Planning Bill: Second Stage

Part of Executive Committee Business – in the Northern Ireland Assembly at 5:30 pm on 22 January 2013.

Alert me about debates like this

Photo of Steven Agnew Steven Agnew Green 5:30, 22 January 2013

I thank the Member for his intervention.  I agree that the reasoning for asking for the extension is sound.  The fact is that the Bill has new additions without public consultation.  Should the Bill be seeking to enact only something that had already been through public consultation and the Assembly processes, I think that the Minister would have a strong case for having no public consultation.  That is why I again question why these "new additions" have been included in the Bill. I think, as I said, that the speedy introduction of sensible and agreed legislation does harm to that objective.

So, I welcome the enactment of some of the provisions in the 2011 Act, including the faster processing of applications.  I do not think that you would hear anyone argue against that.  Whether an applicant or an objector, speedy resolution is in everyone's interest, and the Minister has referred to progress that has made on that.  Further progress would be welcomed.

On having a faster and fairer appeals system, I share some of Mr Allister's concerns: it may be faster but I am yet to be convinced that it will be fairer, and I will come back to that.  I certainly welcome enhanced community involvement; although, again, I am dismayed that we are still without legislation for third-party rights of appeal.  However, the enhanced community involvement is a step in the right direction.  Simpler and tougher enforcement, again, is to be welcomed.  We need to see more enforcement.  The perception is that a blind eye is too often turned by Planning Service to breaches of planning regulations.

I also welcome the increase in staff numbers in the environmental crime unit.  I welcome particularly the greater powers to do with retrospective planning applications; a practice that has, to some extent, brought the planning process into disrepute. 

Measures to enhance the environment and strengthen the system are to be welcomed.  The introduction of the clause on good design seems fairly uncontroversial.  It may be uncontroversial in principle, but I suspect that, in practice, it may be very controversial.  I would not like to be the person who drafts the guidance notes on how you enforce good design.  However, the clause is to be welcomed.  It could, as I say, cause some difficulties, but I will wait and see on that one. 

Reference has been made by a number of Members to diseased trees that are under a tree preservation order (TPO).  The fact that a TPO would still apply to a diseased tree is certainly to be welcomed. 

Most of the benefits from bringing forward legislation sooner have been through the consultation process and agreed by the Assembly.  They are to be welcomed.  Again, however, I would question the reasoning for the introduction of new clauses to the Bill.  

I come now to the issue of economic considerations and the clause to promote economic development.  The clause has caused concern and suspicion.  The Minister himself made reference to PPS 24, which he wisely scrapped, for want of a better word.  That was the right decision.  An overriding precedence given to economic factors could have caused many problems, even in areas such as health and safety; if economic considerations were to override health and safety, that would be very bad policy.  However, because of that attempt, many see the clauses on economic considerations as an attempt to legislate where the policy did not come into force.  I appreciate that the overriding nature of PPS 24 has not been included in the Bill.  However, even if you accept that, you then have to question the purpose of putting it there.  That came up in the Environment Committee, and an official stated that the Bill:

"gives economic development the statutory weight of a material planning consideration ... I suppose that, ultimately, legislation gives it the highest status in policy."

I have concern with the suggestion of "highest status in policy".  It suggests a hierarchy.  I suspect that the Minister will refute that, but, if that is the case, it contradicts by definition sustainable development.  I would be concerned about that potential conflict and contradiction. 

Previously, in reference to PPS 24, the Minister stated that:

"Many rightly argued that economic considerations are already a factor in planning decisions and are already dealt with in a balanced way alongside other material considerations".

That suggests, and, to me, confirms, that economic development is already a material consideration.  If that is the case, I would again question why it has been put in the Bill.  When I put that question to him, the Minister did mention the reference to sustainable development.  If economic considerations are to be given explicit mention, I suggest that what might be more helpful would be for environmental considerations to be given equally explicit mention.  If it brings no improvement in practice, I question its necessity in the Bill. 

What might be helpful is an explicit definition of what we mean by sustainable development.  I would not accuse the Minister of this, but, often, in Departments, sustainability and sustainable development are used as buzzwords, without being founded on an understanding of what sustainable development means.  That would be beneficial in really giving weight to sustainable development, which, inherently, includes economic considerations.

I fear that the inclusion of this clause is, to some extent, a concession to those who wanted to see PPS 24 and, perhaps, an attempt to say to those who are saying that we need to see economic development because the economy is struggling — I fear that it is a knee-jerk reaction to the short-term economic situation.  Knee-jerk reactions create bad legislation.  Indeed, the lack of consultation on the new clauses — as well as clause 10, which I will come back to because it is a significant amendment — is bad process.  I gave reasons for that earlier in my speech.

OFMDFM's 'Practical Guide to Policy Making in Northern Ireland' states:

"Proceeding with no or token consultation may appear to save time in the short term, especially in a context of limited resources, but it can result in problems later."

