Planning law is a prime example of the complexities that can arise with the ever-increasing divergence between the laws of England and those of Wales. Planning is a complicated area in its own right and it is now even more so across the Welsh border.
Take, for instance, the Business and Planning Act 2020, which received royal assent on 22 July. This contains temporary changes to planning law prompted by the impact of Covid-19 as well as permanent changes relating to certain planning proceedings. It takes some drilling down to establish that these provisions, while “extending” to Wales as well as England, only “apply” to England but that “corresponding provision [would] be within the competence of the National Assembly for Wales”.
To quote the Law Commission “…it is becoming increasingly difficult to identify what the planning law of Wales actually is”.
How did we get here?
The Welsh parliament, officially “Senedd Cymru”, (formerly the National Assembly for Wales and renamed in May 2020) was granted the right to make primary planning legislation by the Government of Wales Act 2006. That right moved to a different footing under the Wales Act 2017, which introduced a “reserved powers model” of devolution, with the result that law-making power has now transferred to the Senedd on all subjects other than those specifically reserved to the UK parliament.
In broad terms the list of reservations includes planning in relation to “relevant” nationally significant infrastructure projects, defined by reference to the Planning Act 2008 and including the construction of generating stations, most pipelines and harbour facilities. These apart, Senedd Cymru has legislative competence in relation to all planning matters, including the community infrastructure levy.
There is a further level of complexity in that there is still only one single legal jurisdiction of England and Wales. This means that new legislation made in Westminster in relation to planning or any other devolved area of law “extends” to Wales but does not “apply” to Wales.
Welsh planning law and policy
Despite devolution, the main pieces of primary legislation relating to planning in Wales continue to be the Town and Country Planning Act 1990, the Planning and Compulsory Purchase Act 2004 and the Planning Act 2008.
A Welsh government consultation in 2013 entitled: “Positive Planning: Proposals to reform the planning system in Wales” resulted in the Planning (Wales) Act 2015, which became law in Wales on 6 July that year. The 2015 Act aims to provide a modern legislative framework for the operation of the planning system in Wales. However, rather confusingly, many of the changes it introduces are implemented through amendments to the above primary legislation as it applies to Wales.
The 2015 Act also sets out a “statutory purpose” for planning in Wales. This requires local planning authorities, the Welsh ministers and other public bodies to contribute towards sustainable development when undertaking any development plan or development management functions.
Another feature of the 2015 Act is that Welsh ministers are required to produce and keep up-to-date a national development framework. The NDF must cover a 20-year period and set out national policies in relation to the development and use of land in Wales.
The first NDF was due to be published this autumn. However an update on 16 July from the Welsh minister for housing and local government announced that the progress of the NDF has been delayed due to the Covid-19 pandemic. The current aim is to publish it in early 2021.
What’s ahead?
Despite the 2015 Act, it is widely acknowledged that the law governing town and country planning in Wales remains unnecessarily complex and almost impenetrable to a layman. The Law Commission was therefore asked by the Welsh government to review it.
The Law Commission’s Planning Law in Wales Final Report was published in November 2018. It noted that there are now in the region of 20 statutes governing planning and related matters in England and Wales, many of which apply very differently in the two countries, as well as a further eight applying in Wales alone. The report makes 193 recommendations for simplification and consolidation, including the creation of a new Planning Code for Wales.
The Welsh government issued an interim response in May 2019 in which the minister for housing and local government confirmed that the evidence produced by the Law Commission highlighted the problems caused by the current legislative framework and that simplification and consolidation of planning law were essential to remedy the situation. “It is also essential to the achievement of an efficient, effective and simple planning system that works for the specific needs of Wales”.
The government response also announced that work had already begun on a major Planning Consolidation Bill, which was likely to replace all the primary legislation relating to planning in Wales, including the whole of the Town and Country Planning Act 1990 and the 2015 Act.
So what next? Progress has no doubt been delayed by the current pandemic but the appetite for changing the Welsh planning framework is unlikely to have diminished, particularly as improving the accessibility of Welsh law is a priority of the Welsh government. It is a matter of when, not if. The more difficult question to answer is: will England follow suit?
Sian Skerratt-Williams is a knowledge of counsel solicitor, qualified in England and Wales, at Norton Rose Fulbright LLP
