Planning the future of Wales

Another flagship law was introduced to the National Assembly on Monday by Natural Resources Minister, Carl Sargeant (Lab, Alyn & Deeside).

The Planning Bill promises to be one of the most complicated, and controversial, laws of the Fourth Assembly. The Bill's here (pdf), explanatory memorandum (here).

Enjoy.

The need for a Planning Bill

Planning is a heavily-regulated and very complicated are of government,
and hasn't always favoured developers, leading to lengthy legal wrangles.
(Pic : planningportal.gov.uk)

The planning system has been designed to meet society's land use needs as well as – with increasing importance – manage the environment, or at the very least offset the negative environmental effects of developments.

This is the first significant Wales-only planning legislation since devolution, and most of the provisions in the Bill alter the Town & Country Planning Act 1990 and the Planning Act 2008, which were both passed by Westminster.

The Bill's overarching goal is to make development easier, whilst keeping in mind the need for "sustainability" and protecting both the natural environment and encourage the use of the Welsh language (heh).

Improved leadership and strategy from the top will be "more business-friendly", while the Bill also aims to clear up who's responsible for what, encourage developers to actively engage with communities before submitting a planning application, and identify "developments of national significance" – which will be determined by the Welsh Ministers themselves rather than local authorities.

What does the Planning Bill specifically propose?

Major developments of "national significance" will now be determined by the Welsh
government, while there are significant changes to how local authorities plan land use.
(Pic : Wales Online)

National & Strategic Planning

The Bill :

• Places a duty on Welsh Ministers to produce a "National Development Framework" (NDF), which will set out land use policy in Wales, and identify development types which would be of "national significance" (a replacement for the Wales Spatial Plan).
• Sets out the consultation requirements – such as when and how the public consultation takes place – which can be revised by the Welsh Ministers.
• Places a duty on Welsh Ministers to lay a draft copy of the NDF in front of the Assembly, and "have regard to" any motion passed by the National Assembly or an Assembly Committee relating to the plan within 60 days of the NDF being laid. The NDF needs to be reviewed every five years, but can be revised at any time (again needing to be laid in front of the Assembly).
• Gives Welsh Ministers the power to designate a part of Wales a "strategic planning area" (three are in the pipeline, based around Cardiff, Swansea and the A55 corridor), and sets out the duties of the local authorities to which the strategic planning area falls under. Each strategic planning area will need to draft a Strategic Development Plan, overseen by an independent Strategic Development Panel.
• Places a duty on local authorities to review their Local Development Plans after the publication of the NDF.
• Gives the Welsh Government compulsory purchase powers/duties with respect land that's suffered "planning blight" (a significant decrease in value as a result of strategic planning) due to proposals outlined in either the NDF or by a strategic planning area.
• Gives Welsh Ministers the power to order a local authority to withdraw their Local Development Plan, stating the reasons for doing so. It also gives Welsh Ministers the power to order a joint Local Development Plan between two or more local authorities (probably with council mergers in mind), and establish joint planning boards made up of two or more local authorities.

Pre-Application Procedures

The Bill :

• Will order developers who intend to submit a planning application for certain development types, specified by Welsh Ministers, to carry out public consultation before submitting the planning application.
• Gives Welsh Ministers the power to make regulations governing the pre-application services provided by local authorities, as well as the record-keeping relating to pre-application procedures.

Developments of National Significance

The Bill :

• Will mean planning applications for "developments of national significance" (DNS) will be made directly to the Welsh Government instead of local authorities.
• States that the criteria to meet the definition of DNS will be set out by Welsh Ministers – either in regulations or under the NDF.
• Gives Welsh Ministers the power to grant planning consent for developments separate from, but connected to, a DNS which would usually be considered by a planning authority (called secondary consent). It also gives Welsh Ministers the power to regulate the granting of secondary consents by planning authorities if they so wish.
• Places a duty on Welsh Ministers to notify any local authorities affected by a DNS in writing, and places a duty on local authorities to prepare a local impact report, giving details of the likely impact of the development in their respective area.
• Outlines precisely how a planning application to Welsh Ministers will be dealt with (i.e. public hearings, inquiries, notifying "interested persons").