In fact, we are seeing that already because, whilst we may have saved time in public consultation at the start of the Bill's progress, additional time may be required for its Committee Stage.  I second Anna Lo's points about the Committee's capacity to conduct public consultation compared with that of the Department.

Even if we accept that clause 2 does not give any greater weight to economic considerations, the specific reference in clause 6 to the weighing-up of economic advantages and disadvantages could have considerably detrimental unintended consequences.  Those have been mentioned, to some extent, by other Members.

What we are trying to do is streamline planning, speed it up and make it more efficient, but by introducing the specific reference to the weighing-up of economic advantages and disadvantages we open up all sorts of problems.  It could result in more appeals and judicial reviews and could be counterproductive to many of the other objectives of the Bill.

The Minister will know that when you have three economists in a room you will get six different opinions.  I am concerned to see how that might play out in the form of legal challenges.  We will inevitably have economists representing those who, whether they are applicants or objectors, have considerable vested interests.  How do we make those judgements?  How do we stand over them in a court of law?

Indeed, how does the Planning Service — Planning NI, I should say — make those decisions, given that there are, to the best of my knowledge, no economists in planning?  They are planners; they are not economists, and whilst indeed they are experts in their field, I fear that this may put a responsibility on them that is not specific to the arena of planning.

Again, I have to ask: whose economic advantage and disadvantage?  By definition, certainly in the case of commercial developments, it will be to the economic advantage of the applicant.  Presumably they believe so, or they would not put the application forward.  What if a development impacts on house prices in an area?  Is that a material economic consideration?  It has not been to date, and it is probably right that it has not been.

Again, what about competitor businesses?  If an application is to their economic disadvantage, whose profit will be given the greater weight — the existing business or the applicant?  Again, I am interested to hear about that in feedback from the Minister.  However, I have concerns that it could turn out to be a legal minefield.

I often sit beside Mr Allister, but it is very rarely that we stand side by side.  I think that he would agree with that as much as I believe it.  I share his concerns about how clause 10 would enable the Department to appoint those who chair and provide recommendations on article 31 applications.  I have serious concerns about the perception of the independence of the process.  I think, quite rightly, that the independence of the process is compromised if, as Mr Allister pointed out, the Department is a party to a dispute and appoints the person who will referee it.

Having sufficient safeguards in place might alleviate some of my fears, but my reading of clause 10 is that it takes out the numerous safeguards that were in the original Act — the Planning Act 2011.  Those safeguards were consulted on and approved by the Assembly.  I very much believe that to be a significant change, and, again, there was no public consultation on it.  Indeed, in his opening remarks, the Minister made little reference to it.  Should the Bill go through the full Assembly processes, I ask the Minister to confirm whether that amendment will remain in place post-RPA, which is when the 2011 Act will come into force.  The change is significant, and I am keen to hear whether it is proposed that it be temporary or permanent.

Another question that I have on that proposal is whether it will apply to applications that are currently in the system.  If it does, that would raise further suspicions that the Minister and the Department are seeking to put through something that would give them greater power to make decisions on current applications in the way in which the Department wants.

As I said at the start of my speech, I am disappointed that there is still no third-party right of appeal.  I stand over my point that, given the Bill's objective, new clauses should not have been introduced.  However, if we were to introduce new clauses, introducing one on third-party right of appeal would have been beneficial.  I know that the issue was debated in the Assembly and that it received cross-party support.  The only exception to that support was the DUP, which tabled a petition of concern.  I think that that was a misuse of the petition of concern, and it raises the question of whether the DUP, whose Members are no longer present, is the party of the developers' union.  I am all for trade unions — I am a big supporter of them — but we need transparency in the arrangement between developers and political parties.  Indeed, if we are to have public confidence in the planning process, it is essential that we have transparency in political funding, especially when we devolve these powers to councils.  As I said, there are certainly concerns about safeguarding against incorrect decisions and councillors not being influenced by other factors.

Before I conclude, I have one further question for the Minister.  Where do the Bill and the Planning Act 2011 sit with plan-led development?  Is it still the Minister's intention to implement that?  BMAP is a perfect example of the time, energy, finance and effort that can be put into developing such plans.

Area plans are a sensible way to take that forward, but the original intention was to give them primacy.  Is that still the intention?  If so, what is the timeline?

In conclusion, planning is fundamental to how our society functions.  It affects our health and well-being, our environment and our economy.  Planning legislation and policy is one of the most important aspects for Governments, this Assembly and, soon, for councils.  We need a system that is fair, efficient, transparent and accountable.  It should be, and rightly is, underpinned by the principles of sustainable development.  In my view, that should not be compromised.  In that regard, I have some concerns about the Bill.  There is much in it to recommend; I will be happy to see it going to the next stage, but I would like it to be revised as it goes through the Assembly.