§ 4.19 p.m.
§ Lord Skelmersdale rose to move, That the draft order laid before the House on 16th May be approved.
§ The noble Lord said: My Lords, this draft order is largely a catching up exercise and introduces powers which have been enacted in Great Britain over the period since Northern Ireland planning and building 1246 regulations legislation was last amended. The Department of the Environment is the planning authority in Northern Ireland; it also has responsibility for making building regulations although enforcement of the regulations falls to district councils. The two aspects of the department's work have been amalgamated in the draft Order in Council both for administrative reasons and because of the non-controversial nature of the provisions.
§ The planning amendments which largely amend the Planning (Northern Ireland) Order 1972 have two aims: first, to make the development control system more effective by introducing or refining procedures which are considered desirable; and, secondly, to reduce and remove some of the restrictions on developers. The main provisions, which are similar to those existing in Great Britain, will enable the department to designate areas as simplified planning zones, serve discontinuance orders on developments which although established are no longer suitable for the environment; enter into planning agreements with developers equivalent to those under Section 52 of the Town and Country Planning Act 1971 to regulate the development or use of land; serve repair notices and take emergency action to protect listed buildings; introduce controls over the keeping of hazardous substances and provide for the Crown to obtain planning permission for land of which it proposes to dispose.
§ A provision completely new to the UK is contained in Article 7, as a response to widespread demand. It requires those who carry out acceptable development without planning permission to submit a subsequent planning application with the appropriate fee, or risk a fine of up to £400 with additional penalties for continuing the offence. The department will consider the application, go through the approprite consultations and impose such conditions as it feels necessary. This will remove the present unacceptable situation whereby payment of planning fees is—if not voluntary—at least avoidable. Quite naturally the law abiding majority resent the ability of a small minority who put up buildings which are acceptable in planning terms to get away without paying the planning fees. The remainder of the planning amendments I would regard as of a minor nature being either procedural, or to allow for consolidation to take place.
§ I turn now to the provisions relating to building regulations contained in Part III of the proposed draft order. I should remind the House that building control is exercised in Northern Ireland through the Building Regulations (Northern Ireland) Order 1979. The powers contained in that order are broadly equivalent to those which applied in England and Wales up until 1984 when the Housing and Building Control Act was passed. The building control provisions of that Act were subsequently consolidated with other relevant legislation in the Building Act 1984.
§ The draft order now before the House is designed to take account of certain provisions introduced in England and Wales by the Housing and Building Control Act. This will bring Northern Ireland enabling powers into line in those respects and tidy up some aspects of existing legislation. The drafting 1247 of Part III, which contains only eight articles, follows closely the corresponding provisions of Part I of the Building Act.
§ The most far-reaching change is the introduction of rights of challenge and appeal against the issue of a contravention notice by a district council. A contravention notice is a notice issued in respect of work which contravenes building regulations and will possibly be more familiar to noble Lords through its English equivalent—that is, a Section 36 notice.
§ Other important changes are the prohibition of service of a contravention notice in respect of work which has been completed for more than 18 months, the introduction of provisions governing the relaxation of building regulations for existing work and an enabling power to prescribe fees for appeals to the department should that prove necessary.
§ The remaining articles and related schedules are of minor significance. They provide for modifications and consequential amendments to existing provisions of the 1979 order. Many of the powers proposed in the draft order are enabling powers and provision has been made to introduce them on appointed days. This will require the making of new regulations which will of course be subject to the usual consultation process.
§ The proposal for this draft order was circulated for comment to a wide variety of interested parties including all district councils and relevant representative bodies. Comments received have been taken into account in drafting the order before the House. I believe that what we are suggesting here is both sensible and necessary. I beg to move.
§ Moved, That the draft order laid before the House on 16th May be approved.—(Lord Skelmersdale.)
§ Lord Prys-Davies
My Lords, I thank the Minister for his explanation of the principal contents of this wide-ranging and very detailed order. On my rough count, it repeals over 40 provisions in seven earlier pieces of legislation. In addition, the tortuous Schedule 1 and Schedule 1A contain about 100 amendments to two principal Acts and two orders. I have not been professionally involved in planning law, but I am sure that the practitioners in Northern Ireland would be delighted if the department could now introduce an order to consolidate the legislation in this area. I wonder whether that legislation is likely to be put in hand.
I want to raise a few detailed points on Part II. I apologise to the Minister for not alerting him to those questions, and therefore I shall fully understand if the replies are not readily to hand. That will be my fault. The new procedure for making and altering a development plan and the short procedure for altering a development plan seems to strike the right balance between the need for a simplified and effective procedure on the one hand, and for adequate consultation and representation on the other. Has that balance been achieved? We must bear in mind that the planning authority is at a distance from the elected authorities and that the courts have only a limited power of review of the department's decisions.
1248 The two procedures—they are set out in Article 3—require the department to consult the district council for the area. We welcome that requirement. What will be the position where the development relates to land located within the boundary of council A, but could adversely affect the interests of council B? Is the department, by virtue of the order, under a duty to consult council B, as we submit it should be?
Again, it would be helpful if the Minister could give us an indication of the circumstances in which the department envisages that it will invoke the short procedure, as the order is vague on that point. What are the guidelines for determining whether the issues are of sufficient importance to warrant the full procedure? Will they be set out in the regulations? If the department decides to invoke the short procedure, can that decision be challenged by a district council or by any party who considers that his interests would be adversely affected by the decision? I shall be interested to hear the Minister's reply because, as I read the short procedure, it does not require the department to notify the change, or proposed change, to persons who might be affected by it.