Development Control

The Bill :

• Limits the amount of information local planning authorities can request relating to planning applications. Requests need to be "relevant and reasonable".
• Removes a requirement for design and access statements to be provided for planning or listed building consent applications - it looks like they'll become optional depending on the application itself.
• Places a duty on local planning authorities to serve notices on developments that don't comply with the information that was submitted with the planning application. The applicants will have a right to appeal to the Welsh Government (or an appointed person), and the Bill sets out the grounds for appeal.
• Gives planning authorities the powers to decline a retrospective planning application if enforcement notices have been served on any part of the development in the past.
• Grants Welsh Ministers the power to determine the format of decision notices issued by local authorities.
• Places a duty on developers to notify planning authorities when a development is due to start, and place notices near the area of development displaying this information.
• Makes changes to how long planning conditions last and how long they are valid for after changes are made to the application, or conditions are added or removed (too complicated to explain here).
• Enables the legal process to stop up or divert public rights of way (related - Bridgend) to begin before planning permission has been granted.
• Gives Welsh Ministers the power to regulate how local planning committees and sub-committees are structured, including the number of members and whether the functions are to be discharged by a committee, sub-committee, or officer.

Planning Enforcement

The Bill :

• Creates "Enforcement Warning Notices", which would be issued under circumstances where there's a breach of planning conditions, but there's a good chance that planning permission would be granted once a planning application is submitted. It also outlines the appeals procedure.
• Will block consecutive appeals in relation to unauthorised developments.
• Will prevent planning applications being altered after an appeal against a decision has been submitted.
• Transfers responsibility for determining appeals relating to developments that affect amenity of a neighbourhood from Magistrate's Courts to the Welsh Ministers.
• Gives the Welsh Ministers the power to recover costs relating to appeals from either/both the planning authority or the applicant.

Town & Village Greens

The Bill :

• Reduces the time it takes for making an application to create a "green" from two years to one year (after 20 years of "as of right" use has ended).
• Enables landowners to submit an application to commons registration authorities to end the use of land they own for sport and recreation "as of right".
• Sets out a number of conditions whereby a person would lose the right to register a town or village green (described as "trigger events").
• Grants Welsh Ministers the power to set fees for applications relating to registrations of town and village greens.

How much will the Planning Bill cost, if enacted?

The Planning Bill could result in a multi-million pound saving for
developers as the planning process will be streamlined.
(Pic : Wales Online)

This is the complicated bit.

Around 220 pages of the explanatory memorandum were dedicated to explaining the finances. Although you can't accuse Carl Sargeant and his legislative team of not being thorough, to make things easier for myself I've decided to stick exclusively to the Welsh Government's preferred options.

The costs for developing the NDF will fall on the Welsh Government alone, and will be around £435,000 over five years (until 2020), though this is around £100,000 more than monitoring the existing Wales Spatial Plan.

The preferred option for the sustainable development plans (which will supplement rather than replace local development plans), is for their development to be overseen by an independent body (strategic development panels). The costs will be borne by local authorities, and it's estimated it'll cost £3.5million to introduce strategic development plans, however these will lead to savings as LDPs will be quicker to produce – estimates put the saving figure of £1.9-3.3million in the ten south east Wales authorities alone.

The preferred option for withdrawal of existing LDPs will cost around £2,200 per case, but the withdrawal of an LDP would save a local authority around £1.7million over five years. Ordering the creation of joint LDPs would cost around £2,000 per case, but again would lead to savings of around £908,000 over five years.

Pre-application procedures will lead to an additional cost to developers of ~£365,000 per year. The benefits would be fewer objections and a "smoother application process". It's expected the fees relating to this process – which would be set nationally – would raise an average of £522 per case, and might actually save developers money because it would be a streamlined process.

The costs relating to "developments of national significance" - which would be determined by the Welsh Government and/or the Planning Inspectorate – will be an additional £242,000 per year. The fees to developers for these projects will be significant and potentially up to £236,000, with an estimated 3-4 applications of this type per year.

Changes to the appeals process for non-determination will cost the Welsh Government an extra £50,000 per year, but would lead to saving for local authorities (£90,000) and developers (£505,000).

Changes to decision notices will also save local authorities (£260,000) and developers (£750,000) significant sums of money as it'll remove the need to pay certain fees, and provide a consistent approach across Wales - saving processing costs. Displaying notices when development is due to begin will cost developers £15,000 per year, but save local authorities a similar amount.

The preferred option for changes to how planning committees are structured would potentially save local authorities a few thousand pounds each (the exact figure is undetermined), while changes to delegated powers would cost the Welsh Government £50,000 per year, but save local authorities and developers a combined £550,000 per year because of the consistent approach. Changes to enforcement procedures would save Welsh and local governments a combined £35,000. The cost of enforcement warning notices would be around an extra £6,000 to local authorities.

The changes relating to town and village greens will potentially save developers £147,000 per year and the commons registry authorities £27,000.

