Commissioning a new approach
A comprehensive report by the Law Commission is expected to result in a shake-up of planning in Wales
The Law Commission has a plan for planning in Wales.
It recently published a comprehensive report recommending a new planning code for the country.
It highlights the shortfalls of a Welsh planning system which shows signs of a distinctive national planning policy but on the other is still bewilderingly complex in parts. Since 2000 there have been six Acts of Parliament and four Acts of the Assembly. It is often not clear whether the growing number of provisions made by the Assembly in Cardiff and Parliament in Westminster apply to Wales only, to England only, or to both England and Wales, the Commission has noted. Practitioners who operate in both jurisdictions will be only too aware of this confusion.
High time, then, to consolidate these diverse provisions into a single, simple and easy to navigate planning act, which the Commission hopes will be passed this Assembly term.
A willingness to listen
The Commission received more than 160 formal written submissions to its request for feedback, and it admits these ranged from parties who were of the “if it isn’t broken, don’t fix it” mind-set to those more enthused by the idea of greater codification of planning law. The latter, more proactive, group made up the “greater majority” of the responses to the Commission’s consultation, it says.
The finished report touches on a broad range of planning concerns that touch all aspects of the built environment in Wales – from prosaic procedural matters to be taken into account when embarking on routine, domestic development to steps designed to safeguard listed buildings and forests.
Easy does it
A consistent theme in the report is the Commission’s willingness to defer to the opinions of those stakeholders currently most active in Welsh planning, so as not impose top-down wide-ranging reform without buy-in from the sector. Some very wide impact suggestions – for example the abolition of outline planning permission and listed building consent – have not made the cut (in the former case due amongst other concerns to a perceived negative impact in investor confidence).
However, even if such reforms don’t take their place immediately in any new Wales planning code, their presence in the raft of proposals initially made by the Commission may act as a signpost to future reforms.
A vision for the future
While not all proposals have therefore been taken forward, those that did will certainly still shake-up the sector, with 193 recommendations having now put forward to the country's lawmakers. Some of the key suggested reforms are as follows:
- Amendments to the definition of "Development" to widen its scope and create clarity, with the corresponding permitted users diverted to an extension to the GPDO
- Abolition of enterprise zones and simplified planning zones
- That the procedures for applying for certificates of lawful development be included alongside those relating to planning permission rather than linked to enforcement (in effect this was the case prior to 1991)
- New ability for a developer to apply for a certificate that all pre-commencement conditions have been complied with but coupled with a deeming provision that in the event of a commencement in breach, the rest of the permission would in any event be deemed to be granted so that the other conditions may subsist and be enforceable
- Section 73 of the Town and County Planning Act 1990 amended to apply to any amendment to a planning permission, not just to conditions
- Merger of conservation area consent with planning permission such that demolition would only require planning permission
- Reinstatement of specific provisions to enable planning authorities in Wales to deal with graffiti and fly-posting
- Removal of several archaic definitions including dwelling houses and curtilage and replacement with modern terms
- Simplifying the law on High Court challenges.
The Welsh Government is due to provide its interim response to the report in May 2019 – with a detailed response expected by the end of the year. These proposals, if adopted, will provide a welcome simplification of the current system for practitioners and the increased efficiency can only be a benefit for development in Wales in a post-Brexit era.