Five key changes in store for Welsh planning

The Welsh Government's planning bill, scheduled to take effect next year, promises a national plan, sub-regional plans and considerably more. John Cottrell explains.

Welsh Government: legislation would empower it to serve as recourse for developers in certain circumstances
Welsh Government: legislation would empower it to serve as recourse for developers in certain circumstances

The planning system in Wales has been fairly constant in the past ten years, but this is set to change. Since the ‘yes’ vote in a 2011 referendum enabled the National Assembly for Wales to pass planning laws without the UK Parliament’s agreement, the Welsh Government has been drafting legislation and policy proposals to embed sustainable development in Welsh decision-making. The proposals cover planning as well as housing, environment and heritage.

After last December’s consultation document Positive Planning, which set out proposals to modernise the nation’s planning system, the Welsh Government published the Planning (Wales) Bill on 6 October, which it hopes will achieve Royal Assent in 2015. Six further consultation papers on various aspects of the bill, secondary legislation and changes to planning policy were issued in subsequent days.

The bill should be applauded as a recognition by Welsh minister for natural resources Carl Sargent of the importance of planning and its role in delivering houses and jobs. But it also acknowledges that promoting growth has to be balanced against the need to protect Wales’s unique landscapes and its heritage assets. A developer’s charter it is not.

It is fairly narrow in its scope, intending to add to the 1990 Town and Country Planning Act rather than rewrite it. It includes some important changes to development management (see panel, opposite)such as revising the operation of committees, enabling the frontloading of appeals, proposing removal of Design and Access Statements, streamlining appeal procedures for validation disputes and restricting applications for town and village green status. It also provides for a step-change in spatial planning by addressing cross-boundary issues via national and sub-regional statutory development plans, which are not constrained by arbitrary lines on a map. The significant changes it sets out are as follows.

1. A new National Development Framework

The bill provides for a National Development Framework (NDF) that will take its place in planning authorities’ statutory development plans alongside local development plans, and, where relevant, the strategic development plan (SDP). It aims to concentrate on land-use issues of national significance and identify key locations for infrastructure investment, setting the framework for strategic and local level plans on nationally significant matters. Developments of national (i.e. Welsh) significance above a certain scale are to be determined by Welsh ministers. Larger infrastructure developments will still be addressed through the UK’s existing Nationally Significant Infrastructure Projects regime, set up under the Planning Act 2008. The bill makes clear that the NDF will not set housing or employment targets.

Consideration of such infrastructure development at a national level seems appropriate, although it may not be welcomed by individuals directly affected by each proposal. Decisions are to be taken in accordance with national policy, with the positive and negative impacts considered on a countrywide basis. The bill provides for development’s effects to be tested by an environmental impact assessment (EIA) and for local interests to be taken into account through this process. The new strategic level of planning will provide necessary policy direction, but omitting housing and employment targets from this tier may yet prove to be a missed opportunity.

2. New sub-regional plans

The bill provides for three strategic planning panels, based around Cardiff, Swansea and the A55 corridor in north Wales, to take responsibility for producing SDPs. It envisages these SDPs extending beyond existing local authority borders, aiming to provide a statutory basis to resolve cross-boundary issues such as housing, employment, waste and transport. The strategic panel will comprise two-thirds elected members from the local planning authorities and one-third members from organisations seen to have a social, economic or environmental remit. The latter will be nominated by a body appointed from a Welsh Government list.

Dealing with cross-boundary issues at this strategic level should help improve coordination and commitment to delivering sustainable development across highly populated areas. But it remains unclear exactly how the plan areas will be defined. The inclusion of non-elected bodies on the panels may also prove controversial. It is difficult to strike the right balance in terms of locally elected representation and technical expertise. While the proposed two-to-one ratio in favour of elected members on each panel does not seem inappropriate, there may be criticism of a democratic deficit.

3. Local development plans

According to the bill, local development plans (LDPs) will be retained, but these will need to be reviewed to ensure consistency with both the NDF and SDPs. In strategic panel areas, these should offer a lighter touch, the bill says. The provision for adopted plans to have an end date beyond which they will be deemed to have expired is a positive inclusion. This will place the onus on local planning authorities to adopt their LDPs in a timely manner, and should be welcomed as it will provide greater certainty for applicants, members and the communities they represent.

4. Mandatory public consultation ahead of applications

The bill introduces mandatory pre-application consultation with the requirement to produce a pre-application report that will most likely include public consultation. The thresholds for applicable development are not set out in the bill. These measures provide a constructive opportunity for communities with valuable local knowledge to work with applicants towards mutually acceptable proposals. There will be a need for applicants to listen to the community and to respond positively where possible. However, local communities will also need to engage in mature conversations about the need for growth and the benefits of investment. A shift away from anti-development sentiments will be required if meaningful progress is to be made.

5. Increased powers for Welsh ministers

A number of provisions in the bill seek to increase the power of the Welsh Government. In addition to national infrastructure, applicants may in limited circumstances apply for planning permission directly to ministers, which probably amounts to a warning shot to poorly performing authorities. In this way, the Welsh Government should be able to provide specialist expertise on issues that local planning authorities may be struggling to resource. However, if this is to be effective, the Welsh Government must be responsive and ensure that its service, probably provided via the Planning Inspectorate, represents a genuine alternative for applicants. Current experience of the Welsh Government is that it can be slow to respond, for example in screening EIAs ahead of appeals, so there will need to be strong leadership and something of a change in culture if this is to be a realistic and preferable route to a better planning service.

In general, the four themes underpinning the Positive Planning paper – supporting cultural change, active stewardship, improving collaboration and improving local delivery – are still evident through the bill and associated consultation papers. The changes are largely positive, and the intended changes to sustainable development across Wales should be welcomed. The bill, however, is a means to an end and not an end in itself. The challenge for the Welsh Government will now be to ensure that the intent is translated into reality by showing strong leadership and instigating a culture change that focuses on results.

Development Management Measures in the Bill

Delegated decisions

The bill aims for a more consistent, efficient approach to determining applications. It would enable ministers to cut the number of applications going to planning committee via a "national scheme of delegation" and prescribe planning committees’ composition.

Appeals reforms

Proposed reforms emphasise frontloading evidence preparation and statements of common ground, to cut timescales and help transparency. Perhaps unhelpfully, the reforms would remove scope to make minor changes to plans once an appeal is lodged.

Town and village green

Land that has "entered the planning system" through a development plan or application would no longer be able to be designated a town or village green (TVG). The aim is to ensure that planning and TVG legislation is consistent and that TVG registration is not simply used to frustrate development.

Design and access statements

The bill seeks to remove the specific legal requirement for a development order to provide for a statement to accompany applications and listed building consents. This will allow the Welsh Government to review the requirement for design and access statements in the near future. It is a direct response to criticism of a process that is often seen as a tick-box exercise for validation purposes.

Validation disputes

To resolve validation disputes, a right of appeal against an authority’s decision not to register a application is also proposed. This would use a streamlined appeal procedure administered by the Planning Inspectorate, – similar to that currently in place in England.

John Cottrell is a senior director at Nathaniel Lichfield & Partners

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