In total, the Bill will have up-front costs of around £6million, but would potentially save £8million. Most of the savings (said to be up to £3.5million) will fall on developers as the planning process will be streamlined. This would obviously have an unquantified positive economic impact.

Denn alles sitzfleisch, es ist wie gras

The Germans have a word – "sitzfleisch" – which not only means the bum, but an ability to endure unpleasant tasks or situations through mental stamina alone. Not wanting to sound too immodest, but 2014 is proving I have "sitzfleisch" by the buttock load.

As you can tell, this is an incredibly complicated law which comes close to rendering the explanatory memorandum impenetrable. I suffered flashbacks to the Williams Commission.

Those of us who bothered to vote in 2011 gave AMs the power to do this on our behalf, and we all deserve to know exactly what they're doing with those powers. That's why I do this, but there are bloody good reasons most people (let alone the media) don't touch Welsh law in any great detail, and the video above sums up perfectly what being a political blogger in Wales often feels like.

This is easily seven to eight hours work, and that's just me skimming it. It's a reduction of 450 pages of text to around 2,500 words. For a non-journalist, non-lawyer, who doesn't get paid to do this, that's close to performing magic.

Enough of that, it's time to see what this proposed law means.

The law - as I read it - will make it easier for developers to get
planning permission to build on unadopted open space.
(Pic : greenbuildingpress.co.uk)

First off, this is a significant transfer of power - some could say a centralisation of power - from local government to the Welsh Government. There are lengthy lists and tables of the number of matters that will be determined by Welsh Government regulations alone (although, in fairness, planning has always been regulation-based).

Planning is one of those areas I believe is best dealt with at a local level, and guided regionally and nationally. It looks like this law will mean planning in Wales is going to be partly decided nationally then guided regionally/collaboratively, with local authorities having less of a say.

Secondly, large aspects of this are almost a carbon copy of English planning reforms, underlining a distinct lack of original thinking by the Welsh Government and civil service – perhaps on purpose (as I'll return to later).

My reading of the Bill is that it will make it harder for people to protect unregistered open space from development, especially if the land was used informally in the past but has since fallen into disrepair (we can all think of land like this). My guess is that it removes a NIMBY argument against "loss of open space" in situations where that open space hasn't been used for several years.

It's likely the issues of open-cast mining and duties in relation to the
Welsh language will be the major amendments put forward by AMs.
(Pic : Wales Online)

Thirdly, what's perhaps more telling is what the Bill leaves out, and some of it's quite important.

The EnglandandWales Planning Inspectorate – Jac o the North has written extensively on this in the past (here, here, here) and I remember promising him I would return to this when the Bill was introduced. The Planning Inspectorate is an EnglandandWales body that's run almost colonially with respect Wales. How can they possibly determine "developments of national significance" when they don't cover a nation, but a legal jurisdiction? Presumably, they have to base their judgements on the perceived benefits to EnglandandWales as a whole. For example, I'm sure it's in the interests of EnglandandWales to put toxic waste dumps in the andWales bit. Without a Welsh Planning Inspectorate, some of the proposals in the Bill are open to abuse in a manner that would be anything but in the Welsh national interest.

Open-cast mining – Those AMs who've spoken out against open-cast are going to be disappointed....unless open-cast mining falls under "national significance" and becomes the responsibility of Welsh Ministers (I doubt it will because it'll be too controversial an issue for ministers to want to handle), and/or mines become subject to the pre-application procedures. This was an opportunity to enshrine aspects of MTAN 2 (pdf) in law to ensure open-cast mines were a minimum distance from residential areas, and/or place duties on mining companies to restore land properly when licences expire. I'd expect amendments to be prepared on this (probably from the Neath area, although I don't want to goad anyone into doing anything) and it could cause problems for the government if any amendments have enough backbench Labour support.

The Welsh language – Despite being on the front of the Bill, said to one of its "key aims" even, there's absolutely nothing within the text of the Bill itself referring to the Welsh language in planning policy, and the only reference to Welsh was in relation to record-keeping by strategic planning panels. The explanatory memorandum does say that Welsh will be considered as part of the strategic development plans and NDF, but mostly as outlined under the existing TAN 20 – which hasn't really satisfied anyone. It's becoming ever more apparent that Carwyn Jones isn't serious about the Welsh language, and that's already angered Cymdeithas yr Iaith - but when you think about it that suits Carwyn perfectly.

TL;DR version : It'll make the planning process a bit easier for developers, but this is in no way a mass cutting of "red tape". It adds another layer of strategic planning, which will increasingly be driven from Cardiff instead of local authorities.