I appreciate that the proposed change will be advertised; but the publication of a notice is no guarantee that the proposed change will come to the attention of the party who might be affected by it. Under Article 3, a representation, or objection to the proposed change, may be made within the prescribed period. As we have not seen a draft of the regulations, will the Minister tell us what the envisaged period is and whether, at the request of a party, the period can be extended in prescribed circumstances?
I want to deal with Article 7 which has been referred to by the Minister. It recognises a mischief, but I am not sure whether it addresses the problem effectively. As the Minister explained, there is in Northern Ireland, sadly, a long record of planning law requirements being ignored by far too many developers. I read the report of the debate on the appropriation order in another place, and I was surprised to find that 25 per cent. of planning applications in one district council area related to schemes upon which building operations had already commenced. The question arises whether article 7 resolves the mischief. I cannot answer that question; but I note that the solution relies on giving the department the power to require a developer to apply for planning permission, and if he fails to do so, or to comply with the conditions, then he will be committing an offence. Is the proposed penalty an adequate deterrent? The question that will be asked is whether it should be made an offence, subject to carefully drafted or drawn defences, to embark upon the development without having applied for and obtained the appropriate planning consent.
I wish to ask one short question about article 10. Under this article, the department may enter into an agreement with a developer which imposes an obligation on the developer to undertake or observe certain agreed obligations and that the burden of this covenant will pass to a successor in title of the developer. Will the Minister confirm how exactly this obligation will be binding on the successor in 1249 title, particularly where he is a purchaser for value without notice of the obligation?
I had assumed that the answer might well be that the obligation would be entered in a register of charges. Possibly the Minister will confirm that. Finally, I wish to draw the Minister's attention to a printer's error in the last line on page 15 and again in line 16 on page 16. I must leave it to Members of another place with knowledge and experience of planning law in Northern Ireland to do full justice to the 71-page order. On that basis, from these Benches I approve the order.
§ Lord Skelmersdale
My Lords, I am grateful to the noble Lord, who, in spite of what he calls his limited knowledge, has obviously gone through this order with a fine toothcomb. I regret that I am unable to answer all his questions immediately. However, I shall try to answer some of them.
One of his questions was as to whether Article 7 was sufficiently strong to correct the mischief, as he called it, of people getting away without paying planning application fees. Yes, I believe it is. At the moment enforcement notices can only be used where a development is carried out without planning permission and is unacceptable from a planning viewpoint. An offence is only committed if there is no reaction following an enforcement notice. That last part is the change in this order; therefore the offence will be committed if the enforcement notice is ignored.
That is the situation in the whole of the United Kingdom and the Planning Appeals Commission has specifically stated that it will not accept an enforcement notice where there are no planning grounds. The submission notice powers will give us the right to request the planning application, with its attendant fee, or to take a developer to court should an application not be made.
As the noble Lord knows from his practice as a successful country solicitor, we regularly review the scale of fines, not only in Great Britain but also in Northern Ireland. It is only after a period of operation of such changes that we shall know whether the £400 fine plus the daily addition is appropriate. We shall keep it under review.
It also right that the department should have powers to make planning agreements where that is felt necessary. The power under Article 10 will only be used reasonably where additional infrastructure is required because of the proposed development and where the provision of infrastructure is not within the planning programme of the appropriate authority. The case which the noble Lord may have been thinking of where the land, the half-built property or half-built estate was sold on to another person would happen very rarely. However, I shall investigate the point and write to the noble Lord.
He said that everybody was waiting for consolidation of planning legislation. He is absolutely spot on there; everybody is and has been for a considerable time. We decided that it would be appropriate to wait until after we had received the approval of Parliament for the order. The consolidation measure will be enacted as soon as 1250 possible, following the passage of the order. I am happy to be able to tell the noble Lord that the drafting is already in hand.
The noble Lord also asked about alterations to a development plan. The answer appears to be that that occurs only in the case of relatively minor changes in the area plan. One cannot identify whether changes are minor or major until one studies the individual area plans. Circumstances will therefore dictate what happens in any particular case.
I understand that it is unusual for development plans to be notified to particular individuals when they are being drawn up. That is also the position, I believe in England and Wales. I am drawing on memory from the time when I had some responsibility in this area and piloted various planning Bills and planning orders through your Lordships' House. I seem to have awoken a chord of response in the noble Lord. Perhaps he wishes to intervene.
§ Lord Prys-Davies
My Lords, I was drawing a distinction between the making of a plan and the alteration of a plan. I had understood that in the making of a plan a party who would be affected would be notified. However, when a plan is altered, such a party is not notified. One merely serves notice of the proposed change. I thought that there was that distinction.
§ Lord Skelmersdale
My Lords, I understand that the situation is not as the noble Lord describes. Advertising is carried on both in the making of the plan and in the redrawing of it. However, perhaps I should look at the matter. I note the noble Lord's interest.
As the noble Lord has said, this is a major piece of legislation. It runs to some 70 pages. I am slightly surprised that the noble Lord managed to spot two printing errors. I understand that printing errors in legislation can be corrected without further recourse to either House of Parliament. I undertake to ensure that this will be done.
On Question, Motion agreed to.