar to the IROPI test in the habitats directive, which is about overriding reasons of public interest. It is about trying to identify those situations where it is overriding public interest. It is not your normal economic development or housing need: it is the top level. To achieve the objective of protecting the areas of woodland by making the bar so high, we would want to have some kind of regulations or guidance. As Matt said, that is the kind of level that we would be looking at. Without that, it will be open to every council planning authority to decide what "wholly exceptional" is, and it could be anything.

Mr Boggs: Thank you.

The Deputy Chairperson (Mr Stewart): Peter, do you want to come back in on that?

Mr McReynolds: I am 100% behind what has been said about the IROPI test. It covers the pragmatism that I was talking about. It is not about windows or porches, which were the examples that you used, Rosemary. If something like that test were able to help the Bill along, I would fully support it.

The Deputy Chairperson (Mr Stewart): There is nothing else at this stage. Thank you for coming along and for your engagement. You have questions that you are prepping for. No doubt, there will be more from the Committee as this stage progresses.

Mrs Daly: I think that we are due to have them back on Friday, but we are working, and, because we are writing out, they might be slightly delayed. We will get them to you as quickly as possible to help the process.

The Deputy Chairperson (Mr Stewart): It has been a useful session. Thank you.