Geldards has submitted a response to the consultation carried out by the Law Commission on planning law in Wales.
The Law Commission’s project has been developed in recognition that planning law in Wales is complicated and the increasing divergence between the law in England and Wales has made it difficult to identify what the planning law of Wales is. A report on the response to the consultation will be taken into account in the production of a new Planning Code for Wales, which is expected to attain Royal Assent in 2020.
The Law Commission project builds on the reforms to the planning system in Wales made by the Planning (Wales) Act 2015. The new Planning Code is the pilot project for the adoption of a codified approach to Welsh legislation proposed in the Law Commission’s Report on the Form and accessibility of the Law Applicable in Wales (2016) which was accepted by the Welsh Ministers.
The response was submitted by Planning Partner and Vice Chairman Huw Williams who has served as a member of the Law Society’s Planning and Environment Law Committee and who was a member of the Welsh Ministers’ Independent Advisory Group on Planning whose 2012 Report “Towards a Welsh Planning Act: Ensuring the Planning System delivers” formed the basis of the Planning (Wales) Act.
The response agrees with much of analysis of the Law Commission and supports several of the proposals in the consultation paper. It also develops some of the proposals from the Law Commission by making suggestions such as:
- In addition to the Code providing for the likely effect on the use of the Welsh language to be one of the relevant considerations to which a public body must have regard when exercising any function under the Planning Code the response suggests that the Code should also have the power for Ministers to designate areas where special regard should be paid to the effect on the use of the language. This power could be used to give enhanced protection to the linguistic character of areas where the Welsh language is strong.
- The response also agrees with the proposal that there should be legislative recognition of the influential role of policy in planning law reflected in a provision that public bodies should be required to have regard to Welsh Government policy when exercising any function under the Planning Code. The response suggests that a statement which a Minister intends to be a planning policy statement should expressly state that it is such for the purposes of the Code.
- The Planning Code should seek to make clearer the relationship between the planning system and the well-being duty imposed on public bodies by the Well-being of Future Generations (Wales) Act 2015. The response also suggests that where a planning decision is taken in line with a Local Development Plan which has itself been prepared in accordance with the duties under the Well-being Act then this should be sufficient to comply with the Well-being Act.
- The proposed simplification of the Environmental Assessment of Plans and Programmes (Wales) Regulations 2004 should await the conclusion of the negotiations on the UK’s withdrawal from the European Union.
- The proposed abolition of outline planning permission is supported. The response makes detailed suggestions for arrangements to enable applicants to elect to either submit full details or to apply for approval in stages, as well as a method resolving disputes as to the content of applications.
- The appropriateness of a condition precedent should be determined according to whether it is necessary to make the development acceptable and whether it is relevant to the development and to planning generally. The response suggests a mechanism for resolving disputes as to whether a condition is properly a condition precedent at the point permission is given.
- The merger of listed building consent and planning permission is supported but detailed suggestions are made as to how the special regard to be paid to listed buildings should continue to apply and be emphasised under a combined system.
Huw Williams commented:
“I welcome the consultation paper and see it as an opportunity to provide Wales with a competitive advantage by offering a clear and coherent system that has the capacity to deliver sound planning decisions more quickly and consistently than at present, as well as delivering the national sustainable development goals. This prospect has guided the response to the consultation questions